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SUPREME COURT OF THE UNITED STATES
_________________
No. 21–468
_________________
NATIONAL PORK PRODUCERS COUNCIL, et al.,
PETITIONERS
v. KAREN ROSS, in her official capacity as
SECRETARY OF THE CALI- FORNIA DEPARTMENT OF FOOD & AGRICULTURE,
et al.
on writ of certiorari to the united states
court of appeals for the ninth circuit
[May 11, 2023]
Justice Gorsuch announced the judgment of the
Court and delivered the opinion of the Court, except as to Parts
IV–B, IV–C, and IV–D.
What goods belong in our stores? Usually,
consumer demand and local laws supply some of the answer. Recently,
California adopted just such a law banning the in-state sale of
certain pork products derived from breeding pigs confined in stalls
so small they cannot lie down, stand up, or turn around. In
response, two groups of out-of-state pork producers filed this
lawsuit, arguing that the law unconstitutionally interferes with
their preferred way of doing business in violation of this
Court’s dormant Commerce Clause precedents. Both the district
court and court of appeals dismissed the producers’ complaint
for failing to state a claim.
We affirm. Companies that choose to sell
products in various States must normally comply with the laws of
those various States. Assuredly, under this Court’s dormant
Commerce Clause decisions, no State may use its laws to
discriminate purposefully against out-of-state economic interests.
But the pork producers do not suggest that California’s law
offends this principle. Instead, they invite us to fashion two new
and more aggressive constitutional restrictions on the ability of
States to regulate goods sold within their borders. We decline that
invitation. While the Constitution addresses many weighty issues,
the type of pork chops California merchants may sell is not on that
list.
I
Modern American grocery stores offer a
dizzying array of choice. Often, consumers may choose among eggs
that are large, medium, or small; eggs that are white, brown, or
some other color; eggs from cage-free chickens or ones raised
consistent with organic farming standards. When it comes to meat
and fish, the options are no less plentiful. Products may be
marketed as free range, wild caught, or graded by quality (prime,
choice, select, and beyond). The pork products at issue here, too,
sometimes come with “antibiotic-free” and
“crate-free” labels. USDA, Report to Congress:
Livestock Mandatory Reporting 18 (2018),
https://www.ams.usda.gov/sites/default/files/
media/LMR2018ReporttoCongress.pdf. Much of this product
differentiation reflects consumer demand, informed by individual
taste, health, or moral considerations.
Informed by similar concerns, States (and their
predecessors) have long enacted laws aimed at protecting animal
welfare. As far back as 1641, the Massachusetts Bay Colony
prohibited “Tirranny or Crueltie towards any bruite
Creature.” Body of Liberties §92, in A Bibliographical
Sketch of the Laws of the Massachusetts Colony 52–53 (1890).
Today, Massachusetts prohibits the sale of pork products from
breeding pigs (or their offspring) if the breeding pig has been
confined “in a manner that prevents [it] from lying down,
standing up, fully extending [its] limbs or turning around
freely.” Mass. Gen. Laws Ann., ch. 129, App.
§§1–3, 1–5 (Cum. Supp. 2023). Nor is that
State alone. Florida’s Constitution prohibits “any
person [from] confin[ing] a pig during
pregnancy . . . in such a way that she is prevented
from turning around freely.” Art. X, §21(a). Arizona,
Maine, Michigan, Oregon, and Rhode Island, too, have laws
regulating animal confinement practices within their borders. See
Ariz. Rev. Stat. Ann. §13–2910.07(A) (2018); Me. Rev.
Stat. Ann., Tit. 7, §§4020(1)–(2) (2018); Mich.
Comp. Laws §287.746(2) (West Cum. Supp. 2022); Ore. Rev. Stat.
§§600.150(1)–(2) (2021); R. I. Gen. Laws
§4–1.1–3 (Supp. 2022).
This case involves a challenge to a California
law known as Proposition 12. In November 2018 and with the support
of about 63% of participating voters, California adopted a ballot
initiative that revised the State’s existing standards for
the in-state sale of eggs and announced new standards for the
in-state sale of pork and veal products. App. to Pet. for Cert.
37a–46a. As relevant here, Proposition 12 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)
(West Cum. Supp. 2023). Subject to certain exceptions, the law
deems confinement “cruel” if it prevents a pig from
“lying down, standing up, fully extending [its] limbs, or
turning around freely.” §25991(e)(1)
. Since
Proposition 12’s adoption, the State has begun developing
“proposed regulations” that would permit compliance
“certification[s]” to be issued “by
non-governmental third parties, many used for myriad programs
(
e.g., ‘organic’) already.” Brief for
Intervenor Respondents 30, n. 8.
A spirited debate preceded the vote on
Proposition 12. Proponents observed that, in some farming
operations, pregnant pigs remain “[e]ncased” for 16
weeks in “fit-to-size” metal crates. M. Scully, A Brief
for the Pigs: The Case of
National Pork Producers Council v.
Ross, National Review, July 11, 2022,
https://www.nationalreview.com/2022/
07/a-brief-for-the-pigs-the-case-of-national-pork-producers-council-v-ross/.
These animals may receive their only opportunity for exercise when
they are moved to a separate barn to give birth and later returned
for another 16 weeks of pregnancy confinement—with the cycle
repeating until the pigs are slaughtered.
Ibid. Proponents
hoped that Proposition 12 would go a long way toward eliminating
pork sourced in this manner “from the California
marketplace.” A. Padilla, Cal. Secretary of State, California
General Election—Official Voter Information Guide 70 (Nov. 6,
2018) (Voter Guide), https://vig.cdn.sos.ca.gov/2018/general/pdf/
complete-vig.pdf. Proponents also suggested that the law would have
health benefits for consumers because “packing animals in
tiny, filthy cages increases the risk of food poisoning.”
Ibid.; see App. to Pet. for Cert. 201a–202a.
Opponents pressed their case in strong terms
too. They argued that existing farming practices did a better job
of protecting animal welfare (for example, by preventing pig-on-pig
aggression) and ensuring consumer health (by avoiding
contamination) than Proposition 12 would.
