National Pork Producers Council v. Ross

PRELIMINARY PRINT
Volume 598 U. S. Part 2
Pages 356–410
OFFICIAL REPORTS
OF
THE SUPREME COURT
May 11, 2023
Page Proof Pending Publication
REBECCA A. WOMELDORF
reporter of decisions
NOTICE: This preliminary print is subject to formal revision before
the bound volume is published. Users are requested to notify the Reporter
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356 OCTOBER TERM, 2022
Syllabus
NATIONAL PORK PRODUCERS COUNCIL et al. v.
ROSS, SECRETARY OF THE CALIFORNIA DEPART-
MENT OF FOOD AND AGRICULTURE, et al.
certiorari to the united states court of appeals for
the ninth circuit
No. 21–468. Argued October 11, 2022—Decided May 11, 2023
This case involves a challenge to a California law known as Proposition
12, which as relevant here forbids the in-state sale of whole pork meat
that comes from breeding pigs (or their immediate offspring) that are
“confined in a cruel manner. ” Cal. Health & Safety Code Ann.
§ 25990(b)(2). Confnement is “cruel” if it prevents a pig from “lying
down, standing up, fully extending [its] limbs, or turning around freely.”
§ 25991(e)(1). Prior to the vote on Proposition 12, proponents suggested
the law would beneft animal welfare and consumer health, and oppo-
nents claimed that existing farming practices did better than Proposi-
tion 12 protecting animal welfare (for example, by preventing pig-on-pig
aggression) and ensuring consumer health (by avoiding contamination).
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Shortly after Proposition 12's adoption, two organizations—the National
Pork Producers Council and the American Farm Bureau Federation
(petitioners)—fled this lawsuit on behalf of their members who raise
and process pigs alleging that Proposition 12 violates the U. S. Constitu-
tion by impermissibly burdening interstate commerce. Petitioners es-
timated that the cost of compliance with Proposition 12 will increase
production costs and will fall on both California and out-of-state produc-
ers. But because California imports almost all the pork it consumes,
most of Proposition 12's compliance costs will be borne by out-of-state
frms. The district court held that petitioners' complaint failed to state
a claim as a matter of law and dismissed the case. The Ninth Circuit
affrmed.
Held: The judgment of the Ninth Circuit is affrmed.
6 F. 4th 1021, affrmed.
Justice Gorsuch delivered the opinion of the Court, except as to
Parts IV–B, IV–C, and IV–D, rejecting petitioners' theories that would
place Proposition 12 in violation of the dormant Commerce Clause even
though petitioners do not allege the law purposefully discriminates
against out-of-state economic interests. Pp. 368–380, 389–391.
(a) The Constitution vests Congress with the power to “regulate
Commerce . . . among the several States.” Art. I, § 8, cl. 3. Although
Cite as: 598 U. S. 356 (2023) 357
Syllabus
Congress may seek to exercise this power to regulate the interstate
trade of pork, and many pork producers have urged Congress to do so,
Congress has yet to adopt any statute that might displace Proposition
12 or laws regulating pork production in other States. Petitioners' liti-
gation theory thus rests on the dormant Commerce Clause theory, pur-
suant to which the Commerce Clause not only vests Congress with the
power to regulate interstate trade, but also “contain[s] a further, nega-
tive command,” one effectively forbidding the enforcement of “certain
state [economic regulations] even when Congress has failed to legislate
on the subject.” Oklahoma Tax Comm'n v. Jefferson Lines, Inc., 514
U. S. 175, 179. This Court has held that state laws offend this dormant
aspect of the Commerce Clause when they seek to “build up . . . domestic
commerce” through “burdens upon the industry and business of other
States.” Guy v. Baltimore, 100 U. S. 434, 443. At the same time,
though, the Court has reiterated that, absent purposeful discrimination,
“a State may exclude from its territory, or prohibit the sale therein of
any articles which, in its judgment, fairly exercised, are prejudicial to”
the interests of its citizens. Ibid.The antidiscrimination principle lies at the “very core” of the Court's
dormant Commerce Clause jurisprudence. Camps Newfound/Owa-
tonna, Inc. v. Town of Harrison, 520 U. S. 564, 581. This Court has
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said that the Commerce Clause prohibits the enforcement of state laws
“driven by . . . ``economic protectionism—that is, regulatory measures
designed to beneft in-state economic interests by burdening out-of-state
competitors.' ” Department of Revenue of Ky. v. Davis, 553 U. S. 328,
337–338 (quoting New Energy Co. of Ind. v. Limbach, 486 U. S. 269, 273–
274). Petitioners here disavow any discrimination-based claim, con-
ceding that Proposition 12 imposes the same burdens on in-state pork
producers that it imposes on out-of-state pork producers. Pp. 368–371.
(b) Given petitioners' concession that Proposition 12 does not impli-
cate the antidiscrimination principle, petitioners frst invoke what they
call the “extraterritoriality doctrine.” They contend that the Court's
dormant Commerce Clause cases suggest an additional and “almost
per se” rule forbidding enforcement of state laws that have the “practi-
cal effect of controlling commerce outside the State,” even when those
laws do not purposely discriminate against out-of-state interests. Peti-
tioners further insist that Proposition 12 offends this “almost per se”
rule because the law will impose substantial new costs on out-of-state
pork producers who wish to sell their products in California. Petition-
ers contend the rule they propose follows ineluctably from three cases:
Healy v. Beer Institute, 491 U. S. 324; Brown-Forman Distillers Corp.
v. New York State Liquor Authority, 476 U. S. 573; and Baldwin v.
G. A. F. Seelig, Inc., 294 U. S. 511. But a close look at those cases
358 NATIONAL PORK PRODUCERS COUNCIL v. ROSS
Syllabus
reveals that each typifes the familiar concern with preventing purpose-
ful discrimination against out-of-state economic interests. In Baldwin,
a New York law that barred out-of-state dairy farmers from selling their
milk in the State for less than the minimum price New York law guaran-
teed in-state producers “plainly discriminate[d]” against out-of-staters
by “erecting an economic barrier protecting a major local industry
against competition from without the State.” Dean Milk Co. v. Madi-
son, 340 U. S. 349, 354 (discussing Baldwin). In Brown-Forman, a New
York law that required liquor distillers to affrm that their in-state
prices were no higher than their out-of-state prices impermissibly
sought to force out-of-state distillers to “surrender” whatever cost ad-
vantages they enjoyed against their in-state rivals, which amounted to
economic protectionism. 476 U. S., at 580.
The Court reached a similar conclusion in Healy, which involved a
Connecticut law that required out-of-state beer merchants to affrm that
their in-state prices were no higher than those they charged in neigh-
boring States. 491 U. S., at 328–330. As the Court later explained,
“[t]he essential vice in laws” like Connecticut's is that they “hoard” com-
merce “for the beneft of ” in-state merchants and discourage consumers
from crossing state lines to make their purchases from nearby out-of-
state vendors. C & A Carbone, Inc. v. Clarkstown, 511 U. S. 383,
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391–392.
Petitioners insist that Baldwin, Brown-Forman, and Healy taken to-
gether suggest an “almost per se” rule against state laws with “extrater-
ritorial effects.” While petitioners point to language in these cases
pertaining to the “practical effect” of the challenged laws on out-of-state
commerce and prices, “the language of an opinion is not always to be
parsed as though we were dealing with language of a statute.” Reiter
v. Sonotone Corp., 442 U. S. 330, 341. The language highlighted by peti-
tioners in Baldwin, Brown-Forman, and Healy appeared in a particular
context and did particular work. A close look at those cases reveals
nothing like the “almost per se” rule against laws that have the “practi-
cal effect” of “controlling” extraterritorial commerce that petitioners
posit, and indeed petitioners' reading would cast a shadow over laws
long understood to represent valid exercises of the States' constitution-
ally reserved powers. Baldwin, Brown-Forman, and Healy did not
mean to do so much. In rejecting petitioners' “almost per se” theory
the Court does not mean to trivialize the role territory and sovereign
boundaries play in the federal system; the Constitution takes great care
to provide rules for fxing and changing state borders. Art. IV, § 3,
cl. 1. Courts must sometimes referee disputes about where one State's
authority ends and another's begins—both inside and outside the com-
mercial context. Indeed, the antidiscrimination principle found in the
Court's dormant Commerce Clause cases may well represent one more
Cite as: 598 U. S. 356 (2023) 359
Syllabus
effort to mediate competing claims of sovereign authority under our hori-
zontal separation of powers. But none of this means, as petitioners sup-
pose, that any question about the ability of a State to project its power
extraterritorially must yield to an “almost per se” rule under the dor-
mant Commerce Clause. This Court has never before claimed so much
“ground for judicial supremacy under the banner of the dormant Com-
merce Clause.” United Haulers Assn., Inc. v. Oneida-Herkimer Solid
Waste Management Authority, 550 U. S. 330, 346–347. Pp. 371–376.
(c) Petitioners next point to Pike v. Bruce Church, Inc., 397 U. S. 137,
which they assert requires a court to at least assess “ ``the burden im-
posed on interstate commerce' ” by a state law and prevent its enforce-
ment if the law's burdens are “ ``clearly excessive in relation to the puta-
tive local benefts.' ” Brief for Petitioners 44. Petitioners provide a
litany of reasons why they believe the benefts Proposition 12 secures
for Californians do not outweigh the costs it imposes on out-of-state
economic interests.
Petitioners overstate the extent to which Pike and its progeny depart
from the antidiscrimination rule that lies at the core of the Court's dor-
mant Commerce Clause jurisprudence. As this Court has previously
explained, “no clear line” separates the Pike line of cases from core
antidiscrimination precedents. General Motors Corp. v. Tracy, 519
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U. S. 278, 298, n. 12. If some cases focus on whether a state law dis-
criminates on its face, the Pike line serves as an important reminder
that a law's practical effects may also disclose the presence of a discrimi-
natory purpose. Pike itself concerned an Arizona order requiring can-
taloupes grown in state to be processed and packed in state. 397 U. S.,
at 138–140. The Court held that Arizona's order violated the dormant
Commerce Clause, stressing that even if that order could be fairly char-
acterized as facially neutral, it “requir[ed] business operations to be per-
formed in [state] that could more effciently be performed elsewhere.”
Id., at 145. The “practical effect[s]” of the order in operation thus re-
vealed a discriminatory purpose—an effort to insulate in-state process-
ing and packaging businesses from out-of-state competition. Id., at 140.
While this Court has left the “courtroom door open” to challenges prem-
ised on “even nondiscriminatory burdens,” Davis, 553 U. S., at 353, and
while “a small number of our cases have invalidated state laws . . . that
appear to have been genuinely nondiscriminatory,” Tracy, 519 U. S., at
298, n. 12, petitioners' claim about Proposition 12 falls well outside
Pike's heartland. Pp. 377–380.
(d) The Framers equipped Congress with considerable power to regu-
late interstate commerce and preempt contrary state laws. See U. S.
Const., Art. I, § 8, cl. 3; Art. IV, § 2. While this Court has inferred an
additional judicially enforceable rule against certain state laws adopted
even against the backdrop of congressional silence, the Court's cases
360 NATIONAL PORK PRODUCERS COUNCIL v. ROSS
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also suggest extreme caution is warranted in its exercise. Disavowing
reliance on this Court's core dormant Commerce Clause teachings fo-
cused on discriminatory state legislation, petitioners invite the Court to
endorse new theories of implied judicial power. They would have the
Court recognize an “almost per se” rule against the enforcement of state
laws that have “extraterritorial effects”—even though it has long recog-
nized that virtually all state laws create ripple effects beyond their bor-
ders. Alternatively, they would have the Court prevent a State from
regulating the sale of an ordinary consumer good within its own borders
on nondiscriminatory terms—even though the Pike line of cases they
invoke has never before yielded such a result. Like the courts that
faced this case below, this Court declines both incautious invitations.
Pp. 389–391.
Justice Gorsuch, joined by Justice Thomas and Justice Bar-
rett, concluded in Part IV–B that, accepting petitioners' allegations,
the Pike balancing task that they propose in this case is one no court
is equipped to undertake. Some out-of-state producers who choose to
comply with Proposition 12 may incur new costs, while the law serves
moral and health interests of some magnitude for in-state residents. In
a functioning democracy, those sorts of policy choices—balancing com-
peting, incommensurable goods—belong to the people and their elected
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representatives. Pp. 380–383.
Justice Gorsuch, joined by Justice Thomas, Justice Sotomayor,
and Justice Kagan, concluded in Part IV–C that the allegations in the
complaint were insuffcient as a matter of law to demonstrate a substan-
tial burden on interstate commerce, a showing Pike requires before a
court may assess the law's competing benefts or weigh the two sides
against each other, and that the facts pleaded merely allege harm to
some producers' favored “methods of operation” which the Court found
insuffcient to state a claim in Exxon Corp. v. Governor of Maryland,
437 U. S. 117, 127. Pp. 383–387.
Justice Gorsuch, joined by Justice Thomas and Justice Bar-
rett, concluded in Part IV–D that petitioners have not asked the Court
to treat putative harms to out-of-state animal welfare or other noneco-
nomic interests as freestanding harms cognizable under the dormant
Commerce Clause, and in any event that the Court's decisions authoriz-
ing claims alleging “burdens on commerce,” Davis, 553 U. S., at 353, do
not provide judges “a roving license” to reassess the wisdom of state
legislation in light of any conceivable out-of-state interest, economic or
otherwise, United Haulers, 550 U. S., at 343. Pp. 387–389.
