National Pork Producers Council v. Ross ( 2023 )

(Slip Opinion) OCTOBER TERM, 2022 1
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
NATIONAL PORK PRODUCERS COUNCIL ET AL. v.
ROSS, SECRETARY OF THE CALIFORNIA
DEPARTMENT OF FOOD AND AGRICULTURE, ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE NINTH CIRCUIT
No. 21–468. Argued October 11, 2022—Decided May 11, 2023
This case involves a challenge to a California law known as Proposition
12, which as relevant here 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.” §25991(e)(1). Prior to the vote on Proposition 12, proponents
suggested the law would benefit animal welfare and consumer health,
and opponents claimed that existing farming practices did better than
Proposition 12 protecting animal welfare (for example, by preventing
pig-on-pig aggression) and ensuring consumer health (by avoiding con-
tamination). Shortly after Proposition 12’s adoption, two organiza-
tions—the National Pork Producers Council and the American Farm
Bureau Federation (petitioners)—filed this lawsuit on behalf of their
members who raise and process pigs alleging that Proposition 12 vio-
lates the U. S. Constitution by impermissibly burdening interstate
commerce. Petitioners estimated that the cost of compliance with
Proposition 12 will increase production costs and will fall on both Cal-
ifornia and out-of-state producers. But because California imports al-
most all the pork it consumes, most of Proposition 12’s compliance
costs will be borne by out-of-state firms. The district court held that
petitioners’ complaint failed to state a claim as a matter of law and
dismissed the case. The Ninth Circuit affirmed.
Held: The judgment of the Ninth Circuit is affirmed.
6 4th 1021, affirmed.
2 NATIONAL PORK PRODUCERS COUNCIL v. ROSS
Syllabus
JUSTICE GORSUCH delivered the opinion of the Court, except as to
Parts IV–B, IV–C, and IV–D, rejecting petitioners’ theories that would
place Proposition 12 in violation of the dormant Commerce Clause
even though petitioners do not allege the law purposefully discrimi-
nates against out-of-state economic interests. Pp 5–17, 27–29.
(a) The Constitution vests Congress with the power to “regulate
Commerce . . . among the several States.” Art. I, §8, cl. 3. Although
Congress may seek to exercise this power to regulate the interstate
trade of pork, and many pork producers have urged Congress to do so,
Congress has yet to adopt any statute that might displace Proposition
12 or laws regulating pork production in other States. Petitioners’ lit-
igation theory thus rests on the dormant Commerce Clause theory,
pursuant to which the Commerce Clause not only vests Congress with
the power to regulate interstate trade, but also “contain[s] a further,
negative command,” one effectively forbidding the enforcement of “cer-
tain state [economic regulations] even when Congress has failed to leg-
islate on the subject.” Oklahoma Tax Comm’n v. Jefferson Lines, Inc.,
514 U. S. 175, 179. This Court has held that state laws offend this
dormant aspect of the Commerce Clause when they seek to “build
up . . . domestic commerce” through “burdens upon the industry and
business of other States.” Guy v. Baltimore, 100 U. S. 434, 443. At the
same time, though, the Court has reiterated that, absent purposeful
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.The antidiscrimination principle lies at the “very core” of the Court’s
dormant Commerce Clause jurisprudence. Camps New-
found/Owatonna, Inc. v. Town of Harrison, 520 U. S. 564, 581. This
Court has said that the Commerce Clause prohibits the enforcement
of state laws “driven by . . . ‘economic protectionism—that is, regula-
tory measures designed to benefit in-state economic interests by bur-
dening out-of-state competitors.’ ” Department of Revenue of Ky. v. Da-
vis, 553 U. S. 328, 337–338 (quoting New Energy Co. of Ind. v.
Limbach, 486 U. S. 269, 273–274). Petitioners here disavow any dis-
crimination-based claim, conceding that Proposition 12 imposes the
same burdens on in-state pork producers that it imposes on out-of-
state pork producers. Pp 5–8.
(b) Given petitioners’ concession that Proposition 12 does not impli-
cate the antidiscrimination principle, petitioners first invoke what
they call the “extraterritoriality doctrine.” They contend that the
Court’s 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 interests.
Cite as: 598 U. S. ____ (2023) 3
Syllabus
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. Pe-
titioners contend the rule they propose follows ineluctably from three
cases: Healy v. Beer Institute, 491 U. S. 324; Brown-Forman Distillers
Corp. v. New York State Liquor Authority, 476 U. S. 573; and Baldwin
v. G. A. F. Seelig, Inc., 294 U. S. 511. But a close look at those cases
reveals that each typifies the familiar concern with preventing pur-
poseful discrimination against out-of-state economic interests. In
Baldwin, a New York law that barred out-of-state dairy farmers from
selling their milk in the State for less than the minimum price New
York law guaranteed in-state producers “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 (discussing Baldwin). In
Brown-Forman, a New York law that required liquor distillers to af-
firm that their in-state prices were no higher than their out-of-state
prices impermissibly sought to force out-of-state distillers to “surren-
der” whatever cost advantages they enjoyed against their in-state ri-
vals, which amounted to economic protectionism. 476 U. S., at 580.
The Court reached a similar conclusion in Healy, which involved a
Connecticut law that 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. As the Court later ex-
plained, “[t]he essential vice in laws” like Connecticut’s is that they
“hoard” commerce “for the benefit of ” in-state merchants and discour-
age 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.
Petitioners insist that Baldwin, Brown-Forman, and Healy taken
together suggest an “almost per se” rule against state laws with “ex-
traterritorial effects.” While petitioners point to language in these
cases pertaining to the “practical effect” of the challenged laws on out-
of-state commerce and prices, “the 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. The language highlighted
by petitioners in Baldwin, Brown-Forman, and Healy appeared in a
particular context and did particular work. A close look at those cases
reveals nothing like the “almost per se” rule against laws that have the
“practical effect” of “controlling” extraterritorial commerce that peti-
tioners posit, and indeed petitioners’ reading would cast a shadow over
laws long understood to represent valid exercises of the States’ consti-
tutionally reserved powers. Baldwin, Brown-Forman, and Healy did
not mean to do so much. In rejecting petitioners’ “almost per se” theory
4 NATIONAL PORK PRODUCERS COUNCIL v. ROSS
Syllabus
the Court does not mean to trivialize the role territory and sovereign
boundaries play in the federal system; the Constitution takes great
care to provide rules for fixing and changing state borders. Art. IV, §3,
cl. 1. Courts must sometimes referee disputes about where one State’s
authority ends and another’s begins—both inside and outside the com-
mercial context. Indeed, the antidiscrimination principle found in the
Court’s 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, 346–347. Pp 8–14.
(c) Petitioners next point to Pike v. Bruce Church, Inc., 397 U. S. 137,
which they assert requires a court to at least assess “ ‘the burden im-
posed on interstate commerce’ ” by a state law and prevent its enforce-
ment if the law’s burdens are “ ‘clearly excessive in relation to the pu-
tative local benefits.’ ” Brief for Petitioners 44. Petitioners provide 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.
Petitioners overstate the extent to which Pike and its progeny depart
from the antidiscrimination rule that lies at the core of the Court’s
dormant Commerce Clause jurisprudence. As this Court has previously
explained, “no clear line” separates the Pike line of cases from core anti-
discrimination precedents. General Motors Corp. v. Tracy, 519 U. S.