Id., at
185a–187a; see also Voter Guide 70–71. They also warned
voters that Proposition 12 would require some farmers and
processors to incur new costs.
Id., at 69. Ones that might
be “passed through” to California consumers.
Ibid.
Shortly after Proposition 12’s adoption,
two organizations—the National Pork Producers Council and the
American Farm Bureau Federation (collectively,
petitioners)—filed this lawsuit on behalf of their members
who raise and process pigs. App. to Pet. for Cert. 154a–155a.
Petitioners alleged that Proposition 12 violates the U. S.
Constitution by impermissibly burdening interstate commerce.
Id., at 230a–232a.
In support of that legal claim, petitioners
pleaded a number of facts. They acknowledged that, in response to
consumer demand and the laws of other States, 28% of their industry
has already converted to some form of group housing for pregnant
pigs.
Id., at 186a. But, petitioners cautioned, even some
farmers who already raise group-housed pigs will have to modify
their practices if they wish to comply with Proposition 12.
Id., at 208a–209a. Much of pork production today is
vertically integrated, too, with farmers selling pigs to large
processing firms that turn them into different “cuts of
meat” and distribute the “different parts
. . . all over to completely different end
users.”
Id., at 334a–335a. Revising this system
to segregate and trace Proposition 12-compliant pork, petitioners
alleged, will require certain processing firms to make substantial
new capital investments.
Id., at 205a–206a.
Ultimately, petitioners estimated that “compliance with
Proposition 12 will increase production costs” by
“9.2% . . . at the farm level.”
Id., at 214a. These compliance costs will fall on California
and out-of-state producers alike.
Ibid. But because
California imports almost all the pork it consumes, petitioners
emphasized, “the majority” of Proposition 12’s
compliance costs will be initially borne by out-of-state firms.
Ibid.
After considerable motions practice, the
district court held that petitioners’ complaint failed to
state a claim as a matter of law and dismissed the case. 456
F. Supp. 3d 1201 (SD Cal. 2020). With Judge Ikuta writing for
a unanimous panel, the Ninth Circuit affirmed. 6 F. 4th 1021
(2021). Following that ruling, petitioners sought certiorari and we
agreed to consider the complaint’s legal sufficiency for
ourselves. 596 U. S. ___ (2022).
II
The Constitution vests Congress with the power
to “regulate Commerce . . . among the several
States.” Art. I, §8, cl. 3. Everyone agrees that
Congress may seek to exercise this power to regulate the interstate
trade of pork, much as it has done with various other products.
Everyone agrees, too, that congressional enactments may preempt
conflicting state laws. See Art. VI, cl. 2. But everyone also
agrees that we have nothing like that here. Despite the persistent
efforts of certain pork producers, Congress has yet to adopt any
statute that might displace Proposition 12 or laws regulating pork
production in other States. See,
e.g., H. R. 272, 116th
Cong., 1st Sess., §2 (2019); H. R. 4879, 115th Cong., 2d
Sess., §2(a) (2018); H. R. 3599, 115th Cong., 1st Sess.,
§2(a) (2017); H. R. 687, 114th Cong., 1st Sess.,
§2(a) (2015).
That has led petitioners to resort to
litigation, pinning their hopes on what has come to be called the
dormant Commerce Clause. Reading between the
Constitution’s lines, petitioners observe, this Court has
held that the Commerce Clause not only vests Congress with the
power to regulate interstate trade; the Clause also
“contain[s] a further, negative command,” one
effectively forbidding the enforcement of “certain state
[economic regulations] even when Congress has failed to legislate
on the subject.”
Oklahoma Tax Comm’n v.
Jefferson Lines,
Inc.,
514 U.S.
175, 179 (1995).
This view of the Commerce Clause developed
gradually. In
Gibbons v.
Ogden, Chief Justice
Marshall recognized that the States’ constitutionally
reserved powers enable them to regulate commerce in their own
jurisdictions in ways sure to have “a remote and considerable
influence on commerce” in other States. 9 Wheat. 1, 203
(1824). By way of example, he cited “[i]nspection laws,
quarantine laws, [and] health laws of every description.”
Ibid. At the same time, however, Chief Justice Marshall saw
“great force in th[e] argument” that the Commerce
Clause might impliedly bar certain types of state economic
regulation.
Id., at 209. Decades later, in
Cooley v.
Board of Wardens of Port of Philadelphia ex rel. Soc. for
Relief of Distressed Pilots, this Court again recognized that
the power vested in Congress to regulate interstate commerce leaves
the States substantial leeway to adopt their own commercial codes.
12 How. 299, 317–321 (1852). But once more, the Court hinted
that the Constitution may come with some restrictions on what
“may be regulated by the States” even “in the
absence of all congressional legislation.”
Id., at
320.
Eventually, the Court cashed out these warnings,
holding that state laws offend the Commerce Clause when they seek
to “build up . . . domestic commerce”
through “burdens upon the industry and business of other
States,” regardless of whether Congress has spoken.
Guy v.
Baltimore,
100 U.S.
434, 443 (1880). At the same time, though, the Court reiterated
that, absent discrimination, “a State may exclude from its
territory, or prohibit the sale therein of any articles which, in
its judgment, fairly exercised, are prejudicial to” the
interests of its citizens.
Ibid.
Today, this antidiscrimination principle lies at
the “very core” of our dormant Commerce Clause
jurisprudence.
Camps Newfound/Owatonna,
Inc. v.
Town of Harrison,
520 U.S.
564, 581 (1997). In its “modern” cases, this Court
has said that the Commerce Clause prohibits the enforcement of
state laws “driven by . . . ‘economic
protectionism
—that is, regulatory measures designed to
benefit in-state economic interests by burdening out-of-state
competitors.’ ”
Department of Revenue of
Ky. v.
Davis,
553 U.S.
328, 337–338 (2008) (quoting
New Energy Co. of
Ind. v.
Limbach,
486 U.S.
269, 273–274 (1988)); see also
Tennessee Wine and
Spirits Retailers Assn. v.
