Term Talk (2022-2023): National Pork Producers Council v. Ross

[Music] welcome to term talk I'm Hamid Khan judicial education attorney at the Federal Judicial Center in each episode we discuss Supreme Court decisions likely to impact the lower courts the most joining me are irman shiminski Dean and Jesse H choer distinguished professor of law at the University of California Berkeley School of Law and Michael McConnell former judge of the United States court of appeals for the 10 circuit Richard and Francis mallerie professor of Law and director of the Constitutional Law Center at Stanford University thank you both for joining us today we are talking about the dormant Commerce Clause in the context of national pork producers versus Ross win can you give us an overview of the dormant Commerce Clause and how it applies to the facts of this case the dormant Commerce Clause the principle that a state local law is unconstitutional if it puts an excessive burden on interstate commerce the key question of the dormant Commerce Clause is whether the state or local law is discriminating against out of stators the state or local law is discriminating against out of stators and putting a burden on interstate commerce there's a strong presumption against the law the Supreme Court has said no State can use its laws to purposely discriminate against out ofate economic interests it's thought that one of the key Inspirations for the Constitution was keeping States from adopting protectionist legislation on the other hand if a state or local law does not discriminate against out stators but it puts a burden on interstate commerce it still can be challenged with d Commerce Clause then a balancing test is used it comes from AE Pike versus Bruce Church where the Supreme Court said the law puts a burden on state commas but is IND discriminatory it's unconstitutional if the burdens under State Commerce outweigh the benefits of the law well National pork produced R Us involves an initiative passed by California voters proposition 12 it limits what pork can be sold in the state of California and it says that the pork sold in California has to come from pigs that humanely treated it prescribes the specific conditions like pen sizes in order for the pork to be sold in the state so the issue is does the California law violate the dman Commerce Clause the pork producers want to argue that the law is unconstitutional per se they invoke what they call the extr territorial extr territoriality Doctrine it says that a state cannot impose regulations on business practices in other states and they say that's exactly what's going on here most pork over 90% of it comes from producers outside of California and so California is regulating them the pork producers also argue that apart from the extr territoriality principle this is a law that puts a substantial burden on interstate commerce California's response is that it's not discriminating at all the law regulates what can be sold in California and the same rules apply whether it's a California pork producer or an Iowa Pork producer The District Court granted the motion to dismiss the ninth circuit affirmed in the Supreme Court in a five to four decision but without a majority opinion also upheld the California law Michael can you explain the friction points in the Court's decision uh yes this is a very uh divided court and it's not clear what the real holding is so there was a plurality opinion of three justices written by Neil Gorsuch uh uh and joined significantly by Amy Cony Barrett and the holding of this the theory of this opinion uh is that the Supreme Court's bike Pike balancing test uh does not apply when the things to be balanced are incommensurable so in this case uh there's a balance of economic cost against a the the desire to improve uh the Humane treatment of animals those things there's no metric uh that applies to those two things so uh these justices said and we simply cannot apply uh the the pike uh Church balancing test in those circumstances uh then there were four denters who said yes we can apply uh and the state law violates Pike and then there were two other justices namely uh Elena Kagan and Sonia Soto myor who said yes we can apply Pike and the State wins uh under Pike so that means uh that there seems to be a clear majority on the court that the pike balancing test still surviv IES by the way that's a huge surprise to me I think the pike balancing test is highly uh inconsistent with the Court's um more recent uh approach to to constitutional jurist Prudence but in any event Pike uh survives and then to make things even more confusing uh justice Barrett who joined uh the plurality opinion on the conceptual point about income insurability said that if there if she were to apply Pike balancing uh that she would agree with the denters and not with uh Kagan and Sodom myor well what does that mean we've got a clear Supreme Court majority that Pike applies and there's also a clear five Justice majority that if Pike applies uh the State loses that is Barrett plus the four uh the centers this produces what Scholars have long called a voting Paradox uh where the out come of a case has a majority in this case the plurality plus Sodor and and Kagan but no one theory of the case actually commands a majority Michael what are the takeaways from the for the local courts to consider well I think F first of all the fact that Pike balancing is uh is Alive and Well is a very important significant and to my mind surprising uh development that is not uh it has never been overruled but it has not been applied uh in uh in recent cases and I think largely looked like it was on the dust bin of history but it's back so undoubtedly we'll see lots more uh uh cases uh of this sort but another things is what the court really didn't do is it didn't grapple with the uh extra territoriality argument that irn mentioned that Pike uh balancing is really about so-called undue burdens on interstate commerce uh but the uh real problem with the California law was not that the real problem was that California is attempting through using its own uh Market power attempting to require uh pork producers all over the country to comply with California law whereas in our usual system of federalism each law gets to each state gets to govern activities within the state and not elsewhere unless there's some actual impacts on the people within California but since the purpose of this law is to provide more Humane treatment for pigs uh uh the pigs are not in California essentially what California is doing is using its Market power to protect pigs in North Carolina and uh that seems to be an extr territoriality problem which the Supreme Court basically ignored disagree with Michael on this I think Michael does an excellent job of presenting the argument from the pork producers but all nine justices reject the extr territorial argument for Justice's descent saying under Pike balancing that allow the case to go forward I think that's one of the most important things about this case because if the Supreme Court had accepted the extr territoriality principle then it would be difficult for California to set fuel efficiency standards for cars because most gas is produced outside of California it would be very difficult for states to impose regulations what the Supreme Court accepted is California is regulating what pork is sold in California and that's something that a state can do I think the case is also significant because it reaffirms the basic framework for dormant Commerce Clause analysis the starting point has to be for courts does the state or local law discriminate against that stators if it discriminates then there's a strong presumption against the law here the court said and all nine just agreed the California law was not discriminatory if it's not discriminatory then it's Pike balancing and I'm not surprised that the court reaffirmed Pike balancing in fact six of the nine justices here used and reaffirmed the pike balancing test thank you both for joining us today [Music]

Channel: United States Courts

Views: 809

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Length: 10min 57sec (657 seconds)

Published: Thu Oct 12 2023