278, 298, n. 12. If some cases focus on whether a state law discrimi-
nates on its face, the Pike line serves as an important reminder that a
law’s practical effects may also disclose the presence of a discrimina-
tory purpose. Pike itself concerned an Arizona order requiring canta-
loupes 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, stressing that even if that order could be fairly
characterized as facially neutral, it “requir[ed] business operations to
be performed in [state] that could more efficiently be performed else-
where.” 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. 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,”
Cite as: 598 U. S. ____ (2023) 5
Syllabus
Tracy, 519 U. S., at 298, n. 12, petitioners’ claim about Proposition 12
falls well outside Pike’s heartland. Pp 15–18.
(d) The Framers equipped Congress with considerable power to reg-
ulate interstate commerce and preempt contrary state laws. See U. S.
Const., Art. I, §8, cl. 3; Art. IV, §2. While this Court has inferred an
additional judicially enforceable rule against certain state laws
adopted even against the backdrop of congressional silence, the Court’s
cases also suggest extreme caution is warranted in its exercise. Disa-
vowing reliance on this Court’s core dormant Commerce Clause teach-
ings focused on discriminatory state legislation, petitioners invite the
Court to endorse new theories of implied judicial power. They would
have the Court recognize an “almost per se” rule against the enforce-
ment of state laws that have “extraterritorial effects”—even though it
has long recognized that virtually all state laws create ripple effects
beyond their borders. Alternatively, they would have the Court pre-
vent 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 below, this Court declines both in-
cautious invitations. Pp 27–29.
JUSTICE GORSUCH, joined by JUSTICE THOMAS and JUSTICE BARRETT,
concluded in Part IV–B that, accepting petitioners’ allegations, the
Pike balancing task that they propose in this case is one no court is
equipped to undertake. Some out-of-state producers who choose to
comply with Proposition 12 may incur new costs, while the law serves
moral and health interests of some magnitude for in-state residents.
In a functioning democracy, those sorts of policy choices—balancing
competing, incommensurable goods—belong to the people and their
elected representatives. Pp 18–21.
JUSTICE GORSUCH, joined by JUSTICE THOMAS, JUSTICE SOTOMAYOR,
and JUSTICE KAGAN, concluded in Part IV–C that the allegations in the
complaint were insufficient as a matter of law to demonstrate a sub-
stantial burden on interstate commerce, a showing Pike requires be-
fore a court may assess the law’s competing benefits or weigh the two
sides against each other, and that the facts pleaded merely allege
harm to some producers’ favored “methods of operation” which the
Court found insufficient to state a claim in Exxon Corp. v. Governor of
Maryland, 437 U. S. 117, 127. Pp 21–25.
JUSTICE GORSUCH, joined by JUSTICE THOMAS and JUSTICE BARRETT,
concluded in Part IV–D that petitioners have not asked the Court to
treat putative harms to out-of-state animal welfare or other noneco-
nomic interests as freestanding harms cognizable under the dormant
Commerce Clause, and in any event that the Court’s decisions author-
izing claims alleging “burdens on commerce,” Davis, 553 U. S., at 353,
6 NATIONAL PORK PRODUCERS COUNCIL v. ROSS
Syllabus
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. Pp 25–27.
JUSTICE SOTOMAYOR, joined by JUSTICE KAGAN, concluded that the
judgment should be affirmed, not because courts are incapable of bal-
ancing economic burdens against noneconomic benefits as Pike re-
quires or because of any other fundamental reworking of that doctrine,
but because petitioners fail to plausibly allege a substantial burden on
interstate commerce as required by Pike. Pp 1–3.
JUSTICE BARRETT concluded that the judgment should be affirmed
because Pike balancing requires both the benefits and burdens of a
State law to be judicially cognizable and comparable, see Department
of Revenue of Ky. v. Davis, 553 U. S. 328, 354–355, but the benefits and
burdens of Proposition 12 are incommensurable; that said, the com-
plaint plausibly alleges a substantial burden on interstate commerce
because Proposition 12’s costs are pervasive, burdensome, and will be
felt primarily (but not exclusively) outside California. Pp 1–2.
GORSUCH, J., announced the judgment of the Court, and delivered the
opinion of the Court with respect to Parts I, II, III, IV–A, and V, in which
THOMAS, SOTOMAYOR, KAGAN, and BARRETT, JJ., joined, an opinion with
respect to Parts IV–B and IV–D, in which THOMAS and BARRETT, JJ.,
joined, and an opinion with respect to Part IV–C, in which THOMAS, SO-
TOMAYOR, and KAGAN, JJ., joined. SOTOMAYOR, J., filed an opinion con-
curring in part, in which KAGAN, J., joined. BARRETT, J., filed an opinion
concurring in part. ROBERTS, C. J., filed an opinion concurring in part
and dissenting in part, in which ALITO, KAVANAUGH, and JACKSON, JJ.,
joined. KAVANAUGH, J., filed an opinion concurring in part and dissent-
ing in part.
Cite as: 598 U. S. ____ (2023) 1
Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in the
United States Reports. Readers are requested to notify the Reporter of
Decisions, Supreme Court of the United States, Washington, D. C. 20543,
pio@supremecourt.gov, of any typographical or other formal errors.
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 de-
mand 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 con-
fined 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 unconsti-
tutionally interferes with their preferred way of doing busi-
ness in violation of this Court’s dormant Commerce Clause
precedents. Both the district court and court of appeals dis-
missed the producers’ complaint for failing to state a claim.
We affirm. Companies that choose to sell products in var-
ious 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
2 NATIONAL PORK PRODUCERS COUNCIL v. ROSS
Opinion of the Court
discriminate purposefully against out-of-state economic in-
terests. But the pork producers do not suggest that Califor-
nia’s law offends this principle. Instead, they invite us to
fashion two new and more aggressive constitutional re-
strictions 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 prod-
uct differentiation reflects consumer demand, informed by
individual taste, health, or moral considerations.
Informed by similar concerns, States (and their predeces-
sors) have long enacted laws aimed at protecting animal
welfare. As far back as 1641, the Massachusetts Bay Col-
ony 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 breed-
ing 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,
Cite as: 598 U. S. ____ (2023) 3
Opinion of the Court
App. §§1–3, 1–5 (Cum. Supp. 2023). Nor is that State alone.
Florida’s Constitution prohibits “any person [from] con-
fin[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 breed-
ing 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 Prop-
osition 12’s adoption, the State has begun developing “pro-
posed regulations” that would permit compliance “certi-
fication[s]” to be issued “by non-governmental third
parties, many used for myriad programs (e.g., ‘organic’) al-
ready.” 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 Re-
view, July 11, 2022, https://www.nationalreview.com/2022/
4 NATIONAL PORK PRODUCERS COUNCIL v. ROSS
Opinion of the Court
07/a-brief-for-the-pigs-the-case-of-national-pork-producers-
council-v-ross/. These animals may receive their only op-
portunity 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 Elec-
tion—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 poi-
soning.” 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 avoid-
ing 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 organiza-
tions—the National Pork Producers Council and the Amer-
ican 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 num-
ber of facts. They acknowledged that, in response to con-
sumer demand and the laws of other States, 28% of their
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Opinion of the Court
industry has already converted to some form of group hous-
ing for pregnant pigs. Id., at 186a. But, petitioners cau-
tioned, even some farmers who already raise group-housed
pigs will have to modify their practices if they wish to com-
ply 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 re-
quire certain processing firms to make substantial new cap-
ital investments. Id., at 205a–206a. Ultimately, petition-
ers 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 Cali-
fornia 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 our-
selves. 596 U. S. ___ (2022).