Thomas, 588 U. S. ___,
___ (2019) (slip op., at 9) (observing that this Court’s
cases operate principally to “safeguard against state
protectionism”);
Northwest Airlines,
Inc. v.
County of Kent,
510 U.S.
355, 373, n. 18 (1994) (describing “a violation of
the dormant Commerce Clause” as “discrimination against
interstate commerce”).
Admittedly, some “Members of the Court
have authored vigorous and thoughtful critiques of this
interpretation” of the Commerce Clause.
Tennessee
Wine, 588 U. S., at ___ (slip op., at 7) (citing cases).
They have not necessarily quarreled with the antidiscrimination
principle. But they have suggested that it may be more
appropriately housed elsewhere in the Constitution. Perhaps in the
Import–Export Clause, which prohibits States from
“lay[ing] any Imposts or Duties on Imports or Exports”
without permission from Congress. Art. I, §10, cl. 2; see
Camps Newfound/Owatonna, 520 U. S., at 621–637
(Thomas, J., dissenting). Perhaps in the Privileges and Immunities
Clause, which entitles “[t]he Citizens of each State”
to “all Privileges and Immunities of Citizens in the several
States.” Art. IV, §2; see
Tyler Pipe
Industries,
Inc. v.
Washington State Dept. of
Revenue,
483 U.S.
232, 265 (1987) (Scalia, J., concurring in part and dissenting
in part). Or perhaps the principle inheres in the very structure of
the Constitution, which “was framed upon the theory that the
peoples of the several [S]tates must sink or swim together.”
American Trucking Assns.,
Inc. v.
Michigan Pub.
Serv. Comm’n,
545 U.S.
429, 433 (2005) (internal quotation marks omitted).
Whatever one thinks about these critiques, we
have no need to engage with any of them to resolve this case. Even
under our received dormant Commerce Clause case law, petitioners
begin in a tough spot. They do not allege that California’s
law seeks to advantage in-state firms or disadvantage out-of-state
rivals. In fact, petitioners
disavow any
discrimination-based claim, conceding that Proposition 12 imposes
the same burdens on in-state pork producers that it imposes on
out-of-state ones. As petitioners put it, “the dormant
Commerce Clause . . . bar on protectionist state
statutes that discriminate against interstate
commerce . . . is not in issue here.” Brief
for Petitioners 2, n. 2.
III
Having conceded that California’s law
does not implicate the antidiscrimination principle at the core of
this Court’s dormant Commerce Clause cases, petitioners are
left to pursue two more ambitious theories. In the first,
petitioners invoke what they call “extraterritoriality
doctrine.”
Id., at 19. They contend that our dormant
Commerce Clause cases suggest an additional and “almost
per se” rule forbidding enforcement of state laws that
have the “practical effect of controlling commerce outside
the State,” even when those laws do not purposely
discriminate against out-of-state economic interests.
Ibid.
Petitioners further insist that Proposition 12 offends this
“almost
per se” rule because the law will
impose substantial new costs on out-of-state pork producers who
wish to sell their products in California.
A
This argument falters out of the gate. Put
aside what problems may attend the minor (factual) premise of this
argument. Focus just on the major (legal) premise. Petitioners say
the “almost
per se” rule they propose
follows ineluctably from three cases—
Healy v.
Beer
Institute,
491 U.S.
324 (1989);
Brown-Forman Distillers Corp. v.
New York
State Liquor Authority,
476 U.S.
573 (1986); and
Baldwin v.
G. A. F. Seelig,
Inc.,
294 U.S.
511 (1935). A close look at those cases, however, reveals
nothing like the rule petitioners posit. Instead, each typifies the
familiar concern with preventing purposeful discrimination against
out-of-state economic interests.
Start with
Baldwin. There, this Court
refused to enforce New York laws that barred out-of-state dairy
farmers from selling their milk in the State “unless the
price paid to” them matched the minimum price New York law
guaranteed in-state producers.
Id., at 519. In that way, the
challenged laws deliberately robbed out-of-state dairy farmers of
the opportunity to charge lower prices in New York thanks to
whatever “natural competitive advantage” they might
have enjoyed over in-state dairy farmers—for example, lower
cost structures, more productive farming practices, or
“lusher pasturage.” D. Regan, The Supreme Court and
State Protectionism: Making Sense of the Dormant Commerce Clause,
84 Mich. L. Rev. 1091, 1248 (1986). The problem with New
York’s laws was thus a simple one: They “plainly
discriminate[d]” against out-of-staters by “erecting an
economic barrier protecting a major local industry against
competition from without the State.”
Dean Milk Co. v.
Madison,
340 U.S.
349, 354 (1951) (discussing
Baldwin). Really, the laws
operated like “a tariff or customs duty.”
West Lynn
Creamery,
Inc. v.
Healy,
512
U.S. 186, 194 (1994); see
Baldwin, 294 U. S., at
523 (condemning the challenged laws for seeking to
“protec[t]” New York dairy farmers “against
competition from without”).
Brown-Forman and
Healy differed
from
Baldwin only in that they involved price-affirmation,
rather than price-fixing, statutes. In
Brown-Forman, New
York required liquor distillers to affirm (on a monthly basis) that
their in-state prices were no higher than their out-of-state
prices. 476 U. S., at 576. Once more, the goal was plain: New
York sought to force out-of-state distillers to
“surrender” whatever cost advantages they enjoyed
against their in-state rivals.
Id., at 580. Once more, the
law amounted to “simple economic protectionism.”
Ibid. (internal quotation marks omitted).
In
Healy, a Connecticut law required
out-of-state beer merchants to affirm that their in-state prices
were no higher than those they charged in neighboring States. 491
U. S., at 328–330. Here, too, protectionism took center
stage. As the Court later noted, “[t]he essential vice in
laws” like Connecticut’s is that they
“hoard” commerce “for the benefit of ”
in-state merchants and discourage consumers from crossing state
lines to make their purchases from nearby out-of-state vendors.
C & A Carbone,
Inc. v.
