Source: Steve Dittmer
Kavanaugh's Dissent Outlines Pitfalls of SCOTUS' 5-4 Decision*
Below is nearly the entirety of Kavanaugh’s opinion.
Justice Kavanaugh
“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.
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.
For the delegates, therefore, “removing state trade barriers was a principal reason for the adoption of the Constitution.” In the state ratifying conventions, moreover, “fostering free trade among the States was prominently cited as a reason for ratification.”
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. 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. Moreover, according to various amici [briefs], some of the scientific literature suggests that California’s requirements could worsen animal health and welfare (American Association of Swine Veterinarians).
“…it is evident that absent California’s Proposition 12, relatively few pig farmers and pork producers in the United States would follow the practices that California now demands. Yet American pig farmers and pork producers have little choice but to comply with California’s regulatory dictates. It would be prohibitively expensive and practically all but impossible for pig farmers and pork producers to segregate individual pigs based on their ultimate marketplace destination in California or elsewhere. And California’s 13-percent share of the consumer pork market makes it economically infeasible for many pig farmers and pork producers to exit the California market.
California’s required changes to pig-farming and pork production practices throughout the United States will cost American farmers and pork producers hundreds of millions (if not billions) of dollars. And those costs for pig farmers and pork producers will be passed on, in many cases, to American consumers of pork via higher pork prices nationwide. The increased costs may also result in lower wages and reduced benefits (or layoffs) for the American workers who work on pig farms and in meatpacking plants.
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.
The majority opinion dismisses this case as not presenting a “weighty” issue. 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.
…each State may of course adopt health and safety regulations for products sold in that State. And each State may regulate as it sees fit with respect to farming, manufacturing, and production practices in that State.
Through Proposition 12, however, California has tried something quite different and unusual. It has attempted, in essence, to unilaterally impose its moral and policy preferences for pig farming and pork production on the rest of the Nation. It has sought to deny market access to out-of-state pork producers unless their farming and production practices in those other states comply with California’s dictates. The state has aggressively propounded a “California knows best” economic philosophy—where California in effect seeks to regulate pig farming and pork production in all of the United States. California’s approach undermines federalism and the authority of individual States by forcing individuals and businesses in one State to conduct their farming, manufacturing, and production practices in a manner required by the laws of a different State.
Notably, future state laws of this kind might not be confined to the pork industry. As the amici brief of 26 states points out, what if a state law prohibits the sale of fruit picked by noncitizens who are unlawfully in the country? 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)?
If upheld against all constitutional challenges, California’s novel and far-reaching regulation could provide a blueprint for other states. California’s law thus may foreshadow a new era where states shutter their markets to goods produced in a way that offends their moral or policy preferences—and in doing so, effectively force other states to regulate in accordance with those idiosyncratic state demands. That is not the Constitution the Framers adopted in Philadelphia in 1787.
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.” This Court has limited that Clause to imports from foreign countries. 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.
…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.”
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. … I express no view… 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.” That Clause prevents States from “adopting any policy of hostility to the public Acts” of another State. A state’s effort to regulate farming, manufacturing, and production practices in another State… could in some circumstances raise questions under that Clause.
[This] Clause is the more natural source for limitations on state extraterritorial powers because that clause at its core is concerned with extraterritoriality.”
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. If so, the Full Faith and Credit Clause might preclude California from enacting conflicting regulations on Ohio pig farmers. …but the question deserves further examination in a future case.
It appears that properly pled dormant Commerce Clause challenges under [precedent] to laws like California’s Proposition 12 (or even to Proposition 12 itself) could succeed in the future. 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.
* 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, SOTOMAYOR, and KAGAN, JJ., joined. SOTOMAYOR, J., filed an opinion concurring 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 dissenting in part.