Justice Sotomayor, joined by Justice Kagan, concluded that the
judgment should be affrmed, not because courts are incapable of balanc-
ing economic burdens against noneconomic benefts as Pike requires or
Cite as: 598 U. S. 356 (2023) 361
Syllabus
because of any other fundamental reworking of that doctrine, but be-
cause petitioners fail to plausibly allege a substantial burden on inter-
state commerce as required by Pike. Pp. 391–393.
Justice Barrett concluded that the judgment should be affrmed
because Pike balancing requires both the benefts and burdens of a
state law to be judicially cognizable and comparable, see Department of
Revenue of Ky. v. Davis, 553 U. S. 328, 354–355, but the benefts and
burdens of Proposition 12 are incommensurable; that said, the complaint
plausibly alleges a substantial burden on interstate commerce because
Proposition 12's costs are pervasive, burdensome, and will be felt pri-
marily (but not exclusively) outside California. Pp. 393–394.
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, Soto-
mayor, and Kagan, JJ., joined. Sotomayor, J., fled an opinion concur-
ring in part, in which Kagan, J., joined, post, p. 391. Barrett, J., fled an
opinion concurring in part, post, p. 393. Roberts, C. J., fled an opinion
concurring in part and dissenting in part, in which Alito, Kavanaugh,
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and Jackson, JJ., joined, post, p. 394. Kavanaugh, J., fled an opinion
concurring in part and dissenting in part, post, p. 403.
Timothy S. Bishop argued the cause for petitioners.
With him on the briefs were Brett E. Legner, Avi M. Kupfer,
Dan Himmelfarb, Michael C. Formica, Ellen Steen, and
Travis Cushman.
Deputy Solicitor General Kneedler argued the cause for
the United States as amicus curiae urging reversal. With
him on the brief were Solicitor General Prelogar, Michael
R. Huston, Michael S. Raab, and Thomas Pulham.
Michael J. Mongan, Solicitor General of California, argued
the cause for the state respondents. With him on the brief
were Rob Bonta, Attorney General of California, Thomas
S. Patterson, Senior Assistant Attorney General, Samuel T.
Harbourt, Deputy Solicitor General, R. Matthew Wise and
Mark R. Beckington, Supervising Deputy Attorneys Gen-
eral, and Nicole Welindt, Associate Deputy Solicitor
General.
362 NATIONAL PORK PRODUCERS COUNCIL v. ROSS
Counsel
Jeffrey A. Lamken argued the cause for respondents
Humane Society of the United States et al. With him on
the brief were Michael G. Pattillo, Jr., Caleb Hayes-Deats,
Bruce Wagman, and Jonathan Lovvorn.*
*Briefs of amici curiae urging reversal were fled for the State of Indi-
ana et al. by Theodore E. Rokita, Attorney General of Indiana, Thomas
M. Fisher, Solicitor General, and Julia C. Payne and Melinda R. Holmes,
Deputy Attorneys General, and by the Attorneys General for their respec-
tive States as follows: Steve Marshall of Alabama, Mark Brnovich of Ari-
zona, Leslie Rutledge of Arkansas, Christopher M. Carr of Georgia, Law-
rence Wasden of Idaho, Tom Miller of Iowa, Derek Schmidt of Kansas,
Daniel Cameron of Kentucky, Jeff Landry of Louisiana, Lynn Fitch of
Mississippi, Eric Schmitt of Missouri, Austin Knudsen of Montana, Doug
Peterson of Nebraska, John Formella of New Hampshire, Drew Wrigley
of North Dakota, Dave Yost of Ohio, John M. O'Connor of Oklahoma, Alan
Wilson of South Carolina, Jason R. Ravnsborg of South Dakota, Herbert
H. Slatery III of Tennessee, Ken Paxton of Texas, Sean D. Reyes of Utah,
Jason Miyares of Virginia, Patrick Morrisey of West Virginia, and
Bridget Hill of Wyoming; for the American Association of Swine Veteri-
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narians by Aaron D. Van Oort, Tyler A. Young, Nicholas J. Nelson, and
Lance W. Lange; for the Association des Éleveurs de Canards et d'Oies
du Québec et al. by Michael Tenenbaum; for the Association for Accessible
Medicines by Jay P. Lefkowitz and Matthew D. Rowen; for the Buckeye
Institute by Larry J. Obhof, Jr., and Robert Alt; for the Canadian Pork
Council et al. by Roy T. Englert, Jr.; for the Chamber of Commerce of the
United States of America by Steffen N. Johnson and Michael W. McCon-
nell; for the National Association of Manufacturers et al. by Sean Marotta,
Patrick Hedren, and Karen R. Harned; for the National Taxpayers Union
Foundation by Joseph D. Henchman and Tyler Martinez; for the North
American Meat Institute by Paul J. Zidlicky and Eric D. McArthur; for
the North Carolina Chamber Legal Institute et al. by Gene C. Schaerr and
Erik S. Jaffe; for the Pacifc Legal Foundation by Deborah J. La Fetra
and Aditya Dynar; for Pharmaceutical Research and Manufacturers of
America by Allon Kedem, Jeffrey L. Handwerker, James C. Stansel, Me-
lissa B. Kimmel, and Joanne Chan; for Protect the Harvest by Ira T.
Kasdan; for the Retail Litigation Center, Inc., et al. by Beth S. Brink-
mann, Deborah White, and Angelo I. Amador; for the State Pork Pro-
ducers Association of Iowa et al. by Eldon McAfee and Christina Gruenha-
gen; for the Washington Legal Foundation by John M. Masslon II and Cory
L. Andrews; and for Michael Knoll et al. by Eric B. Wolff and Sopen B. Shah.
Briefs of amici curiae urging affrmance were fled for the State of
Illinois et al. by Kwame Raoul, Attorney General of Illinois, Jane Elinor
Cite as: 598 U. S. 356 (2023) 363
Opinion of the Court
Justice Gorsuch announced the judgment of the Court
and delivered the opinion of the Court, except as to Parts
IV–B, IV–C, and IV–D.
What goods belong in our stores? Usually, consumer de-
mand and local laws supply some of the answer. Recently,
California adopted just such a law banning the in-state sale
of certain pork products derived from breeding pigs confned
in stalls so small they cannot lie down, stand up, or turn
around. In response, two groups of out-of-state pork pro-
Notz, Solicitor General, Sarah A. Hunger, Deputy Solicitor General, Chris-
tina Hansen, Assistant Attorney General, by Dana Nessel, Attorney Gen-
eral of Michigan, Fadwa A. Hammoud, Solicitor General, and Ann M.
Sherman, Deputy Solicitor General, by Matthew J. Platkin, Acting Attor-
ney General of New Jersey, and by the Attorneys General for their respec-
tive jurisdictions as follows: Philip J. Weiser of Colorado, William Tong
of Connecticut, Karl Racine of the District of Columbia, Aaron M. Frey
of Maine, Brian E. Frosh of Maryland, Maura Healey of Massachusetts,
Aaron D. Ford of Nevada, Hector Balderas of New Mexico, Letitia James
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of New York, Ellen F. Rosenblum of Oregon, Peter F. Neronha of Rhode
Island, and Robert W. Ferguson of Washington; for the American Public
Health Association et al. by Henry Weisburg and Matthew G. Berkowitz;
for the American Society for the Prevention of Cruelty to Animals by
Jennifer H. Chin; for the Animal Protection and Rescue League, Inc., by
Bryan W. Pease; for Animal Protection Organizations et al. by Katherine
A. Meyer; for the Association of California Egg Farmers by Thomas G.
Saunders; for the Center for a Humane Economy et al. by Jessica L.
Blome; for Constitutional Law Scholars by Eric B. Boettcher; for Eco-
nomic Research Organizations by Benjamin D. Battles and Agatha M.
Cole; for Federalism Scholars by Gregory M. Lipper; for the Global Animal
Partnership et al. by Alethea Anne Swift, Jonathan S. Massey, and Wil-
liam J. Friedman; for Historians by Sheldon Eisenberg; for the National
League of Cities et al. by John J. Korzen; for the Northeast Organic Dairy
Producers Alliance by Christopher J. Wright and Jason Neal; for the Per-
due Premium Meat Co. by Mitchell Y. Mirviss; for the Physicians Commit-
tee for Responsible Medicine by Corey Page; for Public Citizen by Nandan
M. Joshi, Allison M. Zieve, and Scott L. Nelson; for Worker Safety Advo-
cates by David S. Muraskin; for Dr. Leon Barringer by Elizabeth R.
Moulton and Melanie R. Hallums; for Sen. Cory Booker by Glenn A.
Danas; for Donald Broom et al. by Gregory G. Rapawy; for Barry Fried-
man et al. by Elizabeth B. Wydra, Brianne J. Gorod, and Brian R. Fra-
zelle; for Jim Keen, DVM, Ph.D., et al. by Mark M. Leitner and Joseph
364 NATIONAL PORK PRODUCERS COUNCIL v. ROSS
Opinion of the Court
ducers fled this lawsuit, arguing that the law unconstitution-
ally interferes with their preferred way of doing business in
violation of this Court's dormant Commerce Clause prece-
dents. Both the district court and court of appeals dis-
missed the producers' complaint for failing to state a claim.
We affrm. Companies that choose to sell products in
various States must normally comply with the laws of those
various States. Assuredly, under this Court's dormant
Commerce Clause decisions, no State may use its laws to
discriminate purposefully against out-of-state economic in-
terests. But the pork producers do not suggest that Califor-
nia's law offends this principle. Instead, they invite us to
fashion two new and more aggressive constitutional restric-
tions on the ability of States to regulate goods sold within
their borders. We decline that invitation. While the Con-
stitution addresses many weighty issues, the type of pork
chops California merchants may sell is not on that list.
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Modern American grocery stores offer a dizzying array of
choice. Often, consumers may choose among eggs that are
large, medium, or small; eggs that are white, brown, or some
other color; eggs from cage-free chickens or ones raised con-
sistent with organic farming standards. When it comes to
meat and fsh, the options are no less plentiful. Products
may be marketed as free range, wild caught, or graded by
quality (prime, choice, select, and beyond). The pork prod-
ucts at issue here, too, sometimes come with “antibiotic-free”
and “crate-free” labels. USDA, Report to Congress: Live-
S. Goode; for O. Carter Snead et al. by Megan M. Wold; and for Mark Wu
by Mr. Wu, pro se.
Briefs of amici curiae were fled for Agricultural and Resource Econom-
ics Professors by Kathleen Hartnett and Adam S. Gershenson; for Butch-
erBox by Joshua I. Schiller; for Small and Independent Farming Busi-
nesses et al. by Jamie Crooks; and for Lea Brilmayer by Tassity S.
Johnson.
Cite as: 598 U. S. 356 (2023) 365
Opinion of the Court
stock Mandatory Reporting 18 (2018), https://www.ams.usda
.gov/sites/default/files/media /LMR2018ReporttoCongress
.pdf. Much of this product differentiation refects consumer
demand, informed by individual taste, health, or moral
considerations.
Informed by similar concerns, States (and their predeces-
sors) have long enacted laws aimed at protecting animal wel-
fare. As far back as 1641, the Massachusetts Bay Colony
prohibited “Tirranny or Crueltie towards any bruite Crea-
ture.” Body of Liberties § 92, in A Bibliographical Sketch of
the Laws of the Massachusetts Colony 52–53 (1890). Today,
Massachusetts prohibits the sale of pork products from
breeding pigs (or their offspring) if the breeding pig has been
confned “in a manner that prevents [it] from lying down,
standing up, fully extending [its] limbs or turning around
freely.” Mass. Gen. Laws Ann., ch. 129, App. §§ 1–3, 1–5
(Cum. Supp. 2023). Nor is that State alone. Florida's Con-
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stitution prohibits “any person [from] confn[ing] a pig during
pregnancy . . . in such a way that she is prevented from
turning around freely.” Art. X, § 21(a). Arizona, Maine,
Michigan, Oregon, and Rhode Island, too, have laws regulat-
ing animal confnement practices within their borders. See
Ariz. Rev. Stat. Ann. § 13–2910.07(A) (2018); Me. Rev. Stat.
Ann., Tit. 7, §§ 4020(1)–(2) (2018); Mich. Comp. Laws
§ 287.746(2) (West Cum. Supp. 2022); Ore. Rev. Stat.
§§ 600.150(1)–(2) (2021); R. I. Gen. Laws § 4–1.1–3 (Supp.
2022).
This case involves a challenge to a California law known
as Proposition 12. In November 2018 and with the support
of about 63% of participating voters, California adopted a
ballot initiative that revised the State's existing standards
for the in-state sale of eggs and announced new standards
for the in-state sale of pork and veal products. App. to Pet.
for Cert. 37a–46a. As relevant here, Proposition 12 forbids
the in-state sale of whole pork meat that comes from breed-
ing pigs (or their immediate offspring) that are “confned
366 NATIONAL PORK PRODUCERS COUNCIL v. ROSS
Opinion of the Court
in a cruel manner.” Cal. Health & Safety Code Ann.
§ 25990(b)(2) (West Cum. Supp. 2023). Subject to certain ex-
ceptions, the law deems confnement “cruel” if it prevents a
pig from “lying down, standing up, fully extending [its]
limbs, or turning around freely.” § 25991(e)(1). Since Prop-
osition 12's adoption, the State has begun developing “pro-
posed regulations” that would permit compliance “certifca-
tion[s]” to be issued “by non-governmental third parties,
many used for myriad programs (e. g., ``organic') already.”
