Constitutional Law: A Review of National Pork Producers Council v. Ross (2023) and the Commerce Clause
Written by Yaquelin Hinojosa-Fuentes, Yulin Chao, Munpreet Kaur, Rowen Hamilton, Cole Frey
Edited by Rowen Hamilton and Anna Ramesh
Background and Overview
The California legislature set strict regulations that forbade the in-state sale of whole pork that comes from breeding pigs or their offspring if they are confined in a cruel manner. As defined in Proposition 12, the confinement of the animals is cruel if it limits the animal's movements to the extent that the animal cannot lay down, stand up, extend its limbs, or turn freely. As a result of Proposition 12, the National Pork Producers Council and the American Farm Bureau Federation filed a lawsuit on behalf of their pig farming members, arguing that Proposition 12 violates the Constitution because it burdens interstate commerce. Since California imports nearly all the pork it consumes, the cost of complying with Proposition 12 would be paid by California and out-of-state producers (National Pork Producers Council v. Ross 2023).
The Court reviewed whether Proposition 12 violates the dormant component of the Constitution's Commerce Clause. The "Dormant" Commerce Clause refers to the requirement that states may not make rules that unfairly interfere with interstate commerce even if Congress has not passed specific laws burdening the practice (Congress.gov). In this case, the Court considered if Proposition 12 places too many limits on out-of-state businesses' ability to sell products in California. The plaintiffs argued that this law hurts farmers in other states by forcing them to follow California's rules, raising costs and changing how these out-of-state businesses operate. The Court found that Proposition 12 applies both equally to in and out of state producers, so it doesn't discriminate against out-of-state businesses on purpose or substantially in practice (National League of Cities). Furthermore, the Supreme Court rejected a broad interpretation of the Dormant Commerce Clause and confirmed that California's law didn't violate the Constitution (National Pork Producers Council v. Ross 2023; National League of Cities).
Precedent
The ideological split between Justices is strangely absent from this case. Five separate opinions were written, 3 concurrent and 2 dissenting opinions. Below are a few cases cited in the majority opinion:
Oklahoma Tax Comm'n v. Jefferson Lines, Inc. (1995): found that certain state economic regulations were unenforceable—even with Congressional silence on these regulations—due to the Commerce Clause.
Gibbons v. Ogden (1824) and Cooley v. Board of Wardens of Port of Philadelphia ex rel. Soc. for Relief of Distressed Pilots (1851): (earlier precedent) argued that states had a right to regulate economic activity as a reserved power in the constitution, even if it could have limited effects on interstate commerce.
Camps Newfound/Owatonna, Inc. v. Town of Harrison (1997): states have the authority to exclude the distribution of foreign goods within their own state if these goods are deemed harmful to its citizenry.
Department of Revenue of Ky. v. Davis (2008), New Energy Co. of Ind. v. Limbach (1988), Tennessee Wine and Spirits Retailers Assn. v. Thomas (2019), and Northwest Airlines, Inc. v. County of Kent (1994): suggests that the Commerce Clause is intended to reduce protectionist policies among states that promote their own domestic industry at the burden/expense of other states.
Tyler Pipe Industries, Inc. v. Washington State Dept. of Revenue (1987): suggests an alternative vision of antiprotectionism that argues that the Privileges and Immunities Clause is intended to reduce protectionist policies among states that promote their own domestic industry at the burden/expense of other states.
American Trucking Assns., Inc. v. Michigan Pub. Serv. Comm'n (2005): suggests an alternative vision of antiprotectionism that argues that the structure of the Constitution is intended to reduce protectionist policies among states that promote their own domestic industry at the burden/expense of other states.
Baldwin v. G. A. F. Seelig, Inc. (1935), Dean Milk Co. v. Madison (1951), and West Lynn Creamery, Inc. v. Healy (1994): cited to explain that price controls—notably those that artificially raised the price of goods from foreign sellers to assist domestic sellers—were not the result of an "almost per se" rule. Instead, it was unconstitutional because the law was plainly discriminatory against foreign sellers, making the laws protectionist.
Brown-Forman Distillers Corp. v. New York State Liquor Authority (1986), Healy v. Beer Institute (1989), and C & A Carbone, Inc. v. Clarkstown (1994): cited to explain that price affirmations—notably those that required that goods sold out-of-state are being sold at the same price as in-state goods—were not the result of an "almost per se" rule. Instead, it was unconstitutional because the law was designed to discourage pricing schemes that made selling to foreign markets easier, making the laws protectionist.
Pike v. Bruce Church, Inc. (1970): established that interstate commerce should not be excessively burdensome to surrounding states in comparison to the benefits a state seeks from a domestic policy change, providing a test that allowed future rulings to assess the level of harm that would be considered excessively burdensome.
