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Supreme Court Interprets Dormant Commerce Clause and the Pike Balancing Test in National Pork Producers Council v. Ross

Tax Development May 16, 2023

Supreme Court Interprets Dormant Commerce Clause and the Pike Balancing Test in National Pork Producers Council v. Ross

In a recent decision,1 the U.S. Supreme Court held that the National Pork Producers Council’s lawsuit regarding California restrictions on pork sold within the state did not state a claim as a matter of law. This was a highly anticipated decision not only in the outcome of the case, but as the first Commerce Clause case decided by the Court since South Dakota v. Wayfair.2

In 2018, Proposition 12 was passed in California which, among other issues, forbids the in-state sale of whole pork meat that comes from breeding pigs (or their immediate offspring) that are “confined in a cruel manner.” [Cal. Health & Safety Code Ann. § 25990(b)(2)]. Confinement is “cruel” if it prevents a pig from “lying down, standing up, fully extending [its] limbs, or turning around freely.” One purpose of this provision was to mandate that all pork sold within the state was produced in breeding enclosures providing at least 24 square feet per animal. The provision applied to all pork sold in California, regardless of where the animal was raised.

The National Pork Producers Council and the American Farm Bureau Federation filed this lawsuit on behalf of their members who raise and process hogs, proposing that Proposition 12 violates the U. S. Constitution by overly burdening interstate commerce. It was estimated that the cost of compliance with Proposition 12 would increase production costs for all producers and increase costs for Iowa producers alone by $350 million to comply with the California standards. Because California imports almost all the pork sold in the state, most of the burden of compliance costs would be borne by out-of-state firms.

In this case, the Court held that the dormant Commerce Clause would only apply in cases where there is discrimination between in-state and out-of-state taxpayers, or where a state exercises economic protectionism. However, as Proposition 12 applies equally to all pork producers, the petitioners have not alleged that the California law offends this principle. The petitioners allege that case law3, which the Court was quick to differentiate, suggests an additional rule that forbids the enforcement of state laws that have a “practical effect of controlling commerce outside the State,” even when those laws do not purposely discriminate against out-of-state interests.

In rejecting the arguments of the petitioners, the majority opinion stated that companies that choose to sell products in various states must normally comply with the laws of those states. Justice Gorsuch stated, “While the Constitution addresses many weighty issues, the type of pork chops California merchants may sell is not on that list.”

It should be noted that although Proposition 12 was approved by voters five years ago, implementation of all provisions was stayed by pending litigation and by efforts to design enforcement guidelines.

This decision is interesting on so many fronts. First is the fact that the majority opinion, and all of the decisions that concurred in part, did not object to an analysis under the dormant Commerce Clause. In fact, the opinion goes to great lengths to follow the history of the doctrine. In more recent years, several U.S. Supreme Court Justices who are considered “strict constitutionalists” have called to do away with the dormant Commerce Clause. Most vocal in this position is Chief Justice Thomas who has authored several opinions and concurrences advocating for the abolishment of the dormant Commerce Clause.4 Recently, Justice Gorsuch has indicated that he might raise his voice in opposition to a portion of the dormant Commerce Clause. “My agreement with the Court’s discussion of the history of our dormant Commerce Clause jurisprudence, however, should not be mistaken for agreement with all aspects of the doctrine.”5 Neither Thomas nor Gorsuch objected to the analysis under the dormant Commerce Clause. In the majority opinion, Justice Gorsuch concludes that the statute at issue does not discriminate against interstate commerce, and, therefore, does not violate the dormant Commerce Clause.