Brief for Intervenor Respondents 30, n. 8.
A spirited debate preceded the vote on Proposition 12.
Proponents observed that, in some farming operations, preg-
nant pigs remain “[e]ncased” for 16 weeks in “ft-to-size”
metal crates. M. Scully, A Brief for the Pigs: The Case of
National Pork Producers Council v. Ross, National Review,
July 11, 2022, https://www.nationalreview.com/2022/07/a-
brief - for - the - pigs - the - case - of - national - pork - producers -
council-v-ross/. These animals may receive their only op-
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portunity for exercise when they are moved to a separate
barn to give birth and later returned for another 16 weeks
of pregnancy confnement—with the cycle repeating until the
pigs are slaughtered. Ibid. Proponents hoped that Propo-
sition 12 would go a long way toward eliminating pork
sourced in this manner “from the California marketplace.”
A. Padilla, Cal. Secretary of State, California General Elec-
tion—Official Voter Information Guide 70 (Nov. 6, 2018)
(Voter Guide), https://vig.cdn.sos.ca.gov/2018/general/pdf/
complete-vig.pdf. Proponents also suggested that the law
would have health benefts for consumers because “packing
animals in tiny, flthy cages increases the risk of food poison-
ing.” Ibid.; see App. to Pet. for Cert. 201a–202a.
Opponents pressed their case in strong terms too. They
argued that existing farming practices did a better job of
protecting animal welfare (for example, by preventing pig-
on-pig aggression) and ensuring consumer health (by avoid-
ing contamination) than Proposition 12 would. Id., at 185a–
187a; see also Voter Guide 70–71. They also warned voters
Cite as: 598 U. S. 356 (2023) 367
Opinion of the Court
that Proposition 12 would require some farmers and proces-
sors to incur new costs. Id., at 69. Ones that might be
“passed through” to California consumers. Ibid.
Shortly after Proposition 12's adoption, two organiza-
tions—the National Pork Producers Council and the Ameri-
can Farm Bureau Federation (collectively, petitioners)—fled
this lawsuit on behalf of their members who raise and proc-
ess pigs. App. to Pet. for Cert. 154a–155a. Petitioners al-
leged that Proposition 12 violates the U. S. Constitution
by impermissibly burdening interstate commerce. Id., at
230a–232a.
In support of that legal claim, petitioners pleaded a num-
ber of facts. They acknowledged that, in response to con-
sumer demand and the laws of other States, 28% of their
industry has already converted to some form of group hous-
ing for pregnant pigs. Id., at 186a. But, petitioners cau-
tioned, even some farmers who already raise group-housed
pigs will have to modify their practices if they wish to com-
Page Proof Pending Publication
ply with Proposition 12. Id., at 208a–209a. Much of pork
production today is vertically integrated, too, with farmers
selling pigs to large processing frms that turn them into
different “cuts of meat” and distribute the “different parts
. . . all over to completely different end users.” Id., at 334a–
335a. Revising this system to segregate and trace Propo-
sition 12-compliant pork, petitioners alleged, will require
certain processing frms to make substantial new capital in-
vestments. Id., at 205a–206a. Ultimately, petitioners esti-
mated that “compliance with Proposition 12 will increase
production costs” by “9.2% . . . at the farm level.” Id., at
214a. These compliance costs will fall on California and out-
of-state producers alike. Ibid. But because California im-
ports almost all the pork it consumes, petitioners empha-
sized, “the majority” of Proposition 12's compliance costs will
be initially borne by out-of-state frms. Ibid.
After considerable motions practice, the district court held
that petitioners' complaint failed to state a claim as a matter
of law and dismissed the case. 456 F. Supp. 3d 1201 (SD Cal.
368 NATIONAL PORK PRODUCERS COUNCIL v. ROSS
Opinion of the Court
2020). With Judge Ikuta writing for a unanimous panel, the
Ninth Circuit affrmed. 6 F. 4th 1021 (2021). Following
that ruling, petitioners sought certiorari and we agreed to
consider the complaint's legal suffciency for ourselves. 596
U. S. ––– (2022).
II
The Constitution vests Congress with the power to “regu-
late Commerce . . . among the several States.” Art. I, § 8,
cl. 3. Everyone agrees that Congress may seek to exercise
this power to regulate the interstate trade of pork, much as
it has done with various other products. Everyone agrees,
too, that congressional enactments may preempt conficting
state laws. See Art. VI, cl. 2. But everyone also agrees
that we have nothing like that here. Despite the persistent
efforts of certain pork producers, Congress has yet to adopt
any statute that might displace Proposition 12 or laws regu-
lating pork production in other States. See, e. g., H. R. 272,
Page Proof Pending Publication
116th Cong., 1st Sess., § 2 (2019); H. R. 4879, 115th Cong., 2d
Sess., § 2(a) (2018); H. R. 3599, 115th Cong., 1st Sess., § 2(a)
(2017); H. R. 687, 114th Cong., 1st Sess., § 2(a) (2015).
That has led petitioners to resort to litigation, pinning
their hopes on what has come to be called the dormant Com-
merce Clause. Reading between the Constitution's lines,
petitioners observe, this Court has held that the Commerce
Clause not only vests Congress with the power to regulate
interstate trade; the Clause also “contain[s] a further, nega-
tive command,” one effectively forbidding the enforcement
of “certain state [economic regulations] even when Congress
has failed to legislate on the subject.” Oklahoma Tax
Comm'n v. Jefferson Lines, Inc., 514 U. S. 175, 179 (1995).
This view of the Commerce Clause developed gradually.
In Gibbons v. Ogden, Chief Justice Marshall recognized that
the States' constitutionally reserved powers enable them to
regulate commerce in their own jurisdictions in ways sure to
have “a remote and considerable infuence on commerce” in
other States. 9 Wheat. 1, 203 (1824). By way of example,
Cite as: 598 U. S. 356 (2023) 369
Opinion of the Court
he cited “[i]nspection laws, quarantine laws, [and] health
laws of every description.” Ibid. At the same time, how-
ever, Chief Justice Marshall saw “great force in th[e] argu-
ment” that the Commerce Clause might impliedly bar certain
types of state economic regulation. Id., at 209. Decades
later, in Cooley v. Board of Wardens of Port of Philadelphia
ex rel. Soc. for Relief of Distressed Pilots, this Court again
recognized that the power vested in Congress to regulate
interstate commerce leaves the States substantial leeway to
adopt their own commercial codes. 12 How. 299, 317–321
(1852). But once more, the Court hinted that the Constitu-
tion may come with some restrictions on what “may be regu-
lated by the States” even “in the absence of all congressional
legislation.” Id., at 320.
Eventually, the Court cashed out these warnings, holding
that state laws offend the Commerce Clause when they seek
to “build up . . . domestic commerce” through “burdens upon
Page Proof Pending Publication
the industry and business of other States,” regardless of
whether Congress has spoken. Guy v. Baltimore, 100 U. S.
434, 443 (1880). At the same time, though, the Court reiter-
ated that, absent discrimination, “a State may exclude from
its territory, or prohibit the sale therein of any articles
which, in its judgment, fairly exercised, are prejudicial to”
the interests of its citizens. Ibid.Today, this antidiscrimination principle lies at the “very
core” of our dormant Commerce Clause jurisprudence.
Camps Newfound/Owatonna, Inc. v. Town of Harrison, 520
U. S. 564, 581 (1997). In its “modern” cases, this Court has
said that the Commerce Clause prohibits the enforcement of
state laws “driven by . . . ``economic protectionism—that is,
regulatory measures designed to beneft in-state economic
interests by burdening out-of-state competitors.' ” Depart-
ment of Revenue of Ky. v. Davis, 553 U. S. 328, 337–338
(2008) (quoting New Energy Co. of Ind. v. Limbach, 486 U. S.
269, 273–274 (1988)); see also Tennessee Wine and Spirits
Retailers Assn. v. Thomas, 588 U. S. –––, ––– (2019) (observ-
370 NATIONAL PORK PRODUCERS COUNCIL v. ROSS
Opinion of the Court
ing that this Court's cases operate principally to “safeguard
against state protectionism”); Northwest Airlines, Inc. v.
County of Kent, 510 U. S. 355, 373, n. 18 (1994) (describing
“a violation of the dormant Commerce Clause” as “discrimi-
nation against interstate commerce”).
Admittedly, some “Members of the Court have authored
vigorous and thoughtful critiques of this interpretation” of
the Commerce Clause. Tennessee Wine, 588 U. S., at –––
(citing cases). They have not necessarily quarreled with
the antidiscrimination principle. But they have suggested
that it may be more appropriately housed elsewhere in the
Constitution. Perhaps in the Import-Export Clause, which
prohibits States from “lay[ing] any Imposts or Duties on
Imports or Exports” without permission from Congress.
Art. I, § 10, cl. 2; see Camps Newfound/Owatonna, 520 U. S.,
at 621–637 (Thomas, J., dissenting). Perhaps in the Privi-
leges and Immunities Clause, which entitles “[t]he Citizens
Page Proof Pending Publication
of each State” to “all Privileges and Immunities of Citizens
in the several States.” Art. IV, § 2; see Tyler Pipe Indus-
tries, Inc. v. Washington State Dept. of Revenue, 483 U. S.
232, 265 (1987) (Scalia, J., concurring in part and dissenting
in part). Or perhaps the principle inheres in the very struc-
ture of the Constitution, which “was framed upon the theory
that the peoples of the several [S]tates must sink or swim
together.” American Trucking Assns., Inc. v. Michigan
Pub. Serv. Comm'n, 545 U. S. 429, 433 (2005) (internal quota-
tion marks omitted).
Whatever one thinks about these critiques, we have no
need to engage with any of them to resolve this case. Even
under our received dormant Commerce Clause case law, peti-
tioners begin in a tough spot. They do not allege that Cali-
fornia's law seeks to advantage in-state frms or disadvan-
tage out-of-state rivals. In fact, petitioners disavow any
discrimination-based claim, conceding that Proposition 12
imposes the same burdens on in-state pork producers that
it imposes on out-of-state ones. As petitioners put it, “the
Cite as: 598 U. S. 356 (2023) 371
Opinion of the Court
dormant Commerce Clause . . . bar on protectionist state
statutes that discriminate against interstate commerce . . .
is not in issue here.” Brief for Petitioners 2, n. 2.
III
Having conceded that California's law does not implicate
the antidiscrimination principle at the core of this Court's
dormant Commerce Clause cases, petitioners are left to pur-
sue two more ambitious theories. In the frst, petitioners
invoke what they call “extraterritoriality doctrine.” Id., at
19. They contend that our dormant Commerce Clause cases
suggest an additional and “almost per se” rule forbidding en-
forcement of state laws that have the “practical effect of con-
trolling commerce outside the State,” even when those laws
do not purposely discriminate against out-of-state economic
interests. Ibid. Petitioners further insist that Proposition
12 offends this “almost per se” rule because the law will im-
Page Proof Pending Publication
pose substantial new costs on out-of-state pork producers
who wish to sell their products in California.
A
This argument falters out of the gate. Put aside what
problems may attend the minor (factual) premise of this ar-
gument. Focus just on the major (legal) premise. Petition-
ers say the “almost per se” rule they propose follows ineluc-
tably from three cases—Healy v. Beer Institute, 491 U. S.
324 (1989); Brown-Forman Distillers Corp. v. New York
State Liquor Authority, 476 U. S. 573 (1986); and Baldwin v.
G. A. F. Seelig, Inc., 294 U. S. 511 (1935). A close look at
those cases, however, reveals nothing like the rule petition-
ers posit. Instead, each typifes the familiar concern with
preventing purposeful discrimination against out-of-state
economic interests.
Start with Baldwin. There, this Court refused to enforce
New York laws that barred out-of-state dairy farmers from
selling their milk in the State “unless the price paid to” them
372 NATIONAL PORK PRODUCERS COUNCIL v. ROSS
Opinion of the Court
matched the minimum price New York law guaranteed in-
state producers. Id., at 519. In that way, the challenged
laws deliberately robbed out-of-state dairy farmers of the
opportunity to charge lower prices in New York thanks to
whatever “natural competitive advantage” they might have
enjoyed over in-state dairy farmers—for example, lower cost
structures, more productive farming practices, or “lusher
pasturage.” D. Regan, The Supreme Court and State Pro-
tectionism: Making Sense of the Dormant Commerce Clause,
84 Mich. L. Rev. 1091, 1248 (1986). The problem with New
York's laws was thus a simple one: They “plainly discrimi-
nate[d]” against out-of-staters by “erecting an economic bar-
rier protecting a major local industry against competition
from without the State.” Dean Milk Co. v. Madison, 340
U. S. 349, 354 (1951) (discussing Baldwin). Really, the laws
operated like “a tariff or customs duty.” West Lynn Cream-
ery, Inc. v. Healy, 512 U. S. 186, 194 (1994); see Baldwin, 294
Page Proof Pending Publication
U. S., at 523 (condemning the challenged laws for seeking
to “protec[t]” New York dairy farmers “against competition
from without”).
Brown-Forman and Healy differed from Baldwin only in
that they involved price-affrmation, rather than price-fxing,
statutes. In Brown-Forman, New York required liquor dis-
tillers to affrm (on a monthly basis) that their in-state prices
were no higher than their out-of-state prices. 476 U. S., at
576. Once more, the goal was plain: New York sought to
force out-of-state distillers to “surrender” whatever cost ad-
vantages they enjoyed against their in-state rivals. Id., at
580. Once more, the law amounted to “simple economic pro-
tectionism.” Ibid. (internal quotation marks omitted).
