# NPPC v. Ross/Opinion of Justice Kavanaugh

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 CALIFORNIA 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 Kavanaugh, concurring in part and dissenting in part.
In today’s fractured decision, six Justices of this Court affirmatively retain the longstanding Pike balancing test for analyzing dormant Commerce Clause challenges to state economic regulations. Ante, at 1 (Sotomayor, J., joined by Kagan, J., concurring in part); ante, at 2–3 (Roberts, C. J., joined by Alito, Kavanaugh, and Jackson, JJ., concurring in part and dissenting in part); see Pike v. Bruce Church, Inc., 397 U. S. 137 (1970). Although Parts IV–B and IV–D of Justice Gorsuch’s opinion would essentially overrule the Pike balancing test, those subsections are not controlling precedent, as I understand it.
But Part IV–C of Justice Gorsuch’s opinion is controlling precedent for purposes of the Court’s judgment as to the plaintiffs’ Pike claim. There, a four-Justice plurality of the Court applies Pike and rejects the plaintiffs’ dormant Commerce Clause challenge under Pike. The plurality reasons that the plaintiffs’ complaint did not sufficiently allege that the California law at issue here imposed a substantial burden on interstate commerce ​under Pike. I respectfully disagree with that conclusion for the reasons well stated in The Chief Justice’s separate opinion.
I add this opinion to point out that state economic regulations like California’s Proposition 12 may raise questions not only under the Commerce Clause, but also under the Import-Export Clause, the Privileges and Immunities Clause, and the Full Faith and Credit Clause.
I
In the 1780s, the Framers in Philadelphia and the people of the United States discarded the Articles of Confederation and adopted a new Constitution. They did so in order to, among other things, create a national economic market and overcome state restrictions on free trade—and thereby promote the general welfare. By the summer of 1787, when the delegates met in Philadelphia, state interference with interstate commerce was cutting off the lifeblood of the Nation. See Tennessee Wine and Spirits Retailers Assn. v. Thomas, 588 U. S. ___, ___ (2019) (slip op., at 7). For the delegates, therefore, “removing state trade barriers was a principal reason for the adoption of the Constitution.” Ibid. In the state ratifying conventions, moreover, “fostering free trade among the States was prominently cited as a reason for ratification.” Id., at ___ (slip op., at 8).
The Constitution crafted by the Framers contains several provisions protecting free trade among the States. The Constitution’s protection of free trade among the States has resulted in an extraordinary 234-year record of progress: It has facilitated robust economic activity within the United States and has helped generate remarkable (albeit at times uneven) economic prosperity and growth in America relative to the other nations of the world.
This case involves the American pork industry, which ​today is a $20 billion-plus industry that generates hundreds of thousands of American jobs and serves millions of American consumers. Importantly for this case, the vast majority of pig farms are located in States other than California—such as Iowa, Minnesota, Illinois, Indiana, and North Carolina. And the vast majority of pork is likewise produced in States other than California.
In 2018, California voters nonetheless passed a ballot initiative, Proposition 12, that not only regulates pig farming and pork production in California, but also in effect regulates pig farming and pork production throughout the United States. Under Proposition 12, all pork sold to consumers in California must be derived from pigs raised in compliance with California’s strict standards for pig farming, including California’s minimum square footage of space required for housing individual pigs. By its terms, Proposition 12 applies to pigs raised and pork produced outside California.
California’s requirements for pig farms and pork production depart significantly from common agricultural practices that are lawful in major pig-farming and pork-producing States such as Iowa, Minnesota, Illinois, Indiana, and North Carolina. See Brief for Indiana et al. as Amici Curiae 24–32. Moreover, according to various amici, some of the scientific literature suggests that California’s requirements could worsen animal health and welfare. See, e.g., Brief for American Association of Swine Veterinarians as Amicus Curiae 4–19; Brief for State Pork Producers Association of Iowa et al. as Amici Curiae 25–34. Regardless of whether the amici are correct on that point, it is evident that absent California’s Proposition 12, relatively few pig farmers and pork producers in the United States would follow the practices that California now demands. Yet American pig farmers and pork producers have little choice but to comply with California’s regulatory dictates. It would be prohibitively expensive and ​practically all but impossible for pig farmers and pork producers to segregate individual pigs based on their ultimate marketplace destination in California or elsewhere. And California’s 13-percent share of the consumer pork market makes it economically infeasible for many pig farmers and pork producers to exit the California market.
