10 a.m. on a Thursday is a bit early to have pork chops on the brain. But that’s the frame of mind in which Justice Neil Gorsuch found himself on the morning of May 11, when the Supreme Court handed down its decision in the much-anticipated Commerce Clause case National Pork Producers Council v. Ross. The question: whether the Constitution permitted California to pass a law regulating pork sales in its territory when most of the law’s effects would fall on businesses elsewhere. Per Gorsuch, “While the Constitution addresses many weighty issues, the type of pork chops California merchants may sell is not on that list.”
Yet, somehow, Justice Gorsuch procured only five votes for this seemingly simple result. And many of his reasons for that result failed to win a majority. That’s because, despite his pithy summation, much more than pork was at issue. The numerous separate opinions (five total) and heterodox groupings of justices—Ketanji Brown Jackson with Samuel Alito and Sonia Sotomayor partially with Clarence Thomas—evidence the deep, cross-cutting divisions among the Court’s members on the case’s core issue: the extent to which the Constitution displaces state sovereignty to ensure open markets.
Notably, California persuaded three of the Court’s most conservative Justices—Thomas, Gorsuch, and Amy Coney Barrett—to accept that the state could adopt a law affecting the whole nation’s pork production. If that sounds a little implausible, then delving into some particulars is worth our while. The result is more conservative than it first appears.
The Commerce Clause vests Congress with, among other things, power to regulate commerce “among the several states.” Historically, courts have interpreted the clause so broadly that its mere existence prevents states from enacting certain laws that affect commerce even where Congress has not legislated. This preclusion by implication is known as the “dormant Commerce clause.”
Because Congress had not enacted relevant legislation, the pork producers maintained that the dormant Commerce Clause prevented California from intruding on their operations. Although the regulated pork producers animated the proceedings, at its core, the case was not about the rights of business owners, but about the right of states to regulate where the federal government has not. When interpreting the Commerce Clause, the courts are necessarily “marking out the powers of separate sovereigns.”
All three conservatives siding with California have been described by Professor John McGinnis as the Court’s staunchest originalists. This methodological commitment to understanding the Constitution in general, and the Commerce Clause in particular, according to its original public meaning impelled these Justices to side with state sovereignty over free-market-ism.
On its face, California’s law, adopted after 63% of voters approved it, affected only pork sold in California. California could not constitutionally regulate pork sold elsewhere. But the pork producers argued that the size of California’s marketplace and their need to standardize production practices meant that the state’s law had an “extraterritorial” effect. According to the pork producers, California’s law offended not only the dormant Commerce Clause and the wisdom of free markets, but the foundational precept of federalism: equality among the sovereign states.
This teed up an intramural debate among the six conservative Justices over where the Founders struck the balance between reserving regulatory authority to the states and promoting an open national marketplace. Justice Brett Kavanaugh, who joined Chief Justice John Roberts’ principal dissent, wrote separately to explain that the Framers drafted the Constitution to “create a national economic market and overcome state restrictions on free trade,” and that the people ratified that Constitution to “foster[] free trade among the States.” Kavanaugh conceded that absent congressional action, states may impose “regulations for products sold in that State,” but he bristled at the notion that these would have effects elsewhere and could be premised on non-economic concerns.
Gorsuch’s view was more nuanced. “In our interconnected national marketplace, many (maybe most) state laws have the ‘practical effect of controlling’ extraterritorial behavior,” he reasoned. The Founding generation had not commissioned any branch of the federal government (let alone the judiciary) to eradicate every law that made trade in some sense less free. Nor did they insist that restraints on trade be enacted only for economic reasons lest they be held unlawful. Rather, their concern was with ending protectionist laws that states enacted to exclude or disadvantage out-of-state enterprises. The pork producers conceded that, for all its ill effects, discrimination against out-of-state producers was not a feature of California’s law.
We can infer that the Founding generation saw no constitutional infirmity in other forms of trade restrictions because, as Gorsuch notes, “[s]ince the founding, States have enacted an “immense mass” of “[i]nspection laws, quarantine laws, [and] health laws of every description” that have a “considerable” influence on commerce outside their borders.” Among these have been laws restricting cruel treatment of animals meant for slaughter, which have a history spanning from the California law at issue to the early decades of our colonial infancy.
So, what has changed? Not the Constitution, not in any relevant way. Rather, the changes have been to the character of industry, the nature of market participants, and increased skepticism of state power. In the Founding era, the private corporate form was a rare, regulated privilege conferred by state legislatures on enterprises with limited geographic reach. Now unlimited corporate lifespan, capitalization, and global presence enable the type of market structure prevailing in the pork industry, where four vertically integrated producers control roughly 70% of the U.S. market. The market’s structure and concentration contribute significantly to California’s ability to project its law’s effects outside its territory. Smaller, regional enterprises, of course, could shrug at foreign laws.
A law that might have affected interstate commerce little if at all at the Founding, now will have “substantial” effects on interstate commerce. Even Justice Barrett, who otherwise agreed with Gorsuch, conceded that the effect of California’s law was substantial. This is not because states are now writing more invasive laws; it is largely because enterprises now consolidate what were once local businesses into vast, nation-straddling entities present in every marketplace. Do these market dynamics expand the dormant Commerce Clause over time while shrinking the scope of state sovereignty? That seems to follow from the approach approved by Roberts, Kavanaugh, and their fellow travelers, Alito and Jackson.
Gorsuch’s view is more faithful to the Founders’ design. As Justice Antonin Scalia once explained by quoting Justice Felix Frankfurter, a doctrine which silently removed so much authority from the states “would hardly have been publicly avowed in support of the adoption of the Constitution.” While the Constitution is solicitous of commerce, it does not protect “particular structure[s] or methods of operation.” The current configuration of the pork market may be economically expedient, but it is not constitutionally sacrosanct.
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And as much as one can infer the Founders’ desire to promote freer markets, no inference is needed to see that their Constitution protects state sovereignty. Courts have long recognized that states have the police power, among whose proper objects are public morals, and that negation of state sovereignty, which predates and survived the creation of the union, cannot be lightly inferred from vague language. So it is not evident how that sovereignty can be gradually eroded by a judicial doctrine that Scalia described as lacking “any clear theoretical underpinning.”
Rather than embodying the Founders’ commitments, the dormant Commerce Clause—a shadow-like emanation from the written Commerce Clause—has more in common with the “penumbras” and constitutional dark matter discovered by the Warren Court to imagine whole new categories of individual rights. And as an evolving doctrine that chases after changes in market structures, it looks more like living constitutionalism for business than principled adherence to original meaning. Gorsuch, Thomas, and Barrett saw no opportunity in National Pork to jettison the dormant Commerce Clause, but by seeking to confine it to state protectionism, they sought to apply the historical concerns that animated the Founders.
Of course, this raises the real possibility that the fears Justice Kavanaugh alludes to may come to pass; California’s law may become a blueprint that other states use to increase barriers to products “that offend[] their moral or policy preferences.” State efforts to restrict the sale of abortion pills within their borders may make that possibility imminent. But respect for the Constitution’s original meaning, including a healthy regard for state sovereignty and the moral intuitions that citizens pass into local law, demands that the courts find firmer footing if they are to invalidate duly enacted state law.
This piece originally appeared in The Federalist Society