In Healy, a Connecticut law required out-of-state beer
merchants to affrm that their in-state prices were no higher
than those they charged in neighboring States. 491 U. S.,
at 328–330. Here, too, protectionism took center stage. As
the Court later noted, “[t]he essential vice in laws” like Con-
necticut's is that they “hoard” commerce “for the beneft of ”
Cite as: 598 U. S. 356 (2023) 373
Opinion of the Court
in-state merchants and discourage consumers from crossing
state lines to make their purchases from nearby out-of-state
vendors. C & A Carbone, Inc. v. Clarkstown, 511 U. S. 383,
391–392 (1994). Nor did the law in Healy even try to cloak
its discriminatory purpose: “By its plain terms, the Connecti-
cut affrmation statute applie[d] solely to interstate” frms,
and in that way “clearly discriminate[d] against interstate
commerce.” 491 U. S., at 340–341. The Court also worried
that, if the Connecticut law stood, “each of the border States”
could “enac[t] statutes essentially identical to Connecticut's”
in retaliation—a result often associated with avowedly pro-
tectionist economic policies. Id., at 339–340.
B
Petitioners insist that our reading of these cases misses
the forest for the trees. On their account, Baldwin, Brown-
Forman, and Healy didn't just fnd an impermissible dis-
Page Proof Pending Publication
criminatory purpose in the challenged laws; they also sug-
gested an “almost per se” rule against state laws with
“extraterritorial effects.” Brief for Petitioners 19, 23. In
Healy, petitioners stress, the Court included language criti-
cizing New York's laws for having the “ ``practical effect' ” of
“control[ling] commerce ``occurring wholly outside the bound-
aries of [the] State.' ” Brief for Petitioners 21, 25 (quoting
491 U. S., at 336). In Brown-Forman, petitioners observe,
the Court suggested that whether a state law “ ``is addressed
only to [in-state] sales' ” “ ``is irrelevant if the “practical ef-
fect” of the law is to control' ” out-of-state prices. Brief for
Petitioners 21 (quoting 476 U. S., at 583). Petitioners point
to similar language in Baldwin as well. Brief for Petition-
ers 37 (quoting 294 U. S., at 523–524).
In our view, however, petitioners read too much into too
little. “[T]he language of an opinion is not always to be
parsed as though we were dealing with language of a stat-
ute.” Reiter v. Sonotone Corp., 442 U. S. 330, 341 (1979).
Instead, we emphasize, our opinions dispose of discrete cases
374 NATIONAL PORK PRODUCERS COUNCIL v. ROSS
Opinion of the Court
and controversies and they must be read with a careful eye
to context. See Cohens v. Virginia, 6 Wheat. 264, 399–400
(1821) (Marshall, C. J.). And when it comes to Baldwin,
Brown-Forman, and Healy, the language petitioners high-
light appeared in a particular context and did particular
work. Throughout, the Court explained that the challenged
statutes had a specifc impermissible “extraterritorial ef-
fect”—they deliberately “prevent[ed out-of-state frms] from
undertaking competitive pricing” or “deprive[d] businesses
and consumers in other States of ``whatever competitive ad-
vantages they may possess.' ” Healy, 491 U. S., at 338–339
(quoting Brown-Forman, 476 U. S., at 580).
In recognizing this much, we say nothing new. This
Court has already described “[t]he rule that was applied in
Baldwin and Healy” as addressing “price control or price
affrmation statutes” that tied “the price of . . . in-state prod-
ucts to out-of-state prices.” Pharmaceutical Research and
Mfrs. of America v. Walsh, 538 U. S. 644, 669 (2003) (internal
Page Proof Pending Publication
quotation marks omitted). Many lower courts have read
these decisions in exactly the same way. See, e. g., 6 F. 4th,
at 1028–1029; Association for Accessible Medicines v. Frosh,
887 F. 3d 664, 669 (CA4 2018); Energy and Environment
Legal Inst. v. Epel, 793 F. 3d 1169, 1174 (CA10 2015); Ameri-
can Beverage Assn. v. Snyder, 735 F. 3d 362, 373 (CA6 2013).
Consider, too, the strange places petitioners' alternative
interpretation could lead. In our interconnected national
marketplace, many (maybe most) state laws have the “practi-
cal effect of controlling” extraterritorial behavior. State
income tax laws lead some individuals and companies to
relocate to other jurisdictions. See, e. g., Banner v. United
States, 428 F. 3d 303, 310 (CADC 2005) (per curiam). Envi-
ronmental laws often prove decisive when businesses choose
where to manufacture their goods. See American Beverage
Assn., 735 F. 3d, at 379 (Sutton, J., concurring). Add to the
extraterritorial-effects list all manner of “libel laws, secu-
rities requirements, charitable registration requirements,
franchise laws, tort laws,” and plenty else besides. J. Gold-
Cite as: 598 U. S. 356 (2023) 375
Opinion of the Court
smith & A. Sykes, The Internet and the Dormant Commerce
Clause, 110 Yale L. J. 785, 804 (2001). Nor, as we have seen,
is this a recent development. Since the founding, States
have enacted an “immense mass” of “[i]nspection laws, quar-
antine laws, [and] health laws of every description” that have
a “considerable” infuence on commerce outside their bor-
ders. Gibbons, 9 Wheat., at 203; see also Cooley, 12 How.,
at 317–321. Petitioners' “almost per se” rule against laws
that have the “practical effect” of “controlling” extraterrito-
rial commerce would cast a shadow over laws long under-
stood to represent valid exercises of the States' constitution-
ally reserved powers. It would provide neither courts nor
litigants with meaningful guidance in how to resolve dis-
putes over them. Instead, it would invite endless litigation
and inconsistent results. Can anyone really suppose Bald-
win, Brown-Forman, and Healy meant to do so much?
In rejecting petitioners' “almost per se” theory we do not
mean to trivialize the role territory and sovereign bound-
Page Proof Pending Publication
aries play in our federal system. Certainly, the Constitution
takes great care to provide rules for fxing and changing
state borders. Art. IV, § 3, cl. 1. Doubtless, too, courts
must sometimes referee disputes about where one State's au-
thority ends and another's begins—both inside and outside
the commercial context. In carrying out that task, this
Court has recognized the usual “legislative power of a State
to act upon persons and property within the limits of its own
territory,” Hoyt v. Sprague, 103 U. S. 613, 630 (1881), a fea-
ture of our constitutional order that allows “different com-
munities” to live “with different local standards,” Sable Com-
munications of Cal., Inc. v. FCC, 492 U. S. 115, 126 (1989).
But, by way of example, no one should think that one State
may adopt a law exempting securities held by the residents
of a second State from taxation in that second State. Bona-
parte v. Tax Court, 104 U. S. 592, 592–594 (1882). Nor, we
have held, should anyone think one State may prosecute the
citizen of another State for acts committed “outside [the frst
State's] jurisdiction” that are not “intended to produce [or
376 NATIONAL PORK PRODUCERS COUNCIL v. ROSS
Opinion of the Court
that do not] produc[e] detrimental effects within it.” Strass-
heim v. Daily, 221 U. S. 280, 285 (1911).
To resolve disputes about the reach of one State's power,
this Court has long consulted original and historical under-
standings of the Constitution's structure and the principles
of “sovereignty and comity” it embraces. BMW of North
America, Inc. v. Gore, 517 U. S. 559, 572 (1996). This Court
has invoked as well a number of the Constitution's express
provisions—including “the Due Process Clause and the Full
Faith and Credit Clause.” Phillips Petroleum Co. v. Shutts,
472 U. S. 797, 818 (1985). The antidiscrimination principle
found in our dormant Commerce Clause cases may well rep-
resent one more effort to mediate competing claims of sover-
eign authority under our horizontal separation of powers.
But none of this means, as petitioners suppose, that any
question about the ability of a State to project its power
extraterritorially must yield to an “almost per se” rule under
the dormant Commerce Clause. This Court has never be-
Page Proof Pending Publication
fore claimed so much “ground for judicial supremacy under
the banner of the dormant Commerce Clause.” United
Haulers Assn., Inc. v. Oneida-Herkimer Solid Waste Man-
agement Authority, 550 U. S. 330, 347 (2007). We see no
reason to change course now.1
1
Beyond Baldwin, Brown-Forman, and Healy, petitioners point to
Edgar v. MITE Corp., 457 U. S. 624 (1982), as authority for the “almost
per se” rule they propose. Invoking the dormant Commerce Clause, a
plurality in that case declined to enforce an Illinois securities law that
“directly regulate[d] transactions which [took] place . . . wholly outside the
State” and involved individuals “having no connection with Illinois.” Id.,at 641–643 (emphasis added). Some have questioned whether the state
law at issue in Edgar posed a dormant Commerce Clause question as much
as one testing the territorial limits of state authority under the Constitu-
tion's horizontal separation of powers. See, e. g., D. Regan, Siamese Es-
says: (I) CTS Corp. v. Dynamics Corp. of America and Dormant Com-
merce Clause Doctrine; (II) Extraterritorial State Legislation, 85 Mich.
L. Rev. 1865, 1875–1880, 1897–1902 (1987); cf. Shelby County v. Holder, 570
U. S. 529, 535 (2013) (“[A]ll States enjoy equal sovereignty”). But either
way, the Edgar plurality opinion does not support the rule petitioners
Cite as: 598 U. S. 356 (2023) 377
Opinion of the Court
IV
Failing in their frst theory, petitioners retreat to a second
they associate with Pike v. Bruce Church, Inc., 397 U. S. 137(1970). Under Pike, they say, a court must at least assess
“ ``the burden imposed on interstate commerce' ” by a state
law and prevent its enforcement if the law's burdens are
“ ``clearly excessive in relation to the putative local benefts.' ”
Brief for Petitioners 44. Petitioners then rattle off a litany
of reasons why they believe the benefts Proposition 12 se-
cures for Californians do not outweigh the costs it imposes
on out-of-state economic interests. We see problems with
this theory too.
A
In the frst place, petitioners overstate the extent to which
Pike and its progeny depart from the antidiscrimination rule
that lies at the core of our dormant Commerce Clause juris-
prudence. As this Court has previously explained, “no clear
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line” separates the Pike line of cases from our core antidis-
crimination precedents. General Motors Corp. v. Tracy, 519
U. S. 278, 298, n. 12 (1997). While many of our dormant
Commerce Clause cases have asked whether a law exhibits
“ ``facial discrimination,' ” “several cases that have purported
to apply [Pike,] including Pike itself,” have “turned in whole
or in part on the discriminatory character of the challenged
state regulations.” Ibid. In other words, if some of our
cases focus on whether a state law discriminates on its face,
the Pike line serves as an important reminder that a law's
practical effects may also disclose the presence of a discrimi-
natory purpose.
Pike itself illustrates the point. That case concerned an
Arizona order requiring cantaloupes grown in state to be
propose. That decision spoke to a law that directly regulated out-of-state
transactions by those with no connection to the State. Petitioners do not
allege those conditions exist here. To the contrary, they acknowledge
that Proposition 12 regulates only products that companies choose to sell
“within” California. Cal. Health & Safety Code Ann. § 25990(b).
378 NATIONAL PORK PRODUCERS COUNCIL v. ROSS
Opinion of the Court
processed and packed in state. 397 U. S., at 138–140. The
Court held that Arizona's order violated the dormant Com-
merce Clause. Id., at 146. Even if that order could be
fairly characterized as facially neutral, the Court stressed
that it “requir[ed] business operations to be performed in
[state] that could more effciently be performed elsewhere.”
Id., at 145. The “practical effect[s]” of the order in opera-
tion thus revealed a discriminatory purpose—an effort to in-
sulate in-state processing and packaging businesses from
out-of-state competition. Id., at 140, 145.
Other cases in the Pike line underscore the same message.
In Minnesota v. Clover Leaf Creamery Co., the Court found
no impermissible burden on interstate commerce because,
looking to the law's effects, “there [was] no reason to suspect
that the gainers” would be in-state frms or that “the losers
[would be] out-of-state frms.” 449 U. S. 456, 473 (1981); see
also id., at 474–477, and n. 2 (Powell, J., concurring in part
Page Proof Pending Publication
and dissenting in part) (asking whether the “actual purpose,”
if not the “ ``avowed purpose,' ” of the law was discrimina-
tion). Similarly, in Exxon Corp. v. Governor of Maryland,
the Court keyed to the fact that the effect of the challenged
law was only to shift business from one set of out-of-state
suppliers to another. 437 U. S. 117, 127 (1978). And in
United Haulers, a plurality upheld the challenged law be-
cause it could not “detect” any discrimination in favor of in-
state businesses or against out-of-state competitors. 550
U. S., at 346. In each of these cases and many more, the
presence or absence of discrimination in practice proved
decisive.
Once again, we say nothing new here. Some time ago,
Tracy identifed the congruity between our core dormant
Commerce Clause precedents and the Pike line. 519 U. S.,
at 298, n. 12. Many lower courts have done the same. See,
e. g., Rosenblatt v. Santa Monica, 940 F. 3d 439, 452 (CA9
2019); Park Pet Shop, Inc. v. Chicago, 872 F. 3d 495, 501 (CA7
2017); Amanda Acquisition Corp. v. Universal Foods Corp.,
Cite as: 598 U. S. 356 (2023) 379
Opinion of the Court
877 F. 2d 496, 505 (CA7 1989). So have many scholars. See,
e. g., R. Fallon, The Dynamic Constitution 311 (2d ed. 2013)
(observing that Pike serves to “ ``smoke out' a hidden” pro-
tectionism); B. Friedman & D. Deacon, A Course Unbroken:
The Constitutional Legitimacy of the Dormant Commerce
Clause, 97 Va. L. Rev. 1877, 1927 (2011); Regan, 84 Mich.