Clarkstown,
511 U.S.
383, 391–392 (1994). Nor did the law in
Healy even
try to cloak its discriminatory purpose: “By its plain terms,
the Connecticut affirmation statute applie[d] solely to
interstate” firms, and in that way “clearly
discriminate[d] against interstate commerce.” 491 U. S.,
at 340–341. The Court also worried that, if the Connecticut
law stood, “each of the border States” could
“enac[t] statutes essentially identical to
Connecticut’s” in retaliation—a result often
associated with avowedly protectionist economic policies.
Id., at 339–340
.
B
Petitioners insist that our reading of these
cases misses the forest for the trees. On their account,
Baldwin,
Brown-Forman, and
Healy didn’t
just find an impermissible discriminatory purpose in the challenged
laws; they also suggested an “almost
per
se” rule against state laws with
“extraterritorial effects.” Brief for Petitioners 19,
23. In
Healy, petitioners stress, the Court included
language criticizing New York’s laws for having the
“ ‘practical effect’ ” of
“control[ling] commerce ‘occurring wholly outside the
boundaries of [the] State.’ ” Brief for
Petitioners 21, 25 (quoting 491 U. S., at 336). In
Brown-Forman, petitioners observe, the Court suggested that
whether a state law “ ‘is addressed only to
[in-state] sales is irrelevant if the “practical
effect” of the law is to control’ ”
out-of-state prices. Brief for Petitioners 21 (quoting 476
U. S., at 583). Petitioners point to similar language in
Baldwin as well. Brief for Petitioners 37 (quoting 294
U. S., at 523–524).
In our view, however, petitioners read too much
into too little. “[T]he language of an opinion is not always
to be parsed as though we were dealing with language of a
statute.”
Reiter v.
Sonotone Corp.,
442 U.S.
330, 341 (1979). Instead, we emphasize, our opinions dispose of
discrete cases and controversies and they must be read with a
careful eye to context. See
Cohens v.
Virginia, 6
Wheat. 264, 399–400 (1821) (Marshall, C. J.). And when
it comes to
Baldwin,
Brown-Forman, and
Healy,
the language petitioners highlight appeared in a particular context
and did particular work. Throughout, the Court explained that the
challenged statutes had a
specific impermissible
“extraterritorial effect”—they deliberately
“prevent[ed out-of-state firms] from undertaking competitive
pricing” or “deprive[d] businesses and consumers in
other States of ‘whatever competitive advantages they may
possess.’ ”
Healy, 491 U. S., at
338–339 (quoting
Brown-Forman, 476 U. S., at
580).
In recognizing this much, we say nothing new.
This Court has already described “[t]he rule that was applied
in
Baldwin and
Healy” as addressing
“price control or price affirmation statutes” that tied
“the price of . . . in-state products to
out-of-state prices.”
Pharmaceutical Research and Mfrs. of
America v.
Walsh,
538 U.S.
644, 669 (2003) (internal quotation marks omitted). Many lower
courts have read these decisions in exactly the same way. See,
e.g., 6 F. 4th, at 1028–1029;
Association for
Accessible Medicines v.
Frosh, 887 F.3d 664, 669 (CA4
2018);
Energy and Environment Legal Inst. v.
Epel,
793 F.3d 1169, 1174 (CA10 2015);
American Beverage Assn. v.
Snyder, 735 F.3d 362, 373 (CA6 2013).
Consider, too, the strange places
petitioners’ alternative interpretation could lead. In our
interconnected national marketplace, many (maybe most) state laws
have the “practical effect of controlling”
extraterritorial behavior. State income tax laws lead some
individuals and companies to relocate to other jurisdictions. See,
e.g.,
Banner v.
United States,
428 F.3d 303, 310 (CADC 2005) (
per curiam).
Environmental laws often prove decisive when businesses choose
where to manufacture their goods. See
American Beverage
Assn., 735 F. 3d, at 379 (Sutton, J., concurring). Add to
the extraterritorial-effects list all manner of “libel laws,
securities requirements, charitable registration requirements,
franchise laws, tort laws,” and plenty else besides. J.
Goldsmith & A. Sykes, The Internet and the Dormant Commerce
Clause, 110 Yale L. J. 785, 804 (2001). Nor, as we have seen,
is this a recent development. Since 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.
Gibbons, 9 Wheat., at 203; see also
Cooley, 12 How., at 317–321. Petitioners’
“almost
per se” rule against laws that have the
“practical effect” of “controlling”
extraterritorial commerce would cast a shadow over laws long
understood to represent valid exercises of the States’
constitutionally reserved powers. It would provide neither courts
nor litigants with meaningful guidance in how to resolve disputes
over them. Instead, it would invite endless litigation and
inconsistent results. Can anyone really suppose
Baldwin,
Brown-Forman, and
Healy meant to do so much?
In rejecting petitioners’ “almost
per se” theory we do not mean to trivialize the role
territory and sovereign boundaries play in our federal system.
Certainly, the Constitution takes great care to provide rules for
fixing and changing state borders. Art. IV, §3, cl. 1.
Doubtless, too, courts must sometimes referee disputes about where
one State’s authority ends and another’s
begins—both inside and outside the commercial context. In
carrying out that task, this Court has recognized the usual
“legislative power of a State to act upon persons and
property within the limits of its own territory,”
Hoyt
v.
Sprague,
103 U.S.
613, 630 (1881), a feature of our constitutional order that
allows “different communities” to live “with
different local standards,”
Sable Communications of
Cal.,
Inc. v.
FCC,
492 U.S.
115, 126 (1989). But, by way of example, no one should think
that one State may adopt a law exempting securities held by the
residents of a second State from taxation in that second State.
Bonaparte v.
Tax Court,
104 U.S.
592, 592–594 (1882). Nor, we have held, should anyone
think one State may prosecute the citizen of another State for acts
committed “outside [the first State’s]
jurisdiction” that are not “intended to produce [or
that do not] produc[e] detrimental effects within it.”
Strassheim v.
Daily,
221 U.S.
280, 285 (1911).
To resolve disputes about the reach of one
State’s power, this Court has long consulted original and
historical understandings of the Constitution’s structure and
the principles of “sovereignty and comity” it embraces.
BMW of North America,
Inc. v.