California’s required changes to pig-farming and pork-production practices throughout the United States will cost American farmers and pork producers hundreds of millions (if not billions) of dollars. And those costs for pig farmers and pork producers will be passed on, in many cases, to American consumers of pork via higher pork prices nationwide. The increased costs may also result in lower wages and reduced benefits (or layoffs) for the American workers who work on pig farms and in meatpacking plants. See generally Brief for Indiana et al. as Amici Curiae 29–32; Brief for North Carolina Chamber Legal Institute et al. as Amici Curiae 9–13.
In short, through Proposition 12, California is forcing massive changes to pig-farming and pork-production practices throughout the United States. Proposition 12 therefore substantially burdens the interstate pork market. See ante, at 6–10 (opinion of Roberts, C. J.).
Under the Constitution, Congress could enact a national law imposing minimum space requirements or other regulations on pig farms involved in the interstate pork market. In the absence of action by Congress, each State may of course adopt health and safety regulations for products sold in that State. And each State may regulate ​as it sees fit with respect to farming, manufacturing, and production practices in that State. Through Proposition 12, however, California has tried something quite different and unusual. It has attempted, in essence, to unilaterally impose its moral and policy preferences for pig farming and pork production on the rest of the Nation. It has sought to deny market access to out-of-state pork producers unless their farming and production practices in those other States comply with California’s dictates. The State has aggressively propounded a “California knows best” economic philosophy—where California in effect seeks to regulate pig farming and pork production in all of the United States. California’s approach undermines federalism and the authority of individual States by forcing individuals and businesses in one State to conduct their farming, manufacturing, and production practices in a manner required by the laws of a different State.
Notably, future state laws of this kind might not be confined to the pork industry. As the amici brief of 26 States points out, what if a state law prohibits the sale of fruit picked by noncitizens who are unlawfully in the country? Brief for Indiana et al. as Amici Curiae 33. What if a state law prohibits the sale of goods produced by workers paid less than $20 per hour? Or as those States suggest, what if a state law prohibits “the retail sale of goods from producers that do not pay for employees’ birth control or abortions” (or alternatively, that do pay for employees’ birth control or abortions)? Ibid.
If upheld against all constitutional challenges, California’s novel and far-reaching regulation could provide a blueprint for other States. California’s law thus may foreshadow a new era where States shutter their markets to goods produced in a way that offends their moral or policy preferences—and in doing so, effectively force other States to regulate in accordance with those idiosyncratic state demands. That is not the Constitution the Framers ​adopted in Philadelphia in 1787.
II
Thus far, legal challenges to California’s Proposition 12 have focused on the Commerce Clause and this Court’s dormant Commerce Clause precedents.
Although the Court today rejects the plaintiffs’ dormant Commerce Clause challenge as insufficiently pled, state laws like Proposition 12 implicate not only the Commerce Clause, but also potentially several other constitutional provisions, including the Import-Export Clause, the Privileges and Immunities Clause, and the Full Faith and Credit Clause.
First, the Import-Export Clause prohibits any State, absent “the Consent of the Congress,” from imposing “any Imposts or Duties on Imports or Exports, except what may be absolutely necessary for executing” its “inspection Laws.” Art. I, §10, cl. 2. This Court has limited that Clause to imports from foreign countries. See Woodruff v. Parham, 8 Wall. 123, 133–136 (1869). As Justice Scalia and Justice Thomas have explained, that limitation may be mistaken as a matter of constitutional text and history: Properly interpreted, the Import-Export Clause may also prevent States “from imposing certain especially burdensome” taxes and duties on imports from other States—not just on imports from foreign countries. Comptroller of Treasury of Md. v. Wynne, 575 U. S. 542, 573 (2015) (Scalia, J., dissenting); see also Camps Newfound/Owatonna, Inc. v. Town of Harrison, 520 U. S. 564, 621–637 (1997) (Thomas, ​J., dissenting); Brown v. Maryland, 12 Wheat. 419, 438−439, 449 (1827).