L. Rev., at 1286.
Nor does any of this help petitioners in this case. They
not only disavow any claim that Proposition 12 discriminates
on its face. They nowhere suggest that an examination of
Proposition 12's practical effects in operation would disclose
purposeful discrimination against out-of-state businesses.
While this Court has left the “courtroom door open” to chal-
lenges premised on “even nondiscriminatory burdens, ”
Davis, 553 U. S., at 353, and while “a small number of our
cases have invalidated state laws . . . that appear to have been
genuinely nondiscriminatory,” Tracy, 519 U. S., at 298, n. 12,2
Page
2
Proof Pending Publication
Most notably, Tracy referred to, and petitioners briefy allude to, a line
of cases that originated before Pike in which this Court refused to enforce
certain state regulations on instrumentalities of interstate transporta-
tion—trucks, trains, and the like. See, e. g., Bibb v. Navajo Freight Lines,
Inc., 359 U. S. 520, 523–530 (1959) (concerning a state law specifying cer-
tain mud faps for trucks and trailers); Southern Pacifc Co. v. Arizona ex
rel. Sullivan, 325 U. S. 761, 763–782 (1945) (addressing a state law regard-
ing the length of trains). Petitioners claim these cases support something
like the extraterritoriality or balancing rules they propose. But at least
some decisions in this line might be viewed as condemning state laws that
“although neutral on their face . . . were enacted at the instance of, and
primarily beneft,” in-state interests. Raymond Motor Transp., Inc. v.
Rice, 434 U. S. 429, 447 (1978); see also B. Friedman & D. Deacon, A Course
Unbroken: The Constitutional Legitimacy of the Dormant Commerce
Clause, 97 Va. L. Rev. 1877, 1927 (2011). In any event, this Court “has
only rarely held that the Commerce Clause itself pre-empts an entire feld
from state regulation, and then only when a lack of national uniformity
would impede the fow of interstate goods.” Exxon Corp. v. Governor of
Maryland, 437 U. S. 117, 128 (1978) (emphasis added). Nothing like that
exists here. We do not face a law that impedes the fow of commerce.
Pigs are not trucks or trains.
380 NATIONAL PORK PRODUCERS COUNCIL v. ROSS
Opinion of Gorsuch, J.
petitioners' claim falls well outside Pike's heartland. That
is not an auspicious start.
B
Matters do not improve from there. While Pike has tra-
ditionally served as another way to test for purposeful dis-
crimination against out-of-state economic interests, and
while some of our cases associated with that line have ex-
pressed special concern with certain state regulation of the
instrumentalities of interstate transportation, see n. 2,
supra, petitioners would have us retool Pike for a much more
ambitious project. They urge us to read Pike as authorizing
judges to strike down duly enacted state laws regulating the
in-state sale of ordinary consumer goods (like pork) based on
nothing more than their own assessment of the relevant law's
“costs” and “benefts.”
That we can hardly do. Whatever other judicial authori-
ties the Commerce Clause may imply, that kind of freewheel-
Page Proof Pending Publication
ing power is not among them. Petitioners point to nothing
in the Constitution's text or history that supports such a
project. And our cases have expressly cautioned against
judges using the dormant Commerce Clause as “a roving
license for federal courts to decide what activities are ap-
propriate for state and local government to undertake.”
United Haulers, 550 U. S., at 343. While “[t]here was a time
when this Court presumed to make such binding judgments
for society, under the guise of interpreting the Due Process
Clause,” we have long refused pleas like petitioners' “to re-
claim that ground” in the name of the dormant Commerce
Clause. Id., at 347.
Not only is the task petitioners propose one the Commerce
Clause does not authorize judges to undertake. This Court
has also recognized that judges often are “not institutionally
suited to draw reliable conclusions of the kind that would be
necessary . . . to satisfy [the] Pike” test as petitioners con-
ceive it. Davis, 553 U. S., at 353.
Our case illustrates the problem. On the “cost” side of the
ledger, petitioners allege they will face increased production
Cite as: 598 U. S. 356 (2023) 381
Opinion of Gorsuch, J.
expenses because of Proposition 12. On the “benefts” side,
petitioners acknowledge that Californians voted for Proposi-
tion 12 to vindicate a variety of interests, many noneconomic.
See App. to Pet. for Cert. 192a (alleging in their complaint
that “Proposition 12's requirements were driven by [a] con-
ception of what qualifes as ``cruel' animal housing” and by
the State's concern for the “ ``health and safety of California
consumers' ”). How is a court supposed to compare or weigh
economic costs (to some) against noneconomic benefts (to
others)? No neutral legal rule guides the way. The com-
peting goods before us are insusceptible to resolution by ref-
erence to any juridical principle. Really, the task is like
being asked to decide “whether a particular line is longer
than a particular rock is heavy.” Bendix Autolite Corp. v.
Midwesco Enterprises, Inc., 486 U. S. 888, 897 (1988) (Sca-
lia, J., concurring in judgment).
Faced with this problem, petitioners reply that we should
heavily discount the benefts of Proposition 12. They say
Page Proof Pending Publication
that California has little interest in protecting the welfare of
animals raised elsewhere and the law's health benefts are
overblown. But along the way, petitioners offer notable
concessions too. They acknowledge that States may some-
times ban the in-state sale of products they deem unethical
or immoral without regard to where those products are made
(for example, goods manufactured with child labor). See Tr.
of Oral Arg. 51 (“[A] state is perfectly entitled to enforce its
morals in state”); see also Western Union Telegraph Co. v.
James, 162 U. S. 650, 653 (1896) (holding that States may
enact laws to “promote . . . public morals”). And, at least
arguably, Proposition 12 works in just this way—banning
from the State all whole pork products derived from prac-
tices its voters consider “cruel.” Petitioners also concede
that States may often adopt laws addressing even “imper-
fectly understood” health risks associated with goods sold
within their borders. Reply Brief 13. And, again, no one
disputes that some who voted for Proposition 12 may have
done so with just that sort of goal in mind. See, e. g., USDA
382 NATIONAL PORK PRODUCERS COUNCIL v. ROSS
Opinion of Gorsuch, J.
Proposed Rule To Amend Organic Livestock and Poultry
Production Requirements, 87 Fed. Reg. 48565 (2022) (afford-
ing animals more space “may result in healthier livestock
products for human consumption”).
So even accepting everything petitioners say, we remain
left with a task no court is equipped to undertake. On the
one hand, some out-of-state producers who choose to comply
with Proposition 12 may incur new costs. On the other
hand, the law serves moral and health interests of some (dis-
putable) magnitude for in-state residents. Some might rea-
sonably fnd one set of concerns more compelling. Others
might fairly disagree. How should we settle that dispute?
The competing goods are incommensurable. Your guess is
as good as ours.
More accurately, your guess is better than ours. In a func-
tioning democracy, policy choices like these usually belong
to the people and their elected representatives. They are
Page Proof Pending Publication
entitled to weigh the relevant “political and economic” costs
and benefts for themselves, Moorman Mfg. Co. v. Bair, 437
U. S. 267, 279 (1978), and “try novel social and economic ex-
periments” if they wish, New State Ice Co. v. Liebmann, 285
U. S. 262, 311 (1932) (Brandeis, J., dissenting). Judges can-
not displace the cost-beneft analyses embodied in democrati-
cally adopted legislation guided by nothing more than their
own faith in “Mr. Herbert Spencer's Social Statics,” Lochner
v. New York, 198 U. S. 45, 75 (1905) (Holmes, J., dissenting)—
or, for that matter, Mr. Wilson Pond's Pork Production Sys-
tems, see W. Pond, J. Maner, & D. Harris, Pork Production
Systems: Effcient Use of Swine and Feed Resources (1991).
If, as petitioners insist, California's law really does
threaten a “massive” disruption of the pork industry, see
Brief for Petitioners 2, 4, 19—if pig husbandry really does
“ ``imperatively demand' ” a single uniform nationwide rule,
id., at 27—they are free to petition Congress to intervene.
Under the (wakeful) Commerce Clause, that body enjoys the
power to adopt federal legislation that may preempt con-
Cite as: 598 U. S. 356 (2023) 383
Opinion of Gorsuch, J.
ficting state laws. That body is better equipped than this
Court to identify and assess all the pertinent economic and
political interests at play across the country. And that body
is certainly better positioned to claim democratic support for
any policy choice it may make. But so far, Congress has
declined the producers' sustained entreaties for new legisla-
tion. See Part I, supra (citing failed efforts). And with
that history in mind, it is hard not to wonder whether peti-
tioners have ventured here only because winning a majority
of a handful of judges may seem easier than marshaling a
majority of elected representatives across the street.
C
Even as petitioners conceive Pike, they face a problem.
As they read it, Pike requires a plaintiff to plead facts plausi-
bly showing that a challenged law imposes “substantial bur-
dens” on interstate commerce before a court may assess the
Page Proof Pending Publication
law's competing benefts or weigh the two sides against each
other. Brief for Petitioners 44. And, tellingly, the com-
plaint before us fails to clear even that bar.
To appreciate petitioners' problem, compare our case to
Exxon. That case involved a Maryland law prohibiting pe-
troleum producers from operating retail gas stations in the
State. 437 U. S., at 119–121, and n. 1. Because Maryland
had no in-state petroleum producers, Exxon argued, the
law's “divestiture requirements” fell “solely on interstate
companies” and threatened to force some to “withdraw en-
tirely from the Maryland market” or incur new costs to serve
that market. Id., at 125–127. All this, the company said,
amounted to a violation of the dormant Commerce Clause.
This Court found the allegations in Exxon's complaint in-
suffcient as a matter of law to demonstrate a substantial
burden on interstate commerce. Without question, Mary-
land's law favored one business structure (independent gas
station retailers) over another (vertically integrated produc-
tion and retail frms). Ibid. The law also promised to in-
384 NATIONAL PORK PRODUCERS COUNCIL v. ROSS
Opinion of Gorsuch, J.
crease retail gas prices for Maryland consumers, allowing
some to question its “wisdom.” Id., at 124, 128. But, the
Court found, Exxon failed to plead facts leading, “either logi-
cally or as a practical matter, to [the] conclusion that the
State [was] discriminating against interstate commerce.”
Id., at 125. The company failed to do so because, on its face,
Maryland's law welcomed competition from interstate retail
gas station chains that did not produce petroleum. Id., at
125–126. And as far as anyone could tell, the law's “practi-
cal effect” wasn't to protect in-state producers; it was to shift
market share from one set of out-of-state frms (vertically
integrated businesses) to another (retail gas station frms).
Id., at 125, 127. This Court squarely rejected the view that
this predicted “ ``change [in] the market structure' ” would
“impermissibly burde[n] interstate commerce.” Id., at 127.
If the dormant Commerce Clause protects the “interstate
market . . . from prohibitive or burdensome regulations,” the
Page Proof Pending Publication
Court held, it does not protect “particular . . . frms” or “par-
ticular structure[s] or methods of operation.” Id., at 127–
128.
If Maryland's law did not impose a suffcient burden on
interstate commerce to warrant further scrutiny, the same
must be said for Proposition 12. In Exxon, vertically inte-
grated businesses faced a choice: They could divest their pro-
duction capacities or withdraw from the local retail market.
Here, farmers and vertically integrated processors have at
least as much choice: They may provide all their pigs the
space the law requires; they may segregate their operations
to ensure pork products entering California meet its stand-
ards; or they may withdraw from that State's market. In
Exxon, the law posed a choice only for out-of-state frms.
Here, the law presents a choice primarily—but not exclu-
sively—for out-of-state businesses; California does have
some pork producers affected by Proposition 12. See App.
to Pet. for Cert. 205a. In Exxon, as far as anyone could tell,
the law threatened only to shift market share from one set
Cite as: 598 U. S. 356 (2023) 385
Opinion of Gorsuch, J.
of out-of-state frms to another. Here, the pleadings allow
for the same possibility—that California market share pre-
viously enjoyed by one group of proft-seeking, out-of-state
businesses (farmers who stringently confne pigs and proces-
sors who decline to segregate their products) will be re-
placed by another (those who raise and trace Proposition 12-
compliant pork). In both cases, some may question the
“wisdom” of a law that threatens to disrupt the existing
practices of some industry participants and may lead to
higher consumer prices. 437 U. S., at 128. But the dor-
mant Commerce Clause does not protect a “particular struc-
ture or metho[d] of operation.” Id., at 127. That goes for
pigs no less than gas stations.