Minnesota v. Clover Leaf Creamery Co. (1981): argued that the standard in Pike is not applicable if a state's law does not inherently or reasonably benefit in-state actors while burdening out-of-state actors.
Exxon Corp. v. Governor of Maryland (1978): argued that the standard in Pike is not applicable if a state's law benefits/prefers specific out-of-state actors while burdening other ones.
Bendix Autolite Corp. v. Midwesco Enterprises, Inc. (1988), Western Union Telegraph Co. v. James (1896), Moorman Mfg. Co. v. Bair (1978), New State Ice Co. v. Liebmann (1932), and Lochner v. New York (1905): cited to express that value judgements are difficult and impractical for the Supreme Court to make (ie. liberty vs. security, morality vs. practicality, ect.), so they should be left to the state legislatures.
Bell Atlantic Corp. v. Twombly (2007): clarifies that speculative harms—rather than substantive harms—do not meet the harm standard set in Pike.
Shelby County v. Holder (2013): cited to argue that in-state policy—regardless of how it influences out-of-state firms' operational strategy—does not violate the dormant Commerce Clause. This is because big states are entitled to domestic regulation without the constant pressure of considering how smaller states will react by virtue of their sizes alone; this would treat their constitutionally reserved powers differently from one another.
Effects of National Pork Producers Council v. Ross
The decision of the Supreme Court sides with California's Proportion 12 and affirms the decision made by the U.S. Court of Appeals for the Ninth Circuit. The Supreme Court clarifies that a State violates the commerce clause when they seek to "build up… domestic commerce" by burdening out-of-state industry and businesses with regulation (National Pork Producers Council v. Ross 2023). The Supreme Court also clarifies that it is up to the court to assess the potential burden of the state law.
This grants California the ability to increase its regulation of its agricultural industries, but it expands the possibilities for the regulatory power of the state with its industries and businesses as long as the intention of the law is not discriminatory to other states. Justice Gorsuch's concurring opinion emphasized that the dormant Commerce Clause should be applied narrowly because it lacks textual basis in the Constitution. The Supreme Court's decision significantly impacted division of state and federal power by allowing individual states to regulate products sold within their borders even when those regulations have substantial extraterritorial effects.
California—which consumes 13% of the nation's pork but produces very little—can set animal welfare standards that may reshape production practices across the pork industry. The Court rejected pork producers' arguments that Proposition 12 would force nationwide operational restructuring, holding that indirect economic burdens don't constitute Commerce Clause violations when states regulate in-state markets without discriminatory intent.
Terms and Definitions
"Almost per se" rule: a "per se" (by itself in Latin) rule indicates that certain actions or agreements are automatically considered illegal or invalid without the need for further examination of specific circumstances because they are inherently wrong/harmful. In this case, an "almost per se" rule suggests that certain economic activities are inherently illegal because they substantially burden interstate commerce even if they do not intend to burden these states.
Dormant/Dormant Commerce Clause: derived from the Commerce Clause in Article I, Section 8, Clause 3 of the U.S. Constitution: "[The Congress shall have Power . . . ] To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes; . . ." (Congress.gov). 'Dormant' indicates that the federal government's power over commerce is present—even if it's not being actively exercised—because any local protectionist policies could destabilize national markets.
Reserved Powers: powers that the Constitution does not delegate to the federal government and are given to the states through the 10th Amendment.
Plaintiff: In a civil matter, the party who initiates a lawsuit against the defendant.
Privileges and Immunities Clause: Article IV, Section 2: "the citizens of each state shall be entitled to all privileges and immunities of citizens in the several states." This clause protects the rights of US citizens as they travel between states that usually extends to fundamental rights rather than commercial activity, but this distinction is debated.
Protectionism: protectionism, policy of protecting domestic industries through tariffs, subsidies, import quotas, or other restrictions on foreign competitors.
Works Cited
"ArtI.S8.C3.7.1 Overview of Dormant Commerce Clause." Congress.gov. Accessed April 23, 2025.
Britannica, T. Editors of Encyclopaedia. "protectionism." Encyclopedia Britannica, May 5, 2025.
https://www.britannica.com/money/protectionism.
Legal Information Institute. "per se" Wex Legal Dictionary. Accessed May 8, 2025.
Legal Information Institute. "Plaintiff." Wex Legal Dictionary. Accessed April 10, 2025.
Legal Information Institute. "Privileges and Immunities Clause" Wex Legal Dictionary. Accessed May 8, 2025.
"National Pork Producers Council v. Ross." Oyez. Accessed April 23, 2025.
National Pork Producers Council v. Ross. 2023. 598 (United States Supreme Court, May 11).
"Supreme Court Decides Important Dormant Commerce Clause Case." National League of Cities, June 15,
2023. Accessed May 8, 2025.
"The Tenth Amendment - Reserving Power for the States." FindLaw. Accessed May 9, 2025.