Gore,
517 U.S.
559, 572 (1996). This Court has invoked as well a number of the
Constitution’s express provisions—including “the
Due Process Clause and the Full Faith and Credit Clause.”
Phillips Petroleum Co. v.
Shutts,
472 U.S.
797, 818 (1985). The antidiscrimination principle found in our
dormant Commerce Clause cases may well represent one more effort to
mediate competing claims of sovereign authority under our
horizontal separation of powers. But none of this means, as
petitioners suppose, that
any question about the ability of
a State to project its power extraterritorially must yield to an
“almost
per se” rule under the dormant Commerce
Clause. This Court has never before claimed so much “ground
for judicial supremacy under the banner of the dormant Commerce
Clause.”
United Haulers Assn.,
Inc. v.
Oneida-Herkimer Solid Waste Management Authority,
550 U.S.
330, 347 (2007). We see no reason to change course
now.[
1]
IV
Failing in their first theory, petitioners
retreat to a second they associate with
Pike v.
Bruce
Church,
Inc.,
397 U.S.
137 (1970). Under
Pike, they say, a court must at least
assess “ ‘the burden imposed on interstate
commerce’ ” by a state law and prevent its
enforcement if the law’s burdens are
“ ‘clearly excessive in relation to the putative
local benefits.’ ” Brief for Petitioners 44.
Petitioners then rattle off a litany of reasons why they believe
the benefits Proposition 12 secures for Californians do not
outweigh the costs it imposes on out-of-state economic interests.
We see problems with this theory too.
A
In the first place, petitioners overstate the
extent to which
Pike and its progeny depart from the
antidiscrimination rule that lies at the core of our dormant
Commerce Clause jurisprudence. As this Court has previously
explained, “no clear line” separates the
Pike
line of cases from our core antidiscrimination precedents.
General Motors Corp. v.
Tracy,
519 U.S.
278, 298, n. 12 (1997). While many of our dormant Commerce
Clause cases have asked whether a law exhibits
“ ‘facial discrimination,’ ”
“several cases that have purported to apply [
Pike,]
including
Pike itself,” have “turned in whole or
in part on the discriminatory character of the challenged state
regulations.”
Ibid. In other words, if some of our
cases focus on whether a state law discriminates on its face, the
Pike line serves as an important reminder that a law’s
practical effects may also disclose the presence of a
discriminatory purpose.
Pike itself illustrates the point. That
case concerned an Arizona order requiring cantaloupes grown in
state to be processed and packed in state. 397 U. S., at
138–140. The Court held that Arizona’s order violated
the dormant Commerce Clause.
Id., at 146. Even if that order
could be fairly characterized as facially neutral, the Court
stressed that it “requir[ed] business operations to be
performed in [state] that could more efficiently be performed
elsewhere.”
Id., at 145. The “practical
effect[s]” of the order in operation thus revealed a
discriminatory purpose—an effort to insulate in-state
processing and packaging businesses from out-of-state competition.
Id., at 140, 145
.
Other cases in the
Pike line underscore
the same message. In
Minnesota v.
Clover Leaf Creamery
Co., the Court found no impermissible burden on interstate
commerce because, looking to the law’s effects, “there
[was] no reason to suspect that the gainers” would be
in-state firms or that “the losers [would be] out-of-state
firms.”
449 U.S.
456, 473 (1981); see also
id., at 474–477, and n.
2 (Powell, J., concurring in part and dissenting in part) (asking
whether the “actual purpose,” if not the
“ ‘avowed purpose,’ ” of the law
was discrimination). Similarly, in
Exxon Corp. v.
Governor of Maryland, the Court keyed to the fact that the
effect of the challenged law was only to shift business from one
set of out-of-state suppliers to another.
437
U.S. 117, 127 (1978). And in
United Haulers, a plurality
upheld the challenged law because it could not “detect”
any discrimination in favor of in-state businesses or against
out-of-state competitors. 550 U. S., at 346
. In each of
these cases and many more, the presence or absence of
discrimination in practice proved decisive.
Once again, we say nothing new here. Some time
ago,
Tracy identified the congruity between our core dormant
Commerce Clause precedents and the
Pike line. 519
U. S., at 298, n. 12. Many lower courts have done the
same. See,
e.g.,
Rosenblatt v.
Santa Monica,
940 F.3d 439, 452 (CA9 2019);
Park Pet Shop,
Inc. v.
Chicago, 872 F.3d 495, 501 (CA7 2017);
Amanda Acquisition
Corp. v.
Universal Foods Corp., 877 F.2d 496, 505 (CA7
1989). So have many scholars. See,
e.g., R. Fallon, The
Dynamic Constitution 311 (2d ed. 2013) (observing that
Pike
serves to “ ‘smoke out’ a hidden”
protectionism); B. Friedman & D. Deacon, A Course Unbroken: The
Constitutional Legitimacy of the Dormant Commerce Clause, 97 Va. L.
Rev. 1877, 1927 (2011); Regan, 84 Mich. L. Rev., at 1286.
Nor does any of this help petitioners in this
case. They not only disavow any claim that Proposition 12
discriminates on its face. They nowhere suggest that an examination
of Proposition 12’s practical effects in operation would
disclose purposeful discrimination against out-of-state businesses.
While this Court has left the “courtroom door open” to
challenges premised on “even nondiscriminatory
burdens,”
Davis, 553 U. S., at 353, and while
“a small number of our cases have invalidated state
laws . . . that appear to have been genuinely
nondiscriminatory,”
Tracy, 519 U. S., at 298,
n. 12,[
2]
petitioners’ claim falls well outside
Pike’s
heartland. That is not an auspicious start.
B
Matters do not improve from there. While
Pike has traditionally served as another way to test for
purposeful discrimination against out-of-state economic interests,
and while some of our cases associated with that line have
expressed special concern with certain state regulation of the
instrumentalities of interstate transportation, see n. 2,
supra, petitioners would have us retool
Pike for a
much more ambitious project. They urge us to read
Pike as
authorizing judges to strike down duly enacted state laws
regulating the in-state sale of ordinary consumer goods (like pork)
based on nothing more than their own assessment of the relevant
law’s “costs” and “benefits.”