Think of it another way. Petitioners must plead facts
“plausibly” suggesting a substantial harm to interstate com-
merce; facts that render that outcome a “speculative” possi-
bility are not enough. Bell Atlantic Corp. v. Twombly, 550
U. S. 544, 555, 557 (2007). In an effort to meet this standard,
Page Proof Pending Publication
petitioners allege facts suggesting that certain out-of-state
farmers and processing frms will fnd it diffcult to comply
with Proposition 12 and may choose not to do so. See App.
to Pet. for Cert. 198a, 208a, 313a. But the complaint also
acknowledges that many producers have already converted
to some form of group housing, even if they have not all yet
met Proposition 12's standards. Id., at 186a. From these
facts, the complaint plausibly alleges that some out-of-state
frms may face diffculty complying (or may choose not to
comply) with Proposition 12. But from all anyone can tell,
other out-of-state competitors seeking to enhance their own
profts may choose to modify their existing operations or cre-
ate new ones to fll the void.3
3
Though it is unnecessary to adorn the point, we note that a number of
smaller out-of-state pork producers have fled an amicus brief in this
Court hailing the “opportunities” Proposition 12 affords them to compete
with vertically integrated frms with “ ``concentrated market power' ” that
are wedded to their existing processing practices. Brief for Small and
386 NATIONAL PORK PRODUCERS COUNCIL v. ROSS
Opinion of Gorsuch, J.
Of course, as the complaint alleges, a shift from one set of
production methods to another promises some costs. Id.,at 214a. But the complaint concedes that complying produc-
ers will be able to “pas[s] along” at least “some” of their
increased costs to consumers. Id., at 178a. And no one
thinks that costs ultimately borne by in-state consumers
thanks to a law they adopted counts as a cognizable harm
under our dormant Commerce Clause precedents. See
United Haulers, 550 U. S., at 345 (holding that the dormant
Commerce Clause is not offended by higher prices “likely to
fall upon the very people who voted for the [challenged]
la[w]”). Nor does the complaint allege facts plausibly sug-
gesting that out-of-state consumers indifferent to pork pro-
duction methods will have to pick up the tab (let alone ex-
plain how petitioners might sue to vindicate their interests).
Instead, at least one declaration incorporated by reference
into the complaint avers that some out-of-state consumers
will “not value these changes and will not pay an increased
Page Proof Pending Publication
price.” App. to Pet. for Cert. 335a; see also Brief for Ag-
ricultural and Resource Economics Professors as Amici Cu-
riae 15, 23 (suggesting negligible effect on out-of-state prices
for consumers not interested in Proposition 12-compliant
pork). Further experience may yield further facts. But
the facts pleaded in this complaint merely allege harm to
Independent Farming Businesses et al. as Amici Curiae 1, 12, 19–20.
Other amici have noted that even some large vertically integrated proc-
essing frms have already begun to modify (or else have indicated their
intention to modify) their operations to comply with Proposition 12. See
Brief for Perdue Premium Meat Co., Inc., as Amicus Curiae 3–7; see also
Brief for Economic Research Organizations as Amici Curiae 16–17 (recit-
ing public statements from Hormel, Smithfeld, and Tyson). Another
large processing frm, Cargill, has boasted that, “ ``[b]efore we sold our
pork business in 2015, we led the industry in removing gestation stalls to
house pregnant sows.' ” Id., at 16. Petitioner National Pork Producers
Council lists Cargill as an “allied industry compan[y].” National Pork
Producers Council, Pork Alliance Program, https://nppc.org/get-involved/
join-the-pork-alliance/.
Cite as: 598 U. S. 356 (2023) 387
Opinion of Gorsuch, J.
some producers' favored “methods of operation.” Exxon,
437 U. S., at 127. A substantial harm to interstate com-
merce remains nothing more than a speculative possibility.
Ibid.D
The Chief Justice's concurrence in part and dissent in
part (call it “the lead dissent”) offers a contrasting view.
Correctly, it begins by rejecting petitioners' “almost per se”
rule against laws with extraterritorial effects. Post, at 394.
And correctly, it disapproves reading Pike to endorse a
“freewheeling judicial weighing of benefts and burdens.”
Post, at 395. But for all it gets right, in other respects it
goes astray. In places, the lead dissent seems to advance
a reading of Pike that would permit judges to enjoin the
enforcement of any state law restricting the sale of an ordi-
nary consumer good if the law threatens an “ ``excessive' ”
“har[m] to the interstate market” for that good. Post, at
Page Proof Pending Publication
397–403. It is an approach that would go much further than
our precedents permit. So much further, in fact, that it isn't
clear what separates the lead dissent's approach from others
it purports to reject.
Consider an example. Today, many States prohibit the
sale of horsemeat for human consumption. See Cavel Int'l,
Inc. v. Madigan, 500 F. 3d 551, 552–555 (CA7 2007). But
these prohibitions “har[m] the interstate market” for horse-
meat by denying outlets for its sale. Not only that, they
distort the market for animal products more generally by
pressuring horsemeat manufacturers to transition to differ-
ent products, ones they can lawfully sell nationwide. Under
the lead dissent's test, all it would take is one complaint from
an unhappy out-of-state producer and—presto—the Consti-
tution would protect the sale of horsemeat. Just fnd a
judge anywhere in the country who considers the burden to
producers “ ``excessive.' ” Post, at 402. The same would go
for all manner of consumer products currently banned by
some States but not by others—goods ranging from fre-
388 NATIONAL PORK PRODUCERS COUNCIL v. ROSS
Opinion of Gorsuch, J.
works, see, e. g., Mass. Gen. Laws Ann., ch. 148, § 39 (2020),
to single-use plastic grocery bags, see, e. g., Me. Rev. Stat.
Ann., Tit. 38, §§ 1611(2)(A), (4) (2022). Rather than respect-
ing federalism, a rule like that would require any consumer
good available for sale in one State to be made available in
every State. In the process, it would essentially replicate
under Pike's banner petitioners' “almost per se” rule against
state laws with extraterritorial effects.
Seeking a way around that problem, the lead dissent stum-
bles into another. It suggests that the burdens of Proposi-
tion 12 are particularly “substantial” because California's law
“carr[ies] implications for producers as far fung as Indiana
and North Carolina.” Post, at 399–401. Why is that so?
Justice Kavanaugh's solo concurrence in part and dissent
in part says the quiet part aloud: California's market is so
lucrative that almost any in-state measure will infuence how
out-of-state proft-maximizing frms choose to operate.
Page Proof Pending Publication
Post, at 405–407. But if that makes all the difference, it
means voters in States with smaller markets are constitu-
tionally entitled to greater authority to regulate in-state
sales than voters in States with larger markets. So much
for the Constitution's “fundamental principle of equal sover-
eignty among the States.” Shelby County v. Holder, 570
U. S. 529, 544 (2013) (internal quotation marks omitted).
The most striking feature of both dissents, however, may
be another one. They suggest that, in assessing a state
law's burdens under Pike, courts should take into account
not just economic harms but also all manner of “derivative
harms” to out-of-state interests. Post, at 398–399 (opinion
of Roberts, C. J.). These include social costs that are “dif-
fcult to quantify” such as (in this case) costs to the “national
pig population,” “animal husbandry” traditions, and (again)
“industry practice.” Post, at 399–402; see also post, at 405–
407 (opinion of Kavanaugh, J.). But not even petitioners
read Pike so boldly. While petitioners argue that Proposition
12 does not beneft pigs (as California has asserted), they have
Cite as: 598 U. S. 356 (2023) 389
Opinion of the Court
not asked this Court (or any court) to treat putative harms
to out-of-state animal welfare or other noneconomic interests
as freestanding harms cognizable under the dormant Com-
merce Clause. Nor could they have proceeded otherwise.
Our decisions have authorized claims alleging “burdens on
commerce.” Davis, 553 U. S., at 353. They do not provide
judges “a roving license” to reassess the wisdom of state
legislation in light of any conceivable out-of-state interest,
economic or otherwise. United Haulers, 550 U. S., at 343.4
V
Before the Constitution's passage, Rhode Island imposed
special taxes on imported “New-England Rum”; Connecticut
levied duties on goods “brought into th[e] State, by Land or
Water, from any of the United States of America”; and Vir-
ginia taxed “vessels coming within th[e S]tate from any of
the United States.” An Act Laying Certain Duties of Ex-
cise Upon Certain Articles, Feb. 24, 1783 R. I. Acts and Re-
Page Proof Pending Publication
solves 45; An Act for Levying and Collecting a Duty on Cer-
tain Articles of Goods, Wares and Merchandize Imported
into this State, by Land or Water, 1784 Conn. Acts and Laws
4
Both dissents seek to characterize today's decision as “fractured” in an
effort to advance their own overbroad readings of Pike and layer their
own gloss on opinions they do not join. Post, at 403, 410 (opinion of Kava-
naugh, J.); see also post at 395–397, 401–403 (opinion of Roberts, C. J.).
But the dissents are just that—dissents. Their glosses do not speak for
the Court. Today, the Court unanimously disavows petitioners' “almost
per se” rule against laws with extraterritorial effects. See Parts II and
III, supra. When it comes to Pike, a majority agrees that heartland Pike
cases seek to smoke out purposeful discrimination in state laws (as illumi-
nated by those laws' practical effects) or seek to protect the instrumentali-
ties of interstate transportation. See Part IV–A, supra. A majority also
rejects any effort to expand Pike's domain to cover cases like this one,
some of us for reasons found in Part IV–B, others of us for reasons dis-
cussed in Part IV–C. Today's decision depends equally on the analysis
found in both of these sections; without either, there is no explaining the
Court's judgment affrming the decision below. A majority also sub-
scribes to what follows in Part V.
390 NATIONAL PORK PRODUCERS COUNCIL v. ROSS
Opinion of the Court
271; An Act to Amend the Act for Ascertaining Certain
Taxes and Duties, and for Establishing a Permanent Reve-
nue (May 6, 1782), in 11 Statues at Large, Laws of Virginia
70 (W. Hening ed. 1823).
Whether moved by this experience or merely worried that
more States might join the bandwagon, the Framers
equipped Congress with considerable power to regulate in-
terstate commerce and preempt contrary state laws. See
U. S. Const., Art. I, § 8, cl. 3; Art. IV, § 2; see also Regan, 84
Mich. L. Rev., at 1114, n. 55; A. Abel, The Commerce Clause
in the Constitutional Convention and in Contemporary Com-
ment, 25 Minn. L. Rev. 432, 448–449 (1941). In the years
since, this Court has inferred an additional judicially enforce-
able rule against certain, especially discriminatory, state
laws adopted even against the backdrop of congressional si-
lence. But “ ``extreme caution' ” is warranted before a court
deploys this implied authority. Tracy, 519 U. S., at 310
Page Proof Pending Publication
(quoting Northwest Airlines, Inc. v. Minnesota, 322 U. S. 292,
302 (1944) (Black, J., concurring)). Preventing state offcials
from enforcing a democratically adopted state law in the
name of the dormant Commerce Clause is a matter of “ex-
treme delicacy,” something courts should do only “where the
infraction is clear.” Conway v. Taylor's Executor, 1 Black
603, 634 (1862).
Petitioners would have us cast aside caution for boldness.
They have failed—repeatedly—to persuade Congress to use
its express Commerce Clause authority to adopt a uniform
rule for pork production. And they disavow any reliance on
this Court's core dormant Commerce Clause teachings fo-
cused on discriminatory state legislation. Instead, petition-
ers invite us to endorse two new theories of implied judicial
power. They would have us recognize an “almost per se”
rule against the enforcement of state laws that have “extra-
territorial effects”—even though this Court has recognized
since Gibbons that virtually all state laws create ripple ef-
fects beyond their borders. Alternatively, they would have
Cite as: 598 U. S. 356 (2023) 391
Sotomayor, J., concurring in part
us prevent a State from regulating the sale of an ordinary
consumer good within its own borders on nondiscriminatory
terms—even though the Pike line of cases they invoke has
never before yielded such a result. Like the courts that
faced this case before us, we decline both of petitioners' in-
cautious invitations.
The judgment of the Ninth Circuit is
Affrmed.
Justice Sotomayor, with whom Justice Kagan joins,
concurring in part.
I join all but Parts IV–B and IV–D of Justice Gorsuch's
opinion. Given the fractured nature of Part IV, I write sep-
arately to clarify my understanding of why petitioners' Pike
claim fails. In short, I vote to affrm the judgment because
petitioners fail to allege a substantial burden on interstate
commerce as required by Pike, not because of any fundamen-
tal reworking of that doctrine.
Page Proof Pending Publication
* * *
In Pike v. Bruce Church, Inc., 397 U. S. 137 (1970), the
Court distilled a general principle from its prior cases.
“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 re-
lation to the putative local benefts.” Id., at 142. 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.” Ibid.As the Court's opinion here explains, Pike's balancing and
tailoring principles are most frequently deployed to detect
the presence or absence of latent economic protectionism.
See ante, at 377–380. That is no surprise. Warding off
state discrimination against interstate commerce is at the
392 NATIONAL PORK PRODUCERS COUNCIL v. ROSS
Sotomayor, J., concurring in part
heart of our dormant Commerce Clause jurisprudence. See
ante, at 369, 371–373, 377–378.
As the Court's opinion also acknowledges, however, the
Court has “generally le[ft] the courtroom door open” to
claims premised on “even nondiscriminatory burdens.” De-
partment of Revenue of Ky. v. Davis, 553 U. S. 328, 353
(2008); see ante, at 379. Indeed, “a small number” of this
Court's cases in the Pike line “have invalidated state laws
. . . that appear to have been genuinely nondiscriminatory”
in nature. General Motors Corp. v. Tracy, 519 U. S. 278, 298,
n. 12 (1997); see ante, at 379. Often, such cases have ad-
dressed state laws that impose burdens on the arteries of
commerce, on “trucks, trains, and the like.” Ibid., n. 2.
