top of page

Sen Vol 20#25-SCOTUS on California’s Prop 12 and the Pork Industry - Part II

Some Concurrence and the Dissent Has Their Say


Source: Steve Dittmer | AFF Sentinel


Originally sent to subscribers 05/18/23

Edi. Note: Justice Gorsuch wrote the majority opinion, from which we excerpted bullet points regarding the case last time. This time, we include excerpts from the opinion of concurring, dissenting or both from other Justices, with more to come.


We neglected last time to list the votes cast in the case. For upholding the Ninth Circuit’s judgement: Gorsuch, Thomas, Sotomayor, Kagan and Barrett. The dissenting Justices: Roberts, Alito, Kavanaugh and Jackson. It’s more complicated than that, as referenced in the footnote.*


Justice Sotomayor

I vote to affirm the judgment because petitioners fail to allege a substantial burden on interstate commerce as required by [precedent]…“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.” 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.”


[Precedent’s] balancing and tailoring principles are most frequently deployed to detect the presence or absence of latent economic protectionism. Warding off state discrimination against interstate commerce is at the heart of our dormant Commerce Clause jurisprudence.


[This] complaint fails to allege a substantial burden on interstate commerce.

Justice Barrett, concurring in part.

Under our dormant Commerce Clause jurisprudence, one State may not discriminate against another’s producers or consumers. 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.

I agree with Justice Gorsuch that the benefits and burdens of Proposition 12 are incommensurable. California’s interest in eliminating allegedly inhumane products 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.


I disagree that petitioners have failed to allege a substantial burden on interstate commerce. The complaint plausibly alleges that Proposition 12’s costs are pervasive, burdensome, and will be felt primarily (but not exclusively) outside California.


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…


Chief Justice Roberts

The Ninth Circuit misapplied our existing [precedent] jurisprudence in evaluating petitioners’ allegations. I would find that petitioners’ have plausibly alleged a substantial burden against interstate commerce, and would therefore vacate the judgment and remand the case for the court below to decide whether petitioners have stated a claim…


[There is] the basic concern of our Commerce Clause jurisprudence that there be “free private trade in the national marketplace.”


“Our system, fostered by the Commerce Clause, is that every farmer and every craftsman shall be encouraged to produce by the certainty that he will have free access to every market in the Nation, that no home embargoes will withhold his exports, and no foreign state will by customs duties or regulations exclude them.”


[Referring to balancing competing interests is impossible]… but sometimes there is no avoiding the need to weigh seemingly incommensurable values.


…in my view the court below erred in how it analyzed petitioners’ allegations… 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.” The panel then dismissed petitioners’ claim by concluding that the complaint alleged only an increase in compliance costs due to Proposition 12.


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. Petitioners identify broader, market-wide consequences of compliance—economic harms that our precedents have recognized can amount to a burden on interstate commerce.


I would therefore find that petitioners have stated a substantial burden against interstate commerce, vacate the judgment [of the Ninth], and remand this case for the Ninth Circuit to consider whether petitioners have plausibly claimed that the burden alleged outweighs any “putative local interests…”

The Court [has] found both compliance costs and consequential market harms cognizable in determining whether the law at issue impermissibly burdened interstate commerce.

As in our prior cases, petitioners here allege both compliance costs and consequential harms to the interstate market. With respect to compliance costs, petitioners allege that Proposition 12 demands significant capital expenditures for farmers who wish to sell into California. “Producers . . . will need to spend” between $290 and $348 million “of additional capital in order to reconstruct their sow housing and overcome the productivity loss that Proposition 12 imposes.” All told, compliance will “increase production costs per pig by over $13 dollars per head, a 9.2% cost increase at the farm level.”

Separate and apart from those costs, petitioners assert harms to the interstate market itself. The complaint alleges 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.” Proposition 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 producers as far flung as Indiana and North Carolina, whether or not they sell in California.

The panel below [Ninth Circuit] acknowledged petitioners’ allegation that, “[a]s a practical matter, given the interconnected nature of the nationwide pork industry, all or most hog farmers will be forced to comply with California requirements.” We have found such sweeping extraterritorial effects, even if not considered as a per se invalidation, to be pertinent [in the past]. The Ninth Circuit did not consider whether, by effectively requiring compliance by farmers who do not even wish to ship their product into California, Proposition 12 has a “nationwide reach…”

…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 practices. …these allegations amount to economic harms against “the interstate market”—not just “particular interstate firms,”



The [Ninth] itself recognized that petitioners “plausibly alleged that Proposition 12 will have dramatic upstream effects and require pervasive changes to the pork production industry nationwide.” 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… Our precedents do not support such an approach.


In my view, petitioners plausibly allege a substantial burden against interstate commerce. I would therefore remand the case for the Ninth Circuit to decide whether it is plausible that the “burden . . . is clearly excessive in relation to the putative local benefits.”


Next time: More opinions from the dissenting Justices.


* 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.


Recent Posts

See All

Kommentare


bottom of page