II
The Constitution vests Congress with the power to “reg-
ulate 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
6 NATIONAL PORK PRODUCERS COUNCIL v. ROSS
Opinion of the Court
state laws. See Art. VI, cl. 2. But everyone also agrees that
we have nothing like that here. Despite the persistent ef-
forts of certain pork producers, Congress has yet to adopt
any statute that might displace Proposition 12 or laws reg-
ulating 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 Com-
merce 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, neg-
ative command,” one effectively forbidding the enforcement
of “certain state [economic regulations] even when Con-
gress 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 Phil-
adelphia 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 substan-
tial 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
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Opinion of the Court
“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 ex-
clude from its territory, or prohibit the sale therein of any
articles which, in its judgment, fairly exercised, are preju-
dicial 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 eco-
nomic 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
8 NATIONAL PORK PRODUCERS COUNCIL v. ROSS
Opinion of the Court
elsewhere in the Constitution. Perhaps in the Import–Ex-
port Clause, which prohibits States from “lay[ing] any Im-
posts or Duties on Imports or Exports” without permission
from Congress. Art. I, §10, cl. 2; see Camps New-
found/Owatonna, 520 U. S., at 621–637 (THOMAS, J., dis-
senting). Perhaps in the Privileges and Immunities Clause,
which entitles “[t]he Citizens of each State” to “all Privi-
leges 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, pe-
titioners begin in a tough spot. They do not allege that Cal-
ifornia’s law seeks to advantage in-state firms or disad-
vantage 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, petition-
ers invoke what they call “extraterritoriality doctrine.” Id.,
at 19. They contend that our dormant Commerce Clause
Cite as: 598 U. S. ____ (2023) 9
Opinion of the Court
cases suggest an additional and “almost per se” rule forbid-
ding enforcement of state laws that have the “practical ef-
fect 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 ar-
gument. Focus just on the major (legal) premise. Petition-
ers say the “almost per se” rule they propose follows ineluc-
tably 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 petition-
ers 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 guaran-
teed in-state producers. Id., at 519. In that way, the chal-
lenged 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 exam-
ple, lower cost structures, more productive farming prac-
tices, 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:
10 NATIONAL PORK PRODUCERS COUNCIL v. ROSS
Opinion of the Court
They “plainly discriminate[d]” against out-of-staters by
“erecting an economic barrier protecting a major local in-
dustry 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 cus-
toms 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 liq-
uor 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” what-
ever cost advantages they enjoyed against their in-state ri-
vals. 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 consum-
ers from crossing state lines to make their purchases from
nearby out-of-state vendors. C & A Carbone, Inc. v. Clarks-
town, 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 discrim-
inate[d] against interstate commerce.” 491 U. S., at 340–
341. The Court also worried that, if the Connecticut law
Cite as: 598 U. S. ____ (2023) 11
Opinion of the Court
stood, “each of the border States” could “enac[t] statutes es-
sentially identical to Connecticut’s” in retaliation—a result
often associated with avowedly protectionist economic poli-
cies. 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 dis-
criminatory purpose in the challenged laws; they also sug-
gested an “almost per se” rule against state laws with “ex-
traterritorial 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 “con-
trol[ling] commerce ‘occurring wholly outside the bounda-
ries 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 Peti-
tioners 21 (quoting 476 U. S., at 583). Petitioners point to
similar language in Baldwin as well. Brief for Petition-
ers 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 stat-
ute.” 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 care-
ful 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 petition-
ers highlight appeared in a particular context and did par-
ticular work. Throughout, the Court explained that the
challenged statutes had a specific impermissible “extrater-
ritorial effect”—they deliberately “prevent[ed out-of-state
12 NATIONAL PORK PRODUCERS COUNCIL v. ROSS
Opinion of the Court
firms] from undertaking competitive pricing” or “deprive[d]
businesses and consumers in other States of ‘whatever com-
petitive 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 Envi-
ronment 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 “prac-
tical effect of controlling” extraterritorial behavior. State
income tax laws lead some individuals and companies to re-
locate to other jurisdictions. See, e.g., Banner v. United
States, 428 F. 3d 303, 310 (CADC 2005) (per curiam). En-
vironmental 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 re-
quirements, franchise laws, tort laws,” and plenty else be-
sides. 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
Cite as: 598 U. S. ____ (2023) 13
Opinion of the Court
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 exer-
cises 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 bounda-
ries 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 author-
ity 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 ter-
ritory,” Hoyt v. Sprague, 103 U. S. 613, 630 (1881), a feature
of our constitutional order that allows “different communi-
ties” to live “with different local standards,” Sable Commu-
nications 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. Bona-
parte 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,
14 NATIONAL PORK PRODUCERS COUNCIL v. ROSS
Opinion of the Court
this Court has long consulted original and historical under-
standings 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 rep-
resent one more effort to mediate competing claims of sov-
ereign 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 ex-
traterritorially must yield to an “almost per se” rule under
the dormant Commerce Clause. This Court has never be-
fore claimed so much “ground for judicial supremacy under
the banner of the dormant Commerce Clause.” United
Haulers Assn., Inc. v. Oneida-Herkimer Solid Waste Man-
agement Authority, 550 U. S. 330, 347 (2007). We see no
reason to change course now.1
——————
1 Beyond Baldwin, Brown-Forman, and Healy, petitioners point to Ed-
gar v. MITE Corp., 457 U. S. 624 (1982), as authority for the “almost per
se” rule they propose. Invoking the dormant Commerce Clause, a plural-
ity in that case declined to enforce an Illinois securities law that “directly
regulate[d] transactions which [took] place . . . wholly outside the State”
and involved individuals “having no connection with Illinois.” Id., at
641–643 (emphasis added). Some have questioned whether the state law
at issue in Edgar posed a dormant Commerce Clause question as much
as one testing the territorial limits of state authority under the Consti-
tution’s horizontal separation of powers. See, e.g., D. Regan, Siamese
Essays: (I) CTS Corp. v. Dynamics Corp. of America and Dormant Com-
merce Clause Doctrine; (II) Extraterritorial State Legislation, 85 Mich.
L. Rev. 1865, 1875–1880, 1897–1902 (1987); cf. Shelby County v. Holder,
570 U. S. 529, 535 (2013) (“[A]ll States enjoy equal sovereignty”). But
either way, the Edgar plurality opinion does not support the rule peti-
tioners propose. That decision spoke to a law that directly regulated out-
Cite as: 598 U. S. ____ (2023) 15
Opinion of the Court
IV
Failing in their first theory, petitioners retreat to a sec-
ond 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 ben-
efits.’ ” 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 im-
poses 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 antidiscrimina-
tion rule that lies at the core of our dormant Commerce
Clause jurisprudence. As this Court has previously ex-
plained, “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 discrimi-
nates on its face, the Pike line serves as an important re-
minder that a law’s practical effects may also disclose the
presence of a discriminatory purpose.
Pike itself illustrates the point. That case concerned an
——————
of-state transactions by those with no connection to the State. Petition-
ers do not allege those conditions exist here. To the contrary, they
acknowledge that Proposition 12 regulates only products that companies
choose to sell “within” California. Cal. Health & Safety Code Ann.