Yet, there is at least one exception to that tradition. See
Edgar v. MITE Corp., 457 U. S. 624, 643–646 (1982) (invali-
dating a nondiscriminatory state law that regulated tender
offers to shareholders).
Page Proof Pending Publication
Pike claims that do not allege discrimination or a burden
on an artery of commerce are further from Pike's core. As
The Chief Justice recognizes, however, the Court today
does not shut the door on all such Pike claims. See ante, at
379–380, and n. 2; post, at 395–396. Thus, petitioners' fail-
ure to allege discrimination or an impact on the instrumen-
talities of commerce does not doom their Pike claim.
Nor does a majority of the Court endorse the view that
judges are not up to the task that Pike prescribes. Justice
Gorsuch, for a plurality, concludes that petitioners' Pike
claim fails because courts are incapable of balancing eco-
nomic burdens against noneconomic benefts. See ante, at
380–383. I do not join that portion of Justice Gorsuch's
opinion. I acknowledge that the inquiry is diffcult and deli-
cate, and federal courts are well advised to approach the
matter with caution. See ante, at 390. Yet, I agree with
The Chief Justice that courts generally are able to weigh
disparate burdens and benefts against each other, and that
they are called on to do so in other areas of the law with
Cite as: 598 U. S. 356 (2023) 393
Barrett, J., concurring in part
some frequency. See post, at 396–397. The means-ends
tailoring analysis that Pike incorporates is likewise familiar
to courts and does not raise the asserted incommensurability
problems that trouble Justice Gorsuch.
In my view, and as Justice Gorsuch concludes for a sepa-
rate plurality of the Court, petitioners' Pike claim fails for a
much narrower reason. Reading petitioners' allegations in
light of the Court's decision in Exxon Corp. v. Governor of
Maryland, 437 U. S. 117 (1978), the complaint fails to allege
a substantial burden on interstate commerce. See ante, at
383–387. Alleging a substantial burden on interstate com-
merce is a threshold requirement that plaintiffs must satisfy
before courts need even engage in Pike's balancing and tai-
loring analyses. Because petitioners have not done so, they
fail to state a Pike claim.
Justice Barrett, concurring in part.
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A state law that burdens interstate commerce in clear ex-
cess of its putative local benefts funks Pike balancing.
Pike v. Bruce Church, Inc., 397 U. S. 137, 142 (1970). In
most cases, Pike's “general rule” refects a commonsense
principle: Where there's smoke, there's fre. Ibid. 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 benefts and burdens, it is axiomatic that both
must be judicially cognizable and comparable. See Depart-
ment of Revenue of Ky. v. Davis, 553 U. S. 328, 354–355
(2008). I agree with Justice Gorsuch that the benefts
and burdens of Proposition 12 are incommensurable. Cali-
fornia's interest in eliminating allegedly inhumane products
from its markets cannot be weighed on a scale opposite dol-
lars and cents—at least not without second-guessing the
moral judgments of California voters or making the kind of
policy decisions reserved for politicians. Ante, at 380–383;
394 NATIONAL PORK PRODUCERS COUNCIL v. ROSS
Opinion of Roberts, C. J.
Davis, 553 U. S., at 360 (Scalia, J., concurring in part). None
of our Pike precedents requires us to attempt such a feat.
That said, I disagree with my colleagues who would hold
that petitioners have failed to allege a substantial burden
on interstate commerce. Ante, at 383–387; ante, at 393 (So-
tomayor, J., concurring in part). The complaint plausibly
alleges that Proposition 12's costs are pervasive, burden-
some, and will be felt primarily (but not exclusively) outside
California. See post, at 399–400 (Roberts, C. J., concurring
in part and dissenting in part). For this reason, I do not
join Part IV–C of Justice Gorsuch's opinion. If the bur-
dens and benefts were capable of judicial balancing, I would
permit petitioners to proceed with their Pike claim.
Chief Justice Roberts, with whom Justice Alito,
Justice Kavanaugh, and Justice Jackson join, concurring
in part and dissenting in part.
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I agree with the Court's view in its thoughtful opinion that
many of the leading cases invoking the dormant Commerce
Clause are properly read as invalidating statutes that pro-
moted economic protectionism. See ante, at 371–373. I
also agree with the Court's conclusion that our precedent
does not support a per se rule against state laws with “extra-
territorial” effects. See ante, at 373–376. But I cannot
agree with the approach adopted by some of my colleagues
to analyzing petitioners' claim based on Pike v. Bruce
Church, Inc., 397 U. S. 137, 142 (1970). See ante, at 377–380
(majority opinion); ante, at 380–389 (opinion of Gorsuch, J.);
ante, at 393 (Sotomayor, J., concurring in part); ante, at 393–
394 (Barrett, J., concurring in part).
Pike provides that nondiscriminatory state regulations are
valid under the Commerce Clause “unless the burden im-
posed on [interstate] commerce is clearly excessive in rela-
tion to the putative local benefts.” 397 U. S., at 142. A
majority of the Court thinks that petitioners' complaint does
not make for “an auspicious start” on that claim. Ante, at
Cite as: 598 U. S. 356 (2023) 395
Opinion of Roberts, C. J.
380. In my view, that is through no fault of their own. The
Ninth Circuit misapplied our existing Pike jurisprudence in
evaluating petitioners' allegations. I would fnd that peti-
tioners have plausibly alleged a substantial burden against
interstate commerce, and would therefore vacate the judg-
ment and remand the case for the court below to decide
whether petitioners have stated a claim under Pike.
I
The Ninth Circuit stated that “[w]hile the dormant Com-
merce Clause is not yet a dead letter, it is moving in that
direction.” 6 F. 4th 1021, 1033 (2021). Today's majority
does not pull the plug. For good reason: Although Pike
is susceptible to misapplication as a freewheeling judicial
weighing of benefts and burdens, it also refects the basic
concern of our Commerce Clause jurisprudence that there be
“free private trade in the national marketplace.” General
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Motors Corp. v. Tracy, 519 U. S. 278, 287 (1997) (quoting
Reeves, Inc. v. Stake, 447 U. S. 429, 437 (1980)); see also Hunt
v. Washington State Apple Advertising Comm'n, 432 U. S.
333, 350 (1977) (Pike protects “a national ``common market' ”).
“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 mar-
ket in the Nation, that no home embargoes will withhold
his exports, and no foreign state will by customs duties or
regulations exclude them.” H. P. Hood & Sons, Inc. v. Du
Mond, 336 U. S. 525, 539 (1949).
The majority's discussion of our Pike jurisprudence high-
lights two types of cases: those involving discriminatory
state laws and those implicating the “instrumentalities of in-
terstate transportation.” Ante, at 379, n. 2. But Pike has
not been so narrowly typecast. As a majority of the Court
acknowledges, “we generally leave the courtroom door open
to plaintiffs invoking the rule in Pike, that even nondiscrimi-
natory burdens on commerce may be struck down on a show-
396 NATIONAL PORK PRODUCERS COUNCIL v. ROSS
Opinion of Roberts, C. J.
ing that those burdens clearly outweigh the benefts of a
state or local practice.” Department of Revenue of Ky. v.
Davis, 553 U. S. 328, 353 (2008); see also United Haulers
Assn., Inc. v. Oneida-Herkimer Solid Waste Management
Authority, 550 U. S. 330, 346 (2007) (plurality opinion) (Pike
applies to “a nondiscriminatory statute like this one”). Nor
have our cases applied Pike only where a State regulates the
instrumentalities of transportation. Pike itself addressed an
Arizona law regulating cantaloupe packaging. See 397 U. S.,
at 138. And we have since applied Pike to invalidate nondis-
criminatory state laws that do not concern transportation.
Edgar v. MITE Corp., 457 U. S. 624, 643–646 (1982). As a
majority of the Court agrees, Pike extends beyond laws
either concerning discrimination or governing interstate
transportation. See ante, at 392 (opinion of Sotomayor, J.);
post, at 403 (Kavanaugh, J., concurring in part and dissent-
ing in part).
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Speaking for three Members of the Court, Justice Gor-
such objects that balancing competing interests under Pike
is simply an impossible judicial task. See ante, at 380–383.
I certainly appreciate the concern, see United Haulers, 550
U. S., at 343, 347, but sometimes there is no avoiding the
need to weigh seemingly incommensurable values. See,
e. g., Schneider v. State (Town of Irvington), 308 U. S. 147,
162 (1939) (weighing “the purpose to keep the streets clean
and of good appearance” against the “the constitutional pro-
tection of the freedom of speech and press”); Winston v. Lee,
470 U. S. 753, 760 (1985) (“The reasonableness” under the
Fourth Amendment “of surgical intrusions beneath the skin
depends on a case-by-case approach, in which the individual's
interests in privacy and security are weighed against soci-
ety's interests in conducting the procedure.”); Addington v.
Texas, 441 U. S. 418, 425 (1979) (“In considering what stand-
ard should govern in a civil commitment proceeding, we must
assess both the extent of the individual's interest in not being
involuntarily confned indefnitely and the state's interest in
Cite as: 598 U. S. 356 (2023) 397
Opinion of Roberts, C. J.
committing the emotionally disturbed under a particular
standard of proof.”). Here too, a majority of the Court agrees
that it is possible to balance benefts and burdens under the
approach set forth in Pike. See ante, at 392–393 (opinion of
Sotomayor, J.); post, at 403 (opinion of Kavanaugh, J.).
II
This case comes before us on a Federal Rule of Civil Proce-
dure 12(b)(6) motion to dismiss, and in my view the court
below erred in how it analyzed petitioners' allegations under
Pike. The Ninth Circuit reasoned that “[f]or dormant Com-
merce Clause purposes, laws that increase compliance costs,
without more, do not constitute a signifcant burden on inter-
state commerce.” 6 F. 4th, at 1032. The panel then dis-
missed petitioners' claim under Pike by concluding that the
complaint alleged only an increase in compliance costs due
to Proposition 12. 6 F. 4th, at 1033. But, as I read it, the
complaint alleges more than simply an increase in “compli-
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ance costs,” unless such costs are defned 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 there-
fore fnd that petitioners have stated a substantial burden
against interstate commerce, vacate the judgment below, and
remand this case for the Ninth Circuit to consider whether
petitioners have plausibly claimed that the burden alleged
outweighs any “putative local benefts” under Pike. 397
U. S., at 142.
A
Our precedents have long distinguished the costs of com-
plying with a given state regulation from other economic
harms to the interstate market. Bibb v. Navajo Freight
Lines, Inc., 359 U. S. 520 (1959), illustrates the point. In
that case, we considered an Illinois law requiring that trucks
and trailers use a particular kind of mudguard. The “cost
398 NATIONAL PORK PRODUCERS COUNCIL v. ROSS
Opinion of Roberts, C. J.
of installing” the mudguards was “$30 or more per vehicle,”
amounting to “$4,500 to $45,840” for the trucking companies
at issue. Id., at 525. But beyond documenting those direct
costs of complying with the Illinois law, we also noted other
derivative harms fowing from the regulation. The mud-
guard rule threatened “signifcant delay in an operation
where prompt movement may be of the essence.” Id., at
527. Also, changing mudguard types when crossing into Il-
linois from a State with a different standard would require
“two to four hours of labor” and could prove “exceedingly
dangerous.” Ibid. We concluded that “[c]ost taken into
consideration” together with those “other factors” could con-
stitute a burden on interstate commerce. Id., at 526 (em-
phasis added). Subsequent cases followed Bibb's logic by
analyzing economic impact to the interstate market sepa-
rately from immediate costs of compliance. See Kassel v.
Consolidated Freightways Corp. of Del., 450 U. S. 662, 674
(1981) (plurality opinion) (separating “increas[ed] . . . costs”
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from the fact that the challenged “law may aggravate . . .
the problem of highway accidents” in describing the burden
on interstate commerce); Raymond Motor Transp., Inc. v.
Rice, 434 U. S. 429, 445, and n. 21 (1978) (analyzing an in-
crease in “cost” independently of other consequential effects,
such as “slow[ing] the movement of goods”).
Pike itself did not confate harms to the interstate market
with compliance costs. In Pike, we analyzed an Arizona law
requiring that cantaloupes grown in the State be packed
prior to shipment across state lines. 397 U. S., at 138. We
noted repeatedly that the regulation would require the ap-
pellee to construct an unneeded packing facility in Arizona
at a cost of $200,000. Id., at 140, 144, 145. But we consid-
ered that cost together with the “nature” of a regulation
“requiring business operations to be performed in the home
State.” Id., at 145. The Court in Pike found both compli-
ance costs and consequential market harms cognizable in de-
termining whether the law at issue impermissibly burdened
interstate commerce.
Cite as: 598 U. S. 356 (2023) 399
Opinion of Roberts, C. J.
The derivative harms we have long considered in this con-
text are in no sense “noneconomic.” Ante, at 389 (opinion
of Gorsuch, J.). Regulations that “aggravate . . . the prob-
lem of highway accidents,” Kassel, 450 U. S., at 674, or “slow
the movement of goods,” Rice, 434 U. S., at 445, impose eco-
nomic burdens, even if those burdens may be diffcult to
quantify and may not arise immediately. Our cases provide
no license to chalk up every economic harm—no matter how
derivative—to a mere cost of compliance.
Nor can the foregoing cases be dismissed because they
either involved the instrumentalities of transportation or
a state law born of discriminatory purpose. As discussed
above, we have applied Pike to state laws that neither con-
cerned transportation nor discriminated against commerce.