In other words, if one State conditions sale of a good on the use of preferred farming, manufacturing, or production practices in another State where the good was grown or made, serious questions may arise under the Import-Export Clause. I do not take a position here on whether such an argument ultimately would prevail. I note only that the question warrants additional consideration in a future case.
Second, the Privileges and Immunities Clause provides that the “Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.” Art. IV, §2, cl. 1; see South Dakota v. Wayfair, Inc., 585 U. S. ___, ___–___ (2018) (Gorsuch, J., concurring) (slip op., at 1–2); see also 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); J. Eule, Laying the Dormant Commerce Clause To Rest, 91 Yale L. J. 425, 446−448 (1982). Under this Court’s precedents, one State’s efforts to effectively regulate farming, manufacturing, or production in other States could raise significant questions under that Clause. Again, I express no view on whether such an argument ultimately would prevail. But the issue warrants further analysis in a future case.
Third, the Full Faith and Credit Clause requires each State to afford “Full Faith and Credit” to the “public Acts” of “every other State.” Art. IV, §1. That Clause prevents States from “adopting any policy of hostility to the public Acts” of another State. Carroll v. Lanza, 349 U. S. 408, 413 (1955). A State’s effort to regulate farming, manufacturing, and production practices in another State (in a manner different from how that other State’s laws regulate those practices) could in some circumstances raise questions under that Clause. See, e.g., M. Rosen, State Extraterritorial Powers Reconsidered, 85 Notre Dame ​L. Rev. 1133, 1153 (2010) (“[T]he Full Faith and Credit Clause is the more natural source for limitations on state extraterritorial powers because that clause at its core is concerned with extraterritoriality”); see also D. Laycock, Equal Citizens of Equal and Territorial States: The Constitutional Foundations of Choice of Law, 92 Colum. L. Rev. 249, 290, 296−301 (1992).
For example, the plaintiffs in this case say that Ohio law expressly authorizes pig farmers in Ohio to do precisely what California’s Proposition 12 forbids. Brief for Petitioners 30–31; see Ohio Admin. Code §§901:12−8−02(G)(4), (5) (2011). If so, the Full Faith and Credit Clause might preclude California from enacting conflicting regulations on Ohio pig farmers.
Once again, I express no view on whether such an argument ultimately would succeed. But the question deserves further examination in a future case. *** As I understand it, the controlling plurality of the Court (reflected in Part IV–C of Justice Gorsuch’s opinion) today rejects the plaintiffs’ dormant Commerce Clause challenge on the ground that the plaintiffs’ complaint does not sufficiently allege that the California law at issue here imposes a substantial burden on interstate commerce under Pike. See ante, at 21–25 (plurality opinion); ante, at 1–3 (opinion of Sotomayor, J.). It appears, therefore, that properly pled dormant Commerce Clause challenges under Pike to laws like California’s Proposition 12 (or even to Proposition 12 itself) could succeed in the future—or at least survive past the motion-to-dismiss stage. Regardless, it will be important in future cases to consider that state laws like Proposition 12 also may raise substantial constitutional questions under the Import-Export Clause, the Privileges and Immunities Clause, and the Full Faith and Credit Clause.
* ↑ The Court also unanimously rejects plaintiffs’ separate claim under Healy v. Beer Institute, 491 U. S. 324 (1989).
* ↑ The majority opinion dismisses this case as not presenting a “weighty” issue. Ante, at 2. That phrasing is misplaced. This case presents a weighty constitutional question, as the Framers surely would have recognized. And it is important for the American workers, farmers, and consumers who will be significantly affected by the outcome of today’s decision.
* ↑ The portions of Justice Gorsuch’s opinion that speak for only three Justices (Parts IV–B and IV–D) refer to The Chief Justice’s opinion as a “dissent.” Ante, at 18–21, 25–27. But on the question of whether to retain the Pike balancing test in cases like this one, The Chief Justice’s opinion reflects the majority view because six Justices agree to retain the Pike balancing test: The Chief Justice and Justices Alito, Sotomayor, Kagan, Kavanaugh, and Jackson. On that legal issue, Justice Gorsuch’s opinion advances a minority view.