§25990(b).
16 NATIONAL PORK PRODUCERS COUNCIL v. ROSS
Opinion of the Court
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 Com-
merce 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 mes-
sage. In Minnesota v. Clover Leaf Creamery Co., the Court
found no impermissible burden on interstate commerce be-
cause, 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., concur-
ring in part and dissenting in part) (asking whether the “ac-
tual 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
Cite as: 598 U. S. ____ (2023) 17
Opinion of the Court
(CA7 2017); Amanda Acquisition Corp. v. Universal Foods
Corp., 877 F. 2d 496, 505 (CA7 1989). So have many schol-
ars. See, e.g., R. Fallon, The Dynamic Constitution 311 (2d
ed. 2013) (observing that Pike serves to “ ‘smoke out’ a hid-
den” 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 discrimi-
nates on its face. They nowhere suggest that an examina-
tion 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 num-
ber 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
——————
2 Most notably, Tracy referred to, and petitioners briefly allude to, a
line of cases that originated before Pike in which this Court refused to
enforce certain state regulations on instrumentalities of interstate trans-
portation—trucks, trains, and the like. See, e.g., Bibb v. Navajo Freight
Lines, Inc., 359 U. S. 520, 523–530 (1959) (concerning a state law speci-
fying certain mud flaps for trucks and trailers); Southern Pacific Co. v.
Arizona ex rel. Sullivan, 325 U. S. 761, 763–782 (1945) (addressing a
state law regarding the length of trains). Petitioners claim these cases
support something like the extraterritoriality or balancing rules they
propose. But at least some decisions in this line might be viewed as con-
demning state laws that “although neutral on their face . . . were enacted
at the instance of, and primarily benefit,” in-state interests. Raymond
Motor Transp., Inc. v. Rice, 434 U. S. 429, 447 (1978); see also B. Fried-
man & D. Deacon, A Course Unbroken: The Constitutional Legitimacy
of the Dormant Commerce Clause, 97 Va. L. Rev. 1877, 1927 (2011). In
any event, this Court “has only rarely held that the Commerce Clause
itself pre-empts an entire field from state regulation, and then only when
a lack of national uniformity would impede the flow of interstate goods.”
18 NATIONAL PORK PRODUCERS COUNCIL v. ROSS
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Opinion Court
ORSUCH, J.
Pike’s heartland. That is not an auspicious start.
B
Matters do not improve from there. While Pike has tra-
ditionally served as another way to test for purposeful dis-
crimination against out-of-state economic interests, and
while some of our cases associated with that line have ex-
pressed special concern with certain state regulation of the
instrumentalities of interstate transportation, see n. 2, su-
pra, 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 authori-
ties the Commerce Clause may imply, that kind of free-
wheeling 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 re-
claim that ground” in the name of the dormant Commerce
Clause. Id., at 347.
Not only is the task petitioners propose one the Com-
merce Clause does not authorize judges to undertake. This
Court has also recognized that judges often are “not insti-
tutionally suited to draw reliable conclusions of the kind
——————
Exxon Corp. v. Governor of Maryland, 437 U. S. 117, 128 (1978) (empha-
sis added). Nothing like that exists here. We do not face a law that
impedes the flow of commerce. Pigs are not trucks or trains.
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ORSUCH, J.
that would be necessary . . . to satisfy [the] Pike” test as pe-
titioners 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 produc-
tion expenses because of Proposition 12. On the “benefits”
side, petitioners acknowledge that Californians voted for
Proposition 12 to vindicate a variety of interests, many non-
economic. 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 hous-
ing” and by the State’s concern for the “ ‘health and safety
of California consumers’ ”). How is a court supposed to com-
pare 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 resolu-
tion 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 some-
times 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 Tele-
graph 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 de-
rived from practices its voters consider “cruel.” Petitioners
20 NATIONAL PORK PRODUCERS COUNCIL v. ROSS
OpinionofofGthe
Opinion Court
ORSUCH, J.
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 health-
ier 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. Oth-
ers might fairly disagree. How should we settle that dis-
pute? The competing goods are incommensurable. Your
guess is as good as ours.
More accurately, your guess is better than ours. In a func-
tioning 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 dem-
ocratically 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
Cite as: 598 U. S. ____ (2023) 21
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ORSUCH, J.
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 sup-
port 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 ma-
jority of a handful of judges may seem easier than marshal-
ing 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 plau-
sibly 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 com-
plaint before us fails to clear even that bar.
To appreciate petitioners’ problem, compare our case to
Exxon. That case involved a Maryland law prohibiting pe-
troleum 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 en-
tirely 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
22 NATIONAL PORK PRODUCERS COUNCIL v. ROSS
OpinionofofGthe
Opinion Court
ORSUCH, J.
Clause.
This Court found the allegations in Exxon’s complaint in-
sufficient as a matter of law to demonstrate a substantial
burden on interstate commerce. Without question, Mary-
land’s law favored one business structure (independent gas
station retailers) over another (vertically integrated pro-
duction 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 log-
ically 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 re-
tail gas station chains that did not produce petroleum. Id.,
at 125–126. And as far as anyone could tell, the law’s “prac-
tical effect” wasn’t to protect in-state producers; it was to
shift market share from one set of out-of-state firms (verti-
cally 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 struc-
ture’ ” would “impermissibly burde[n] interstate com-
merce.” Id., at 127. If the dormant Commerce Clause pro-
tects 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 inte-
grated businesses faced a choice: They could divest their
production capacities or withdraw from the local retail mar-
ket. 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
Cite as: 598 U. S. ____ (2023) 23
OpinionofofGthe
Opinion Court
ORSUCH, J.
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 al-
low 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 pro-
cessors who decline to segregate their products) will be re-
placed 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 diffi-
cult 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 al-
ready 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
24 NATIONAL PORK PRODUCERS COUNCIL v. ROSS
OpinionofofGthe
Opinion Court
ORSUCH, J.
enhance their own profits may choose to modify their exist-
ing 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 produc-
ers will be able to “pas[s] along” at least “some” of their in-
creased 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 Haul-
ers, 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 meth-
ods will have to pick up the tab (let alone explain how peti-
tioners 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.”
——————
3 Though it is unnecessary to adorn the point, we note that a number
of smaller out-of-state pork producers have filed an amicus brief in this
Court hailing the “opportunities” Proposition 12 affords them to compete
with vertically integrated firms with “ ‘concentrated market power’ ” that
are wedded to their existing processing practices. Brief for Small and
Independent Farming Businesses et al. as Amici Curiae 1, 12, 19–20.
Other amici have noted that even some large vertically integrated pro-
cessing firms have already begun to modify (or else have indicated their
intention to modify) their operations to comply with Proposition 12. See
Brief for Perdue Premium Meat Co., Inc., as Amicus Curiae 3–7; see also
Brief for Economic Research Organizations as Amici Curiae 16–17 (re-
citing public statements from Hormel, Smithfield, and Tyson). Another
large processing firm, Cargill, has boasted that, “ ‘[b]efore we sold our
pork business in 2015, we led the industry in removing gestation stalls
to house pregnant sows.’ ” Id., at 16. Petitioner National Pork Producers
Council lists Cargill as an “allied industry compan[y].” National Pork
Producers Council, Pork Alliance Program, https://nppc.org/get-in-
volved/join-the-pork-alliance/.