That we can hardly do. Whatever other judicial
authorities the Commerce Clause may imply, that kind of
freewheeling power is not among them. Petitioners point to nothing
in the Constitution’s text or history that supports such a
project. And our cases have expressly cautioned against judges
using the dormant Commerce Clause as “a roving license for
federal courts to decide what activities are appropriate for state
and local government to undertake.”
United Haulers,
550 U. S., at 343. While “[t]here was a time when this
Court presumed to make such binding judgments for society, under
the guise of interpreting the Due Process Clause,” we have
long refused pleas like petitioners’ “to reclaim that
ground” in the name of the dormant Commerce Clause.
Id., at 347.
Not only is the task petitioners propose one the
Commerce Clause does not authorize judges to undertake. This Court
has also recognized that judges often are “not
institutionally suited to draw reliable conclusions of the kind
that would be necessary . . . to satisfy [the]
Pike” test as petitioners conceive it.
Davis,
553 U. S., at 353.
Our case illustrates the problem. On the
“cost” side of the ledger, petitioners allege they will
face increased production expenses because of Proposition 12. On
the “benefits” side, petitioners acknowledge that
Californians voted for Proposition 12 to vindicate a variety of
interests, many noneconomic. See App. to Pet. for Cert. 192a
(alleging in their complaint that “Proposition 12’s
requirements were driven by [a] conception of what qualifies as
‛cruel’ animal housing” and by the State’s
concern for the “ ‘health and safety of California
consumers’ ”). How is a court supposed to compare
or weigh economic costs (to some) against noneconomic benefits (to
others)? No neutral legal rule guides the way. The competing goods
before us are insusceptible to resolution by reference to any
juridical principle. Really, the task is like being asked to decide
“whether a particular line is longer than a particular rock
is heavy.”
Bendix Autolite Corp. v.
Midwesco
Enterprises,
Inc.,
486 U.S.
888, 897 (1988) (Scalia, J., concurring in judgment).
Faced with this problem, petitioners reply that
we should heavily discount the benefits of Proposition 12. They say
that California has little interest in protecting the welfare of
animals raised elsewhere and the law’s health benefits are
overblown. But along the way, petitioners offer notable concessions
too. They acknowledge that States may sometimes ban the in-state
sale of products they deem unethical or immoral without regard to
where those products are made (for example, goods manufactured with
child labor). See Tr. of Oral Arg. 51 (“[A] state is
perfectly entitled to enforce its morals in state”); see also
Western Union Telegraph Co. v.
James,
162 U.S.
650, 653 (1896) (holding that States may enact laws to
“promote . . . public morals”). And, at
least arguably, Proposition 12 works in just this way—banning
from the State all whole pork products derived from practices its
voters consider “cruel.” Petitioners also concede that
States may often adopt laws addressing even “imperfectly
understood” health risks associated with goods sold within
their borders. Reply Brief 13. And, again, no one disputes that
some who voted for Proposition 12 may have done so with just that
sort of goal in mind. See,
e.g., USDA Proposed Rule To Amend
Organic Livestock and Poultry Production Requirements, 87 Fed. Reg.
48565 (2022) (affording animals more space “may result in
healthier livestock products for human consumption”).
So even accepting everything petitioners say, we
remain left with a task no court is equipped to undertake. On the
one hand, some out-of-state producers who choose to comply with
Proposition 12 may incur new costs. On the other hand, the law
serves moral and health interests of some (disputable) magnitude
for in-state residents. Some might reasonably find one set of
concerns more compelling. Others might fairly disagree. How should
we settle that dispute? The competing goods are incommensurable.
Your guess is as good as ours.
More accurately, your guess is
better
than ours. In a functioning democracy, policy choices like these
usually belong to the people and their elected representatives.
They are entitled to weigh the relevant “political and
economic” costs and benefits for themselves,
Moorman Mfg.
Co. v.
Bair,
437 U.S.
267, 279 (1978), and “try novel social and economic
experiments” if they wish,
New State Ice Co. v.
Liebmann,
285 U.S.
262, 311 (1932) (Brandeis, J., dissenting). Judges cannot
displace the cost-benefit analyses embodied in democratically
adopted legislation guided by nothing more than their own faith in
“Mr. Herbert Spencer’s Social Statics,”
Lochner v.
New York,
198 U.S.
45, 75 (1905) (Holmes, J., dissenting)—or, for that
matter, Mr. Wilson Pond’s Pork Production Systems, see W.
Pond, J. Maner, & D. Harris, Pork Production Systems: Efficient
Use of Swine and Feed Resources (1991).
If, as petitioners insist, California’s
law really does threaten a “massive” disruption of the
pork industry, see Brief for Petitioners 2, 4, 19—if pig
husbandry really does “ ‘imperatively
demand’ ” a single uniform nationwide rule,
id., at 27—they are free to petition Congress to
intervene. Under the (wakeful) Commerce Clause, that body enjoys
the power to adopt federal legislation that may preempt conflicting
state laws. That body is better equipped than this Court to
identify and assess all the pertinent economic and political
interests at play across the country. And that body is certainly
better positioned to claim democratic support for any policy choice
it may make. But so far, Congress has declined the producers’
sustained entreaties for new legislation. See Part I,
supra
(citing failed efforts). And with that history in mind, it is hard
not to wonder whether petitioners have ventured here only because
winning a majority of a handful of judges may seem easier than
marshaling a majority of elected representatives across the
street.
C
Even as petitioners conceive
Pike, they
face a problem. As they read it,
Pike requires a plaintiff
to plead facts plausibly showing that a challenged law imposes
“substantial burdens” on interstate commerce
before a court may assess the law’s competing benefits
or weigh the two sides against each other. Brief for Petitioners
44. And, tellingly, the complaint before us fails to clear even
that bar.
To appreciate petitioners’ problem,
compare our case to
Exxon. That case involved a Maryland law
prohibiting petroleum producers from operating retail gas stations
in the State. 437 U. S., at 119–121, and n. 1.