This is also the first case considered by the Court which discusses the Pike6 balancing test, since the Court recommended its use in the determination of constitutional viability of a statute in Wayfair. Petitioners argued that if a cause of action is not stated under the dormant Commerce Clause, the Court must look at the practical effects of the law. The petitioners suggest that the Court view Proposition 12 under the Pike balancing test as to whether the restrictions imposed by the law outweigh the potential benefit of the law. To this question, the Court held that the Pike balancing test is inextricably linked to the antidiscrimination element of the dormant Commerce Clause. If discrimination does not exist, an analysis under Pike is not needed. Under Pike, the petitioners need to show that the challenged law imposes substantial burdens on interstate commerce before a court can consider the potential benefits. The Court found that the complaint failed to make this assertion.

Further, Justice Gorsuch states that the petitioners in this case seek to expand the Pike test by allowing the Court to strike down a statute based on its assessment as to the costs and benefits of a statute. The majority overtly disavowed this expansion of its authority. The Court concludes that the public, by way of enactment of Proposition 12, is in a better place to weigh the costs and benefits, even more so than the Court.

However, in the dissenting opinions, several Justices disagree with the Pike analysis as outlined in the majority opinion and would reconsider this case under the Pike principles. In Chief Justice Roberts’ dissent, he calls for the expansion of Pike that “would permit judges to enjoin the enforcement of any state law restricting the sale of an ordinary consumer good, if the law threatens an ‘excessive’ ‘harm to the market.’” He asserts that although balancing competing interests is sometimes impossible, it does not, therefore, negate the need to do so.7 Because the impact of Proposition 12 will be felt by pork producers, primarily in the Midwest and North Carolina, the burden imposed by the law must be weighed against its benefits.

Justice Kavanaugh’s dissent comes to the same conclusion; however, he cites the fact that the California market is so big, that any restrictions imposed by the state will necessarily impact interstate commerce. In addition, he provides an interesting twist, not only suggesting that the law be analyzed under the Pike balancing test but suggests that the case also be considered under the Import-Export Clause, the Privileges and Immunities Clause, and the Full Faith and Credit Clause.

Chief Justice Barrett filed a concurrence that the case should be retried under the Pike balancing test. Meanwhile, Chief Justices Sotomayor and Kagan agree with the majority that the petitioner has failed to allege a substantial burden on interstate commerce, which is the precedent to invoke the Pike balancing test.

What we can glean from this precedential opinion is that a challenge of a law under the dormant Commerce Clause is still viable, but the cause of action needs to assert discrimination. The same can be said, at least based on the majority opinion, for the use of the Pike balancing test. The petitioner must allege that a law is discriminatory to have a court balance the benefits and burdens of the law. One interesting element of this case may be Justice Kavanaugh’s discussion of the use of other constitutional clauses for evaluating the constitutionality of statute. This is just the beginning of this line of jurisprudence. Time will tell as to how the Court and judicial precedence moves forward.

1 National Pork Producers Council et al. v. Ross, Secretary of the California Department of Food and Agriculture, et al. No. 21–468. May 11, 2023.

2 South Dakota v. Wayfair, Inc., 138 S.Ct. 2080, 2100 (2018).

3 Pike v. Bruce Church, Inc., 397 U. S. 137 (1970).

4 Camps Newfound/Owatonna, Inc. v. Town of Harrison, 520 U.S. 564 (1997); Wyoming v. Oklahoma, 502 U.S. 437 (1992); Quill Corp v. North Dakota, 504 U.S. 298 (1994); United Haulers Ass’n v. Oneida-Herkimer Solid Waste Management Authority, 550 U.S. 330 (2007); Comptroller of Treasury of Maryland v. Wynne, 135 S. Ct. 1787 (2015); and South Dakota v. Wayfair, Inc., id.

5 Justice Gorsuch concurring in South Dakota v. Wayfair, Inc., id.

6 Pike v. Bruce Church, Inc., 397 U. S. 137 (1970).

7 One interesting reference in Chief Justice Roberts’ opinion is with respect to the comments made by the Ninth Circuit in the Appeals decision of this case, “while the dormant Commerce Clause is not yet a dead letter, it is moving in that direction”: 6F 4th 1021, 1033 (2021).


Mark L. Nachbar

Mary Bernard

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