Cite as: 598 U. S. ____ (2023) 25
OpinionofofGthe
Opinion Court
ORSUCH, J.
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 con-
sumers 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 pro-
ducers’ 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 read-
ing of Pike that would permit judges to enjoin the enforce-
ment 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 prece-
dents 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 horse-
meat 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 differ-
ent products, ones they can lawfully sell nationwide. Under
the lead dissent’s test, all it would take is one complaint
26 NATIONAL PORK PRODUCERS COUNCIL v. ROSS
OpinionofofGthe
Opinion Court
ORSUCH, J.
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 sin-
gle-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 Cali-
fornia’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 differ-
ence, 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 omit-
ted).
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
Cite as: 598 U. S. ____ (2023) 27
Opinion of the Court
ROBERTS, C. J.). These include social costs that are “diffi-
cult 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 (opin-
ion 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 Com-
merce 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 leg-
islation in light of any conceivable out-of-state interest, eco-
nomic 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”; Connecti-
cut levied duties on goods “brought into th[e] State, by Land
——————
4 Both dissents seek to characterize today’s decision as “fractured” in
an effort to advance their own overbroad readings of Pike and layer their
own gloss on opinions they do not join. Post, at 1, 8 (opinion of
KAVANAUGH, J.); see also post at 2–4, 8–10 (opinion of ROBERTS, C. J.).
But the dissents are just that—dissents. Their glosses do not speak for
the Court. Today, the Court unanimously disavows petitioners’ “almost
per se” rule against laws with extraterritorial effects. See Parts II and
III, supra. When it comes to Pike, a majority agrees that heartland Pike
cases seek to smoke out purposeful discrimination in state laws (as illu-
minated by those laws’ practical effects) or seek to protect the instrumen-
talities of interstate transportation. See Part IV–A, supra. A majority
also rejects any effort to expand Pike’s domain to cover cases like this
one, some of us for reasons found in Part IV–B, others of us for reasons
discussed in Part IV–C. Today’s decision depends equally on the analysis
found in both of these sections; without either, there is no explaining the
Court’s judgment affirming the decision below. A majority also sub-
scribes to what follows in Part V.
28 NATIONAL PORK PRODUCERS COUNCIL v. ROSS
Opinion of the Court
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 Ex-
cise Upon Certain Articles, Feb. 24, 1783 R. I. Acts and Re-
solves 45; An Act for Levying and Collecting a Duty on Cer-
tain 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 Cer-
tain Taxes and Duties, and for Establishing a Permanent
Revenue (May 6, 1782), in 11 Statues at Large, Laws of Vir-
ginia 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 in-
terstate 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 congres-
sional 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 mat-
ter of “extreme delicacy,” something courts should do only
“where the infraction is clear.” Conway v. Taylor’s Execu-
tor, 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
Cite as: 598 U. S. ____ (2023) 29
Opinion of the Court
this Court’s core dormant Commerce Clause teachings fo-
cused on discriminatory state legislation. Instead, petition-
ers 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 “extra-
territorial effects”—even though this Court has recognized
since Gibbons that virtually all state laws create ripple ef-
fects 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’ in-
cautious invitations.
The judgment of the Ninth Circuit is
Affirmed.
Cite as: 598 U. S. ____ (2023) 1
SOTOMAYOR, J., ,concurring
SOTOMAYOR J., concurring
in part
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 SOTOMAYOR, with whom JUSTICE KAGAN joins,
concurring in part.
I join all but Parts IV–B and IV–D of JUSTICE GORSUCH’s
opinion. Given the fractured nature of Part IV, I write sep-
arately to clarify my understanding of why petitioners’ Pike
claim fails. In short, I vote to affirm the judgment because
petitioners fail to allege a substantial burden on interstate
commerce as required by Pike, not because of any funda-
mental reworking of that doctrine.
* * *
In Pike v. Bruce Church, Inc., 397 U. S. 137 (1970), the
Court distilled a general principle from its prior cases.
“Where [a] statute regulates even-handedly to effectuate a
legitimate local public interest, and its effects on interstate
commerce are only incidental, it will be upheld unless the
burden imposed on such commerce is clearly excessive in
relation to the putative local benefits.” Id., at 142. Further,
“the extent of the burden that will be tolerated will of course
depend on the nature of the local interest involved, and on
whether it could be promoted as well with a lesser impact
on interstate activities.” Ibid.2 NATIONAL PORK PRODUCERS COUNCIL v. ROSS
SOTOMAYOR, J., ,concurring
SOTOMAYOR J., concurring
in part
As the Court’s opinion here explains, Pike’s balancing and
tailoring principles are most frequently deployed to detect
the presence or absence of latent economic protectionism.
See ante, at 15–18. That is no surprise. Warding off state
discrimination against interstate commerce is at the heart
of our dormant Commerce Clause jurisprudence. See ante,
at 7, 9–11, 15–16.
As the Court’s opinion also acknowledges, however, the
Court has “generally le[ft] the courtroom door open” to
claims premised on “even nondiscriminatory burdens.” De-
partment of Revenue of Ky. v. Davis, 553 U. S. 328, 353
(2008); see ante, at 17. Indeed, “a small number” of this
Court’s cases in the Pike line “have invalidated state laws
. . . that appear to have been genuinely nondiscriminatory”
in nature. General Motors Corp. v. Tracy, 519 U. S. 278,
298, n. 12 (1997); see ante, at 17. Often, such cases have
addressed state laws that impose burdens on the arteries of
commerce, on “trucks, trains, and the like.” Ibid., n. 2. Yet,
there is at least one exception to that tradition. See Edgar
v. MITE Corp., 457 U. S. 624, 643–646 (1982) (invalidating
a nondiscriminatory state law that regulated tender offers
to shareholders).
Pike claims that do not allege discrimination or a burden
on an artery of commerce are further from Pike’s core. As
THE CHIEF JUSTICE recognizes, however, the Court today
does not shut the door on all such Pike claims. See ante, at
17–18, and n. 2; post, at 2–3. Thus, petitioners’ failure to
allege discrimination or an impact on the instrumentalities
of commerce does not doom their Pike claim.
Nor does a majority of the Court endorse the view that
judges are not up to the task that Pike prescribes. JUSTICE
GORSUCH, for a plurality, concludes that petitioners’ Pike
claim fails because courts are incapable of balancing eco-
nomic burdens against noneconomic benefits. See ante, at
18–21. I do not join that portion of JUSTICE GORSUCH’s
Cite as: 598 U. S. ____ (2023) 3
SOTOMAYOR, J., ,concurring
SOTOMAYOR J., concurring
in part
opinion. I acknowledge that the inquiry is difficult and del-
icate, and federal courts are well advised to approach the
matter with caution. See ante, at 28. Yet, I agree with THE
CHIEF JUSTICE that courts generally are able to weigh dis-
parate burdens and benefits against each other, and that
they are called on to do so in other areas of the law with
some frequency. See post, at 3–4. The means-ends tailoring
analysis that Pike incorporates is likewise familiar to courts
and does not raise the asserted incommensurability prob-
lems that trouble JUSTICE GORSUCH.