Because Maryland had no in-state petroleum producers, Exxon argued,
the law’s “divestiture requirements” fell
“solely on interstate companies” and threatened to
force some to “withdraw entirely from the Maryland
market” or incur new costs to serve that market.
Id.,
at 125–127. All this, the company said, amounted to a
violation of the dormant Commerce Clause.
This Court found the allegations in
Exxon’s complaint insufficient as a matter of law to
demonstrate a substantial burden on interstate commerce. Without
question, Maryland’s law favored one business structure
(independent gas station retailers) over another (vertically
integrated production and retail firms).
Ibid. The law also
promised to increase retail gas prices for Maryland consumers,
allowing some to question its “wisdom.”
Id., at
124, 128. But, the Court found, Exxon failed to plead facts
leading, “either logically or as a practical matter, to [the]
conclusion that the State [was] discriminating against interstate
commerce.”
Id., at 125. The company failed to do so
because, on its face, Maryland’s law welcomed competition
from interstate retail gas station chains that did not produce
petroleum.
Id., at 125–126. And as far as anyone could
tell, the law’s “practical effect” wasn’t
to protect in-state producers; it was to shift market share from
one set of out-of-state firms (vertically integrated businesses) to
another (retail gas station firms).
Id., at 125, 127. This
Court squarely rejected the view that this predicted
“ ‘change [in] the market
structure’ ” would “impermissibly burde[n]
interstate commerce.”
Id., at 127. If the dormant
Commerce Clause protects the “interstate
market . . . from prohibitive or burdensome
regulations,” the Court held, it does not protect
“particular . . . firms” or “particular
structure[s] or methods of operation.”
Id., at
127–128.
If Maryland’s law did not impose a
sufficient burden on interstate commerce to warrant further
scrutiny, the same must be said for Proposition 12. In
Exxon, vertically integrated businesses faced a choice: They
could divest their production capacities or withdraw from the local
retail market. Here, farmers and vertically integrated processors
have at least as much choice: They may provide all their pigs the
space the law requires; they may segregate their operations to
ensure pork products entering California meet its standards; or
they may withdraw from that State’s market. In
Exxon,
the law posed a choice
only for out-of-state firms. Here,
the law presents a choice primarily—but not
exclusively—for out-of-state businesses; California does have
some pork producers affected by Proposition 12. See App. to Pet.
for Cert. 205a. In
Exxon, as far as anyone could tell, the
law threatened only to shift market share from one set of
out-of-state firms to another. Here, the pleadings allow for the
same possibility—that California market share previously
enjoyed by one group of profit-seeking, out-of-state businesses
(farmers who stringently confine pigs and processors who decline to
segregate their products) will be replaced by another (those who
raise and trace Proposition 12-compliant pork). In both cases, some
may question the “wisdom” of a law that threatens to
disrupt the existing practices of some industry participants and
may lead to higher consumer prices. 437 U. S., at 128. But the
dormant Commerce Clause does not protect a “particular
structure or metho[d] of operation.”
Id., at 127. That
goes for pigs no less than gas stations.
Think of it another way. Petitioners must plead
facts “plausibly” suggesting a substantial harm to
interstate commerce; facts that render that outcome a
“speculative” possibility are not enough.
Bell
Atlantic Corp. v.
Twombly,
550 U.S.
544, 555, 557 (2007). In an effort to meet this standard,
petitioners allege facts suggesting that certain out-of-state
farmers and processing firms will find it difficult to comply with
Proposition 12 and may choose not to do so. See App. to Pet. for
Cert. 198a, 208a, 313a. But the complaint also acknowledges that
many producers have already converted to some form of group
housing, even if they have not all yet met Proposition 12’s
standards.
Id., at 186a. From these facts, the complaint
plausibly alleges that
some out-of-state firms may face
difficulty complying (or may choose not to comply) with Proposition
12. But from all anyone can tell,
other out-of-state
competitors seeking to enhance their own profits may choose to
modify their existing operations or create new ones to fill the
void.[
3]
Of course, as the complaint alleges, a shift
from one set of production methods to another promises some costs.
Id., at 214a. But the complaint concedes that complying
producers will be able to “pas[s] along” at least
“some” of their increased costs to consumers.
Id., at 178a. And no one thinks that costs ultimately borne
by in-state consumers thanks to a law they adopted counts as a
cognizable harm under our dormant Commerce Clause precedents. See
United Haulers, 550 U. S., at 345 (holding that the
dormant Commerce Clause is not offended by higher prices
“likely to fall upon the very people who voted for the
[challenged] la[w]”). Nor does the complaint allege facts
plausibly suggesting that out-of-state consumers indifferent to
pork production methods will have to pick up the tab (let alone
explain how petitioners might sue to vindicate their interests).
Instead, at least one declaration incorporated by reference into
the complaint avers that some out-of-state consumers will
“not value these changes and will not pay an increased
price.” App. to Pet. for Cert. 335a; see also Brief for
Agricultural and Resource Economics Professors as
Amici
Curiae 15, 23 (suggesting negligible effect on out-of-state
prices for consumers not interested in Proposition 12-compliant
pork). Further experience may yield further facts. But the facts
pleaded in this complaint merely allege harm to some
producers’ favored “methods of operation.”
Exxon, 437 U. S., at 127. A substantial harm to
interstate commerce remains nothing more than a speculative
possibility.
Ibid.
D
The Chief Justice’s concurrence in part
and dissent in part (call it “the lead dissent”) offers
a contrasting view. Correctly, it begins by rejecting
petitioners’ “almost
per se” rule
against laws with extraterritorial effects.
Post, at 1. And
correctly, it disapproves reading
Pike to endorse a
“freewheeling judicial weighing of benefits and
burdens.”
Post, at 2. But for all it gets right, in
other respects it goes astray. In places, the lead dissent seems to
advance a reading 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’ ” “har[m] to
the interstate market” for that good.
Post, at
4–9. It is an approach that would go much further than our
precedents permit. So much further, in fact, that it isn’t
clear what separates the lead dissent’s approach from others
it purports to reject.
