by John F. Savarese, Kevin S. Schwartz, Noah B. Yavitz, Adam L. Goodman, and Jacob Miller
From left to right: John F. Savarese, Kevin S. Schwartz, Noah B. Yavitz, Adam L. Goodman, and Jacob Miller (Photos courtesy of Wachtell, Lipton, Rosen & Katz)
Recently, a divided Supreme Court upheld the constitutionality of a California law banning the in-state sale of meat from pigs confined under specified “cruel” conditions. Petitioners — two industry organizations — had alleged the law violates the Commerce Clause by imposing substantial costs on out-of-state producers and impermissibly regulating the national pork market. This challenge marked an effort by the industry to expand the so-called “dormant” Commerce Clause, which polices states’ ability to enact regulations with interstate impact when Congress has chosen not to act in the field sought to be regulated by a state. That effort failed. In National Pork Producers Council v. Ross, all nine Justices rejected petitioners’ argument that there exists an “almost per se” rule forbidding enforcement of state laws that have the practical effect of imposing prescriptions on commerce outside the state.
Writing for the Court, Justice Gorsuch reaffirmed that the dormant Commerce Clause targets laws that purposefully discriminate against out-of-state economic interests — not neutral regulation incidentally affecting national commerce. Despite the Court’s consensus on the limits of the dormant Commerce Clause, however, it did not produce a majority opinion resolving petitioners’ other primary argument, that the California law runs afoul of Pike v. Bruce Church, Inc., 397 U.S. 137 (1970), which held that even facially neutral laws are invalid if the “burden imposed on [interstate] commerce is clearly excessive in relation to the putative local benefits.”
The application of Pike splintered the Court into atypical blocs. A plurality comprised of Justices Gorsuch, Thomas, Sotomayor, and Kagan concluded that petitioners’ complaint did not plead that the challenged statute imposed a “substantial burden” on commerce, a threshold requirement for invoking Pike. Justice Barrett (joined by Justices Gorsuch and Thomas) concurred in the result but would have gone further, holding that Pike cannot apply where the burdens and benefits of a challenged statute are not economic and therefore incommensurable — such as the intangible considerations of animal welfare and food safety that partially underlay California’s pork regulation. The dissenters, in an opinion that joined Chief Justice Roberts with Justices Alito, Kavanaugh, and Jackson, would have vacated and remanded for Pike balancing.
This decision of course has major implications for the multi-billion-dollar pork industry. But as suggested in a partial concurrence authored by Justice Kavanaugh, the ruling’s implications could extend much further. The decision could embolden states to pass legislation with predictable effects beyond their borders — perhaps laws imposing prescriptions that increase costs on disfavored industries, or laws that seek to penalize companies for their positions on contentious social issues. Careful attention should be paid to how states seek to leverage the decision moving forward, and to the best framing of future legal challenges in light of this complicated and fractured decision.
John F. Savarese, Kevin S. Schwartz, Noah B. Yavitz, and Adam L. Goodman are Partners and Jacob Miller is an Associate at Wachtell, Lipton, Rosen & Katz. This post first appeared on the firm’s website.
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