In my view, and as JUSTICE GORSUCH concludes for a sep-
arate plurality of the Court, petitioners’ Pike claim fails for
a much narrower reason. Reading petitioners’ allegations
in light of the Court’s decision in Exxon Corp. v. Governor
of Maryland, 437 U. S. 117 (1978), the complaint fails to al-
lege a substantial burden on interstate commerce. See
ante, at 21–25. Alleging a substantial burden on interstate
commerce is a threshold requirement that plaintiffs must
satisfy before courts need even engage in Pike’s balancing
and tailoring analyses. Because petitioners have not done
so, they fail to state a Pike claim.
Cite as: 598 U. S. ____ (2023) 1
BARRETT , J., ,concurring
BARRETT J., concurring
in part
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 BARRETT, concurring in part.
A state law that burdens interstate commerce in clear ex-
cess of its putative local benefits flunks Pike balancing.
Pike v. Bruce Church, Inc., 397 U. S. 137, 142 (1970). In
most cases, Pike’s “general rule” reflects a commonsense
principle: Where there’s smoke, there’s fire. Ibid. Under
our dormant Commerce Clause jurisprudence, one State
may not discriminate against another’s producers or con-
sumers. A law whose burdens fall incommensurately and
inexplicably on out-of-state interests may be doing just
that.
But to weigh benefits and burdens, it is axiomatic that
both must be judicially cognizable and comparable. See De-
partment of Revenue of Ky. v. Davis, 553 U. S. 328, 354–355
(2008). I agree with JUSTICE GORSUCH that the benefits
and burdens of Proposition 12 are incommensurable. Cali-
fornia’s interest in eliminating allegedly inhumane prod-
ucts from its markets cannot be weighed on a scale opposite
dollars and cents—at least not without second-guessing the
moral judgments of California voters or making the kind of
policy decisions reserved for politicians. Ante, at 18–21; Da-
vis, 553 U. S., at 360 (Scalia, J., concurring in part). None
2 NATIONAL PORK PRODUCERS COUNCIL v. ROSS
BARRETT , J., ,concurring
BARRETT J., concurring
in part
of our Pike precedents requires us to attempt such a feat.
That said, I disagree with my colleagues who would hold
that petitioners have failed to allege a substantial burden
on interstate commerce. Ante, at 21–25; ante, at 3
(SOTOMAYOR, J., concurring in part). The complaint plau-
sibly alleges that Proposition 12’s costs are pervasive, bur-
densome, and will be felt primarily (but not exclusively)
outside California. See post, at 6–7 (ROBERTS, C. J., con-
curring in part and dissenting in part). For this reason, I
do not join Part IV–C of JUSTICE GORSUCH’s opinion. If the
burdens and benefits were capable of judicial balancing, I
would permit petitioners to proceed with their Pike claim.
Cite as: 598 U. S. ____ (2023) 1
ROBERTS, C. J., concurring inOBERTS
Opinion of R part and
, C.dissenting
J. in part
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]
CHIEF JUSTICE ROBERTS, with whom JUSTICE ALITO,
JUSTICE KAVANAUGH, and JUSTICE JACKSON join, concur-
ring in part and dissenting in part.
I agree with the Court’s view in its thoughtful opinion
that many of the leading cases invoking the dormant Com-
merce Clause are properly read as invalidating statutes
that promoted economic protectionism. See ante, at 8–11.
I also agree with the Court’s conclusion that our precedent
does not support a per se rule against state laws with “ex-
traterritorial” effects. See ante, at 11–14. But I cannot
agree with the approach adopted by some of my colleagues
to analyzing petitioners’ claim based on Pike v. Bruce
Church, Inc., 397 U. S. 137, 142 (1970). See ante, at 15–27
(opinion of GORSUCH, J.); ante, at 3 (SOTOMAYOR, J. concur-
ring in part); ante, at 1–2 (BARRETT, J., concurring in part).
Pike provides that nondiscriminatory state regulations
are valid under the Commerce Clause “unless the burden
imposed on [interstate] commerce is clearly excessive in re-
lation to the putative local benefits.” 397 U. S., at 142. A
majority of the Court thinks that petitioners’ complaint
does not make for “an auspicious start” on that claim. Ante,
at 18. In my view, that is through no fault of their own.
2 NATIONAL PORK PRODUCERS COUNCIL v. ROSS
Opinion of ROBERTS, C. J.
The Ninth Circuit misapplied our existing Pike jurispru-
dence in evaluating petitioners’ allegations. I would find
that petitioners’ have plausibly alleged a substantial bur-
den against interstate commerce, and would therefore va-
cate the judgment and remand the case for the court below
to decide whether petitioners have stated a claim under
Pike.
I
The Ninth Circuit stated that “[w]hile the dormant Com-
merce Clause is not yet a dead letter, it is moving in that
direction.” 6 F. 4th 1021, 1033 (2021). Today’s majority
does not pull the plug. For good reason: Although Pike is
susceptible to misapplication as a freewheeling judicial
weighing of benefits and burdens, it also reflects the basic
concern of our Commerce Clause jurisprudence that there
be “free private trade in the national marketplace.” General
Motors Corp. v. Tracy, 519 U. S. 278, 287 (1997) (quoting
Reeves, Inc. v. Stake, 447 U. S. 429, 437 (1980)); see also
Hunt v. Washington State Apple Advertising Comm’n, 432
U. S. 333, 350 (1977) (Pike protects “a national ‘common
market’ ”). “Our system, fostered by the Commerce Clause,
is that every farmer and every craftsman shall be encour-
aged to produce by the certainty that he will have free ac-
cess to every market in the Nation, that no home embargoes
will withhold his exports, and no foreign state will by cus-
toms duties or regulations exclude them.” H. P. Hood &
Sons, Inc. v. Du Mond, 336 U. S. 525, 539 (1949).
The majority’s discussion of our Pike jurisprudence high-
lights two types of cases: those involving discriminatory
state laws and those implicating the “instrumentalities of
interstate transportation.” Ante, at 17, n. 2. But Pike has
not been so narrowly typecast. As a majority of the Court
acknowledges, “we generally leave the courtroom door open
to plaintiffs invoking the rule in Pike, that even nondiscrim-
inatory burdens on commerce may be struck down on a
Cite as: 598 U. S. ____ (2023) 3
Opinion of ROBERTS, C. J.
showing that those burdens clearly outweigh the benefits of
a state or local practice.” Department of Revenue of Ky. v.
Davis, 553 U. S. 328, 353 (2008); see also United Haulers
Assn., Inc. v. Oneida-Herkimer Solid Waste Management
Authority, 550 U. S. 330, 346 (2007) (plurality opinion)
(Pike applies to “a nondiscriminatory statute like this one”).
Nor have our cases applied Pike only where a State regu-
lates the instrumentalities of transportation. Pike itself ad-
dressed an Arizona law regulating cantaloupe packaging.
See 397 U. S., at 138. And we have since applied Pike to
invalidate nondiscriminatory state laws that do not concern
transportation. Edgar v. MITE Corp., 457 U. S. 624, 643–
646 (1982). As a majority of the Court agrees, Pike extends
beyond laws either concerning discrimination or governing
interstate transportation. See ante, at 2 (opinion of
SOTOMAYOR, J.); post, at 1–2 (KAVANAUGH, J., concurring
in part and dissenting in part).
