Important Issues Under the Radar – The Dormant Commerce Clause Edition

I don’t have much to say on the topic today but this crossed my screen earlier this week and seems to be of much more importance that much of the “Breaking News of the day” airtime filler that sucks all of the oxygen out of every news cycle. I will log it here for later reference:

From Prof. Michael McConnell (Stanford) on the Dormant Commerce Clause

National Pork Producers Council v. Ross may be one of the most consequential cases of the Term, and I don’t just mean for the price of pork chops. A few states, most importantly California, are such large markets that—if the Supreme Court does not intervene—they can impose their notions of proper standards of production on every other state in the Union, at little cost to themselves. Because nationwide producers often cannot segment their markets, producers will be forced to follow California rules for the whole country, or face the crippling consequence of exclusion from the California market.

Add to this the fact that these large states—California, Texas, New York—are also one-party states, whose views on social policy are often at one or another extreme. More moderate Americans in other states will be governed by laws they would not vote for, if they had a chance. This is contrary to the democratic postulates of our federal system. …

The California law at issue in National Pork Producers is a grave threat to our system of interstate federalism, where the people of each state have authority to govern conduct that takes place or produces effects within their own borders, but not elsewhere. … When states entered the Union, however, they gave up their power to treat other states as foreigners, in favor of a constitutionalized common market. States cannot punish conduct in other states, and they cannot bar entry or importation of people or products based on conduct that occurred in other states, except when the product will have a material effect within the state. …

This will not stop with pork. Once California is green-lighted to use its monopsony power to pressure businesses all over the country to comply with Californian social preferences, there will be no end to it. Most obviously, California will prohibit imports from companies that do not comply with its version of ESG regulations. Next up will be companies that exceed California carbon emission targets. Why not also companies in states that ban abortions? The banned products from such laws would not have any material effects in California; the laws simply export California regulatory preferences to people who have no way to vote on them.

And it will not just be California. No doubt Texas will get into the act. …

To be sure, the Commerce Clause is by its terms a grant of power to Congress and not a restriction on the power of the States. This has made textualist judges leery of recognizing its “negative” implications. But the original understanding was that the Commerce Power was exclusive in the federal government, subject only to the police power of the states to regulate with respect to their own citizens’ health, safety, and welfare. …

It [is] historically inaccurate to think that the Commerce Clause is merely a grant of regulatory power to Congress. The states lost their plenary power to bar commerce across their borders, retaining only the police power to protect their own internal health, welfare, and safety.

If we want a change in nationwide rules for pork production, it is Congress’s job to make them. One state cannot be permitted to rule them all. …

… If this law is upheld, we will soon see an economic war where big states will lord it over small states, destroying the constitutional common market the founders thought they created.

[Emphasis added]

Please go read the entire post in full context. (Any predictions on how the Justices will split on this?)

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