Consider an example. Today, many States prohibit
the sale of horsemeat for human consumption. See
Cavel
Int’l, Inc. v.
Madigan, 500 F.3d 551,
552–555 (CA7 2007). But these prohibitions “har[m] the
interstate market” for horsemeat by denying outlets for its
sale. Not only that, they distort the market for animal products
more generally by pressuring horsemeat manufacturers to transition
to different products, ones they can lawfully sell nationwide.
Under the lead dissent’s test, all it would take is one
complaint from an unhappy out-of-state producer
and—presto—the Constitution would protect the sale of
horsemeat. Just find a judge anywhere in the country who considers
the burden to producers “excessive.”
Post, at 9.
The same would go for all manner of consumer products currently
banned by some States but not by others—goods ranging from
fireworks, see,
e.g., Mass. Gen. Laws Ann., ch. 148,
§39 (2020)
, to single-use plastic grocery bags, see,
e.g., Me. Rev. Stat. Ann., Tit. 38, §§1611(2)(A),
(4) (2022). Rather than respecting federalism, a rule like that
would require any consumer good available for sale in one State to
be made available in every State. In the process, it would
essentially replicate under
Pike’s banner
petitioners’ “almost
per se” rule against
state laws with extraterritorial effects.
Seeking a way around that problem, the lead
dissent stumbles into another. It suggests that the burdens of
Proposition 12 are particularly “substantial” because
California’s law “carr[ies] implications for producers
as far flung as Indiana and North Carolina.”
Post, at
7–10. Why is that so? Justice Kavanaugh’s solo
concurrence in part and dissent in part says the quiet part aloud:
California’s market is so lucrative that almost any in-state
measure will influence how out-of-state profit-maximizing firms
choose to operate.
Post, at 4–5. But if that makes all
the difference, it means voters in States with smaller markets are
constitutionally entitled to greater authority to regulate in-state
sales than voters in States with larger markets. So much for the
Constitution’s “fundamental principle of
equal
sovereignty among the States.”
Shelby County v.
Holder,
570 U.S.
529, 544 (2013) (internal quotation marks omitted).
The most striking feature of both dissents,
however, may be another one. They suggest that, in assessing a
state law’s burdens under
Pike, courts should take
into account not just economic harms but also all manner of
“derivative harms” to out-of-state interests.
Post, at 5–6 (opinion of Roberts, C. J.). These
include social costs that are “difficult to quantify”
such as (in this case) costs to the “national pig
population,” “animal husbandry” traditions, and
(again) “industry practice.”
Post, at 6–9;
see also
post, at 3–5 (opinion of Kavanaugh, J.). But
not even petitioners read
Pike so boldly. While petitioners
argue that Proposition 12 does not benefit pigs (as California has
asserted), they have not asked this Court (or any court) to treat
putative harms to out-of-state animal welfare or other noneconomic
interests as freestanding harms cognizable under the dormant
Commerce Clause. Nor could they have proceeded otherwise. Our
decisions have authorized claims alleging “burdens on
commerce.”
Davis, 553 U. S., at 353. They do not
provide judges “a roving license” to reassess the
wisdom of state legislation in light of any conceivable
out-of-state interest, economic or otherwise.
United
Haulers, 550 U. S., at 343.[
4]
V
Before the Constitution’s passage, Rhode
Island imposed special taxes on imported “
New-England
Rum”; Connecticut levied duties on goods “brought into
th[e] State, by Land or Water, from any of the United States of
America”; and Virginia taxed “vessels coming
within th[e S]tate from any of the United States.” An Act
Laying Certain Duties of Excise Upon Certain Articles, Feb. 24,
1783 R. I. Acts and Resolves 45; An Act for Levying and Collecting
a Duty on Certain Articles of Goods, Wares and Merchandize Imported
into this State, by Land or Water, 1784 Conn. Acts and Laws 271; An
Act to Amend the Act for Ascertaining Certain Taxes and Duties, and
for Establishing a Permanent Revenue (May 6, 1782), in 11 Statues
at Large, Laws of Virginia 70 (W. Hening ed. 1823).
Whether moved by this experience or merely
worried that more States might join the bandwagon, the Framers
equipped Congress with considerable power to regulate interstate
commerce and preempt contrary state laws. See U. S. Const.,
Art. I, §8, cl. 3; Art. IV, §2; see also Regan,
84 Mich. L. Rev., at 1114, n. 55; A. Abel, The Commerce
Clause in the Constitutional Convention and in Contemporary
Comment, 25 Minn. L. Rev. 432, 448–449 (1941). In the
years since, this Court has inferred an additional judicially
enforceable rule against certain, especially discriminatory, state
laws adopted even against the backdrop of congressional silence.
But “ ‘extreme caution’ ” is
warranted before a court deploys this implied authority.
Tracy, 519 U. S., at 310 (quoting
Northwest
Airlines, Inc. v.
Minnesota,
322
U.S. 292, 302 (1944) (Black, J., concurring)). Preventing state
officials from enforcing a democratically adopted state law in the
name of the dormant Commerce Clause is a matter of “extreme
delicacy,” something courts should do only “where the
infraction is clear.”
Conway v.
Taylor’s
Executor, 1 Black 603, 634 (1862).
Petitioners would have us cast aside caution for
boldness. They have failed—repeatedly—to persuade
Congress to use its express Commerce Clause authority to adopt a
uniform rule for pork production. And they disavow any reliance on
this Court’s core dormant Commerce Clause teachings focused
on discriminatory state legislation. Instead, petitioners invite us
to endorse two new theories of implied judicial power. They would
have us recognize an “almost
per se” rule
against the enforcement of state laws that have
“extraterritorial effects”—even though this Court
has recognized since
Gibbons that virtually all state laws
create ripple effects beyond their borders. Alternatively, they
would have us prevent a State from regulating the sale of an
ordinary consumer good within its own borders on nondiscriminatory
terms—even though the
Pike line of cases they invoke
has never before yielded such a result. Like the courts that faced
this case before us, we decline both of petitioners’
incautious invitations.
The judgment of the Ninth Circuit is
Affirmed.