Speaking for three Members of the Court, JUSTICE
GORSUCH objects that balancing competing interests under
Pike is simply an impossible judicial task. See ante, at 18–
21. I certainly appreciate the concern, see United Haulers,
550 U. S., at 343, 347, but sometimes there is no avoiding
the need to weigh seemingly incommensurable values. See,
e.g., Schneider v. State (Town of Irvington), 308 U. S. 147,
162 (1939) (weighing “the purpose to keep the streets clean
and of good appearance” against the “the constitutional pro-
tection of the freedom of speech and press”); Winston v. Lee,
470 U. S. 753, 760 (1985) (“The reasonableness” under the
Fourth Amendment “of surgical intrusions beneath the skin
depends on a case-by-case approach, in which the individ-
ual’s interests in privacy and security are weighed against
society’s interests in conducting the procedure.”); Adding-
ton v. Texas, 441 U. S. 418, 425 (1979) (“In considering what
standard should govern in a civil commitment proceeding,
we must assess both the extent of the individual’s interest
in not being involuntarily confined indefinitely and the
4 NATIONAL PORK PRODUCERS COUNCIL v. ROSS
Opinion of ROBERTS, C. J.
state’s interest in committing the emotionally disturbed un-
der a particular standard of proof.”). Here too, a majority
of the Court agrees that it is possible to balance benefits
and burdens under the approach set forth in Pike. See ante,
at 2–3 (opinion of SOTOMAYOR, J.); post, at 1–2 (opinion of
KAVANAUGH, J.).
II
This case comes before us on a Federal Rule of Civil Pro-
cedure 12(b)(6) motion to dismiss, and in my view the court
below erred in how it analyzed petitioners’ allegations un-
der Pike. The Ninth Circuit reasoned that “[f]or dormant
Commerce Clause purposes, laws that increase compliance
costs, without more, do not constitute a significant burden
on interstate commerce.” 6 F. 4th, at 1032. The panel then
dismissed petitioners’ claim under Pike by concluding that
the complaint alleged only an increase in compliance costs
due to Proposition 12. 6 F. 4th, at 1033. But, as I read it,
the complaint alleges more than simply an increase in
“compliance costs,” unless such costs are defined to include
all the fallout from a challenged regulatory regime. Peti-
tioners identify broader, market-wide consequences of com-
pliance—economic harms that our precedents have recog-
nized can amount to a burden on interstate commerce. I
would therefore find that petitioners have stated a substan-
tial burden against interstate commerce, vacate the judg-
ment below, and remand this case for the Ninth Circuit to
consider whether petitioners have plausibly claimed that
the burden alleged outweighs any “putative local interests”
under Pike. 397 U. S., at 142.
A
Our precedents have long distinguished the costs of com-
plying with a given state regulation from other economic
harms to the interstate market. Bibb v. Navajo Freight
Lines, Inc., 359 U. S. 520 (1959), illustrates the point. In
Cite as: 598 U. S. ____ (2023) 5
Opinion of ROBERTS, C. J.
that case, we considered an Illinois law requiring that
trucks and trailers use a particular kind of mudguard. The
“cost of installing” the mudguards was “$30 or more per ve-
hicle,” amounting to “$4,500 to $45,840” for the trucking
companies at issue. Id., at 525. But beyond documenting
those direct costs of complying with the Illinois law, we also
noted other derivative harms flowing from the regulation.
The mudguard rule threatened “significant delay in an op-
eration where prompt movement may be of the essence.”
Id., at 527. Also, changing mudguard types when crossing
into Illinois from a State with a different standard would
require “two to four hours of labor” and could prove “exceed-
ingly dangerous.” Ibid. We concluded that “[c]ost taken
into consideration” together with those “other factors” could
constitute a burden on interstate commerce. Id., at 526
(emphasis added). Subsequent cases followed Bibb’s logic
by analyzing economic impact to the interstate market sep-
arately from immediate costs of compliance. See Kassel v.
Consolidated Freightways Corp. of Del., 450 U. S. 662, 674
(1981) (plurality opinion) (separating “increas[ed] . . . costs”
from the fact that the challenged “law may aggravate . . .
the problem of highway accidents” in describing the burden
on interstate commerce); Raymond Motor Transp., Inc. v.
Rice, 434 U. S. 429, 445, and n. 21 (1978) (analyzing an in-
crease in “cost” independently of other consequential ef-
fects, such as “slow[ing] the movement of goods”).
Pike itself did not conflate harms to the interstate market
with compliance costs. In Pike, we analyzed an Arizona law
requiring that cantaloupes grown in the State be packed
prior to shipment across state lines. 397 U. S., at 138. We
noted repeatedly that the regulation would require the ap-
pellee to construct an unneeded packing facility in Arizona
at a cost of $200,000. Id., at 140, 144, 145. But we consid-
ered that cost together with the “nature” of a regulation “re-
quiring business operations to be performed in the home
6 NATIONAL PORK PRODUCERS COUNCIL v. ROSS
Opinion of ROBERTS, C. J.
State.” Id., at 145. The Court in Pike found both compli-
ance costs and consequential market harms cognizable in
determining whether the law at issue impermissibly bur-
dened interstate commerce.
The derivative harms we have long considered in this
context are in no sense “noneconomic.” Ante, at 27 (opinion
of GORSUCH, J.). Regulations that “aggravate . . . the prob-
lem of highway accidents,” Kassel, 450 U. S., at 674, or
“slow the movement of goods,” Rice, 434 U. S., at 445, im-
pose economic burdens, even if those burdens may be diffi-
cult to quantify and may not arise immediately. Our cases
provide no license to chalk up every economic harm—no
matter how derivative—to a mere cost of compliance.
Nor can the foregoing cases be dismissed because they ei-
ther involved the instrumentalities of transportation or a
state law born of discriminatory purpose. As discussed
above, we have applied Pike to state laws that neither con-
cerned transportation nor discriminated against commerce.
See Edgar, 457 U. S., at 643–646. The Pike balance may
well come out differently when it comes to interstate trans-
portation, an area presenting a strong interest in “national
uniformity.” Tracy, 519 U. S., at 298, n. 12. But the error
below does not concern a particular balancing of interests
under Pike; it concerns how to analyze the burden on inter-
state commerce in the first place.
B
As in our prior cases, petitioners here allege both compli-
ance costs and consequential harms to the interstate mar-
ket. With respect to compliance costs, petitioners allege
that Proposition 12 demands significant capital expendi-
tures for farmers who wish to sell into California. “Produc-
ers . . . will need to spend” between $290 and $348 million
“of additional capital in order to reconstruct their sow hous-
ing and overcome the productivity loss that Proposition 12
imposes.” App. to Pet. for Cert. 214a. All told, compliance
Cite as: 598 U. S. ____ (2023) 7
Opinion of ROBERTS, C. J.
will “increase production costs per pig by over $13 dollars
per head, a 9.2% cost increase at the farm level.” Ibid.
Separate and apart from those costs, petitioners assert
harms to the interstate market itself. The complaint al-
leges that the interstate pork market is so interconnected
that producers will be “forced to comply” with Proposition
12, “even though some or even most of the cuts from a hog
are sold in other States.” Id., at 213a; id., at 239a. Propo-
sition 12 may not expressly regulate farmers operating out
of State. But due to the nature of the national pork market,
California has enacted rules that carry implications for pro-
ducers as far flung as Indiana and North Carolina, whether
or not they sell in California. The panel below acknowl-
edged petitioners’ allegation that, “[a]s a practical matter,
given the interconnected nature of the nationwide pork in-
dustry, all or most hog farmers will be forced to comply with
California requirements.” 6 F. 4th, at 1028.
We have found such sweeping extraterritorial effects,
even if not considered as a per se invalidation, to be perti-
nent in applying Pike. In Edgar, we assessed the constitu-
tionality of an Illinois corporate takeover statute that au-
thorized the secretary of state to scrutinize tender offers,
even for transactions occurring wholly beyond the State’s
borders. As the majority explains, only a plurality of the
Court in Edgar concluded that the Illinois statute consti-
tuted a per se violation of the dormant Commerce Clause.
See ante, at 14, n. 1. But a majority in Edgar analyzed
those same extraterritorial effects under our approach in
Pike, concluding that the “nationwide reach” of Illinois’s law
constituted an “obvious burden . . . on interstate com-
merce.” 457 U. S., at 643. The Ninth Circuit did not con-
sider whether, by effectively requiring compliance by farm-
ers who do not even wish to ship their product into
California, Proposition 12 has a “nationwide reach” similar
to the regulation at issue in Edgar.
The complaint further alleges other harms that cannot
8 NATIONAL PORK PRODUCERS COUNCIL v. ROSS
Opinion of ROBERTS, C. J.
fairly be characterized as mere costs of compliance but that
the panel below seems to have treated as such. Because of
Proposition 12’s square footage requirements, farms will be
compelled to adopt group housing, which is likely to produce
“worse health outcome[s]” and “sprea[d] pathogens and dis-
ease.” App. to Pet. for Cert. 229a. Such housing changes
will also “upen[d] generations of animal husbandry, train-
ing, and knowledge.” Id., at 211a. And “[b]y preventing the
use of breeding stalls during the 30 to 40 day period be-
tween weaning and confirmation of pregnancy, Proposition
12 puts sows at greater risk of injury and stress during the
vulnerable stages of breeding and gestation.” Id., at 223a.
These consequential threats to animal welfare and industry
practice are difficult to quantify and are not susceptible to
categorization as mere costs of compliance.
Writing for a plurality of the Court, JUSTICE GORSUCH
relies on this Court’s decision in Exxon Corp. v. Governor of
Maryland, 437 U. S. 117 (1978), to conclude that petition-
ers’ complaint does not plead a substantial burden against
interstate commerce. See ante, at 21–25; see also ante, at 3
(opinion of SOTOMAYOR, J.) (also relying on Exxon). In
Exxon, petroleum producers sued after Maryland prohib-
ited their sale of retail gas within the State. 437 U. S., at
119. The Court concluded that “interstate commerce is not
subjected to an impermissible burden simply because an
otherwise valid regulation causes some business[es] to shift
from one interstate supplier to another.” Id., at 127. Fair
enough. But the complaint before us pleads facts going far
beyond the allegations in Exxon. The producers in Exxon
operated within Maryland and wished to continue doing so.
By contrast, petitioners here allege that Proposition 12 will
force compliance on farmers who do not wish to sell into the
California market, exacerbate health issues in the national
pig population, and undercut established operational prac-
tices. In my view, these allegations amount to economic
harms against “the interstate market”—not just “particular
Cite as: 598 U. S. ____ (2023) 9
Opinion of ROBERTS, C. J.
interstate firms,” ibid.—such that they constitute a sub-
stantial burden under Pike. At the very least, the harms
alleged by petitioners are categorically different from the
cost of installing $30 mudguards, Bibb, 359 U. S., at 525, or
of constructing a $200,000 cantaloupe packing facility, Pike,
397 U. S., at 140.
JUSTICE GORSUCH asks what separates my approach
from the per se extraterritoriality rule I reject. Ante, at 25.
It is the difference between mere cross-border effects and
broad impact requiring, in this case, compliance even by
producers who do not wish to sell in the regulated market.
And even then, we only invalidate a regulation if that bur-
den proves “clearly excessive in relation to the putative lo-
cal benefits.” Pike, 397 U. S., at 142. Adhering to that es-
tablished approach in this case would not convert the
inquiry into a per se rule against extraterritorial regula-
tion.
Rather than analyze petitioners’ alleged harms to the in-
terstate market on their own terms, the Ninth Circuit rea-
soned that the “crux” of the complaint is “the cost of compli-
ance with Proposition 12.” 6 F. 4th, at 1033. Such “cost
increases,” the panel below concluded, “do not qualify as a
substantial burden to interstate commerce.” Ibid. Those
statements ignore the industry-wide harms discussed
above.
The panel below itself recognized that petitioners “plau-
sibly alleged that Proposition 12 will have dramatic up-
stream effects and require pervasive changes to the pork
production industry nationwide.” Ibid. Yet it nevertheless
reduced the myriad harms detailed by petitioners in their
complaint to so-called “compliance costs” and wrote them
off as independently insufficient to state a claim under Pike.
Our precedents do not support such an approach. A major-
ity of the Court agrees that—were it possible to balance
benefits and burdens in this context—petitioners have
plausibly stated a substantial burden against interstate
10 NATIONAL PORK PRODUCERS COUNCIL v. ROSS
Opinion of ROBERTS, C. J.
commerce. See ante, at 2 (opinion of BARRETT, J.) (“The
complaint plausibly alleges that Proposition 12’s costs are
pervasive, burdensome, and will be felt primarily (but not
exclusively) outside California.”).
* * *
In my view, petitioners plausibly allege a substantial bur-
den against interstate commerce. I would therefore remand
the case for the Ninth Circuit to decide whether it is plau-
sible that the “burden . . . is clearly excessive in relation to
the putative local benefits.” Pike, 397 U. S., at 142.
Cite as: 598 U. S. ____ (2023) 1
KAVANAUGH, J., Opinion
concurring
of Kin part and, dissenting
AVANAUGH J. in part
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 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
2 NATIONAL PORK PRODUCERS COUNCIL v. ROSS
KAVANAUGH, J., Opinion
concurring
of Kin part and, dissenting
AVANAUGH J. in part
under Pike. I respectfully disagree with that conclusion for
the reasons well stated in THE CHIEF JUSTICE’s separate
opinion.1
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
——————
1 The Court also unanimously rejects plaintiffs’ separate claim under
Healy v. Beer Institute, 491 U. S. 324 (1989).
Cite as: 598 U. S. ____ (2023) 3
KAVANAUGH, J., Opinion
concurring
of Kin part and, dissenting
AVANAUGH J. in part
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
4 NATIONAL PORK PRODUCERS COUNCIL v. ROSS
KAVANAUGH, J., Opinion
concurring
of Kin part and, dissenting
AVANAUGH J. in part
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 9–13.2
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
——————
2 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.
Cite as: 598 U. S. ____ (2023) 5
KAVANAUGH, J., Opinion
concurring
of Kin part and, dissenting
AVANAUGH J. in part
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
6 NATIONAL PORK PRODUCERS COUNCIL v. ROSS
KAVANAUGH, J., Opinion
concurring
of Kin part and, dissenting
AVANAUGH J. in part
adopted in Philadelphia in 1787.3
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,
——————
3 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.
Cite as: 598 U. S. ____ (2023) 7
KAVANAUGH, J., Opinion
concurring
of Kin part and, dissenting
AVANAUGH J. in part
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
8 NATIONAL PORK PRODUCERS COUNCIL v. ROSS
KAVANAUGH, J., Opinion
concurring
of Kin part and, dissenting
AVANAUGH J. in part
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.