See Edgar, 457 U. S., at 643–646. The Pike balance may
well come out differently when it comes to interstate trans-
portation, an area presenting a strong interest in “national
uniformity.” Tracy, 519 U. S., at 298, n. 12. But the error
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below does not concern a particular balancing of interests
under Pike; it concerns how to analyze the burden on inter-
state commerce in the frst place.
B
As in our prior cases, petitioners here allege both compli-
ance costs and consequential harms to the interstate market.
With respect to compliance costs, petitioners allege that
Proposition 12 demands signifcant capital expenditures for
farmers who wish to sell into California. “Producers . . .
will need to spend” between $290 and $348 million “of addi-
tional capital in order to reconstruct their sow housing and
overcome the productivity loss that Proposition 12 imposes.”
App. to Pet. for Cert. 214a. All told, compliance will “in-
crease production costs per pig by over $13 dollars per head,
a 9.2% cost increase at the farm level.” Ibid.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 pro-
400 NATIONAL PORK PRODUCERS COUNCIL v. ROSS
Opinion of Roberts, C. J.
ducers 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.” Id., at 213a, 239a. 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
fung as Indiana and North Carolina, whether or not they
sell in California. The panel below acknowledged petition-
ers' allegation that, “[a]s a practical matter, given the inter-
connected nature of the nationwide pork industry, all or most
hog farmers will be forced to comply with California require-
ments.” 6 F. 4th, at 1028.
We have found such sweeping extraterritorial effects, even
if not considered as a per se invalidation, to be pertinent in
applying Pike. In Edgar, we assessed the constitutionality
of an Illinois corporate takeover statute that authorized the
secretary of state to scrutinize tender offers, even for trans-
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actions occurring wholly beyond the State's borders. As the
majority explains, only a plurality of the Court in Edgar
concluded that the Illinois statute constituted a per se viola-
tion of the dormant Commerce Clause. See ante, at 376,
n. 1. But a majority in Edgar analyzed those same extrater-
ritorial effects under our approach in Pike, concluding that
the “nationwide reach” of Illinois's law constituted an “obvi-
ous burden . . . on interstate commerce.” 457 U. S., at 643.
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” similar to the regulation at issue in
Edgar.
The complaint further alleges other harms that cannot
fairly be characterized as mere costs of compliance but that
the panel below seems to have treated as such. Because of
Proposition 12's square footage requirements, farms will be
compelled to adopt group housing, which is likely to produce
“worse health outcome[s]” and “sprea[d] pathogens and dis-
Cite as: 598 U. S. 356 (2023) 401
Opinion of Roberts, C. J.
ease.” App. to Pet. for Cert. 229a. Such housing changes
will also “upen[d] generations of animal husbandry, training,
and knowledge.” Id., at 211a. And “[b]y preventing the
use of breeding stalls during the 30 to 40 day period between
weaning and confrmation of pregnancy, Proposition 12 puts
sows at greater risk of injury and stress during the vulnera-
ble stages of breeding and gestation.” Id., at 223a. These
consequential threats to animal welfare and industry prac-
tice are diffcult to quantify and are not susceptible to catego-
rization as mere costs of compliance.
Writing for a plurality of the Court, Justice Gorsuch
relies on this Court's decision in Exxon Corp. v. Governor of
Maryland, 437 U. S. 117 (1978), to conclude that petitioners'
complaint does not plead a substantial burden against inter-
state commerce. See ante, at 383–387; see also ante, at 393
(opinion of Sotomayor, J.) (also relying on Exxon). In
Exxon, petroleum producers sued after Maryland prohibited
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their sale of retail gas within the State. 437 U. S., at 119.
The Court concluded that “interstate commerce is not sub-
jected to an impermissible burden simply because an oth-
erwise valid regulation causes some business[es] to shift
from one interstate supplier to another.” Id., at 127. Fair
enough. But the complaint before us pleads facts going far
beyond the allegations in Exxon. The producers in Exxon
operated within Maryland and wished to continue doing so.
By contrast, 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 prac-
tices. In my view, these allegations amount to economic
harms against “the interstate market”—not just “particular
interstate frms,” ibid.—such that they constitute a substan-
tial burden under Pike. At the very least, the harms al-
leged by petitioners are categorically different from the cost
of installing $30 mudguards, Bibb, 359 U. S., at 525, or of
402 NATIONAL PORK PRODUCERS COUNCIL v. ROSS
Opinion of Roberts, C. J.
constructing a $200,000 cantaloupe packing facility, Pike, 397
U. S., at 140.
Justice Gorsuch asks what separates my approach from
the per se extraterritoriality rule I reject. Ante, at 387. It
is the difference between mere cross-border effects and
broad impact requiring, in this case, compliance even by pro-
ducers who do not wish to sell in the regulated market.
And even then, we only invalidate a regulation if that burden
proves “clearly excessive in relation to the putative local
benefts.” Pike, 397 U. S., at 142. Adhering to that estab-
lished approach in this case would not convert the inquiry
into a per se rule against extraterritorial regulation.
Rather than analyze petitioners' alleged harms to the in-
terstate market on their own terms, the Ninth Circuit
reasoned that the “crux” of the complaint is “the cost of
compliance with Proposition 12.” 6 F. 4th, at 1033. Such
“cost increases,” the panel below concluded, “do not qualify
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as a substantial burden to interstate commerce.” Ibid.
Those statements ignore the industry-wide harms discussed
above.
The panel below itself recognized that petitioners “plausi-
bly alleged that Proposition 12 will have dramatic upstream
effects and require pervasive changes to the pork production
industry nationwide.” Ibid. Yet it nevertheless reduced
the myriad harms detailed by petitioners in their complaint
to so-called “compliance costs” and wrote them off as inde-
pendently insuffcient to state a claim under Pike. Our
precedents do not support such an approach. A majority of
the Court agrees that—were it possible to balance benefts
and burdens in this context—petitioners have plausibly
stated a substantial burden against interstate commerce.
See ante, at 394 (opinion of Barrett, J.) (“The complaint
plausibly alleges that Proposition 12's costs are pervasive,
burdensome, and will be felt primarily (but not exclusively)
outside California.”).
Cite as: 598 U. S. 356 (2023) 403
Opinion of Kavanaugh, J.
* * *
In my view, petitioners plausibly allege a substantial bur-
den against interstate commerce. I would therefore remand
the case for the Ninth Circuit to decide whether it is plausi-
ble that the “burden . . . is clearly excessive in relation to
the putative local benefts.” Pike, 397 U. S., at 142.
Justice Kavanaugh, concurring in part and dissenting
in part.
In today's fractured decision, six Justices of this Court af-
frmatively retain the longstanding Pike balancing test for
analyzing dormant Commerce Clause challenges to state eco-
nomic regulations. Ante, at 391–392 (Sotomayor, J., joined
by Kagan, J., concurring in part); ante, at 395–396 (Rob-
erts, C. J., joined by Alito, Kavanaugh, and Jackson, JJ.,
concurring in part and dissenting in part); see Pike v. Bruce
Church, Inc., 397 U. S. 137 (1970). Although Parts IV–B
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and IV–D of Justice Gorsuch's opinion would essentially
overrule the Pike balancing test, those subsections are not
controlling precedent, as I understand it.
But Part IV–C of Justice Gorsuch's opinion is control-
ling precedent for purposes of the Court's judgment as to
the plaintiffs' Pike claim. There, a four-Justice plurality of
the Court applies Pike and rejects the plaintiffs' dormant
Commerce Clause challenge under Pike. The plurality rea-
sons that the plaintiffs' complaint did not suffciently allege
that the California law at issue here imposed a substantial
burden on interstate commerce under Pike. I respectfully
disagree with that conclusion for the reasons well stated in
The Chief Justice's separate opinion.1
I add this opinion to point out that state economic regula-
tions like California's Proposition 12 may raise questions not
1
The Court also unanimously rejects plaintiffs' separate claim under
Healy v. Beer Institute, 491 U. S. 324 (1989).
404 NATIONAL PORK PRODUCERS COUNCIL v. ROSS
Opinion of Kavanaugh, J.
only under the Commerce Clause, but also under the Import-
Export Clause, the Privileges and Immunities Clause, and
the Full Faith and Credit Clause.
I
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 pro-
mote the general welfare. By the summer of 1787, when
the delegates met in Philadelphia, state interference with
interstate commerce was cutting off the lifeblood of the Na-
tion. See Tennessee Wine and Spirits Retailers Assn. v.
Thomas, 588 U. S. –––, ––– (2019). For the delegates, there-
fore, “removing state trade barriers was a principal reason
for the adoption of the Constitution.” Ibid. In the state
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ratifying conventions, moreover, “fostering free trade among
the States was prominently cited as a reason for ratifcation.”
Id., at –––.
The Constitution crafted by the Framers contains several
provisions protecting free trade among the States. The
Constitution's protection of free trade among the States has
resulted in an extraordinary 234-year record of progress: It
has facilitated robust economic activity within the United
States and has helped generate remarkable (albeit at times
uneven) economic prosperity and growth in America relative
to the other nations of the world.
This case involves the American pork industry, which
today is a $20 billion-plus industry that generates hundreds
of thousands of American jobs and serves millions of Ameri-
can consumers. Importantly for this case, the vast majority
of pig farms are located in States other than California—
such as Iowa, Minnesota, Illinois, Indiana, and North Caro-
lina. And the vast majority of pork is likewise produced in
States other than California.
Cite as: 598 U. S. 356 (2023) 405
Opinion of Kavanaugh, J.
In 2018, California voters nonetheless passed a ballot ini-
tiative, 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. Under Proposition 12, all pork sold to consumers in
California must be derived from pigs raised in compliance
with California's strict standards for pig farming, including
California's minimum square footage of space required for
housing individual pigs. By its terms, Proposition 12 ap-
plies to pigs raised and pork produced outside California.
California's requirements for pig farms and pork produc-
tion depart signifcantly from common agricultural practices
that are lawful in major pig-farming and pork-producing
States such as Iowa, Minnesota, Illinois, Indiana, and North
Carolina. See Brief for Indiana et al. as Amici Curiae 24–
32. Moreover, according to various amici, some of the sci-
entifc literature suggests that California's requirements
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could worsen animal health and welfare. See, e. g., Brief for
American Association of Swine Veterinarians as Amicus Cu-
riae 4–19; Brief for State Pork Producers Association of
Iowa et al. as Amici Curiae 25–34. Regardless of whether
the amici are correct on that point, it is evident that absent
California's Proposition 12, relatively few pig farmers and
pork producers in the United States would follow the prac-
tices that California now demands. Yet American pig farm-
ers 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 else-
where. 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
406 NATIONAL PORK PRODUCERS COUNCIL v. ROSS
Opinion of Kavanaugh, J.
(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 nation-
wide. The increased costs may also result in lower wages
and reduced benefts (or layoffs) for the American workers
who work on pig farms and in meatpacking plants. See gen-
erally Brief for Indiana et al. as Amici Curiae 29–32; Brief
for North Carolina Chamber Legal Institute et al. as Amici
Curiae 9–13.2
In short, through Proposition 12, California is forcing mas-
sive changes to pig-farming and pork-production practices
throughout the United States. Proposition 12 therefore
substantially burdens the interstate pork market. See ante,
at 399–403 (opinion of Roberts, C. J.).
Under the Constitution, Congress could enact a national
law imposing minimum space requirements or other regula-
tions on pig farms involved in the interstate pork market.
In the absence of action by Congress, each State may of
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course adopt health and safety regulations for products
sold in that State. And each State may regulate as it sees
ft 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 pro-
2
The majority opinion dismisses this case as not presenting a “weighty”
issue. Ante, at 364. That phrasing is misplaced. This case presents a
weighty constitutional question, as the Framers surely would have recog-
nized. And it is important for the American workers, farmers, and con-
sumers who will be signifcantly affected by the outcome of today's
decision.
Cite as: 598 U. S. 356 (2023) 407
Opinion of Kavanaugh, J.
pounded 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 ap-
proach undermines federalism and the authority of individ-
ual 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 con-
fned 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?
Brief for Indiana et al. as Amici Curiae 33. 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
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abortions)? Ibid.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 prefer-
ences—and in doing so, effectively force other States to reg-
ulate in accordance with those idiosyncratic state demands.
That is not the Constitution the Framers adopted in Phila-
delphia in 1787.3
3
The portions of Justice Gorsuch's opinion that speak for only three
Justices (Parts IV–B and IV–D) refer to The Chief Justice's opinion as
a “dissent.” Ante, at 380–383, 387–389. But on the question of whether
to retain the Pike balancing test in cases like this one, The Chief Jus-
tice's opinion refects the majority view because six Justices agree to
retain the Pike balancing test: The Chief Justice and Justices Alito,
Sotomayor, Kagan, Kavanaugh, and Jackson. On that legal issue,
Justice Gorsuch's opinion advances a minority view.
408 NATIONAL PORK PRODUCERS COUNCIL v. ROSS
Opinion of Kavanaugh, J.
II
Thus far, legal challenges to California's Proposition 12
have focused on the Commerce Clause and this Court's dor-
mant Commerce Clause precedents.
Although the Court today rejects the plaintiffs' dormant
Commerce Clause challenge as insuffciently pled, state laws
like Proposition 12 implicate not only the Commerce Clause,
but also potentially several other constitutional provisions,
including the Import-Export Clause, the Privileges and Im-
munities Clause, and the Full Faith and Credit Clause.
First, the Import-Export Clause prohibits any State, ab-
sent “the Consent of the Congress,” from imposing “any Im-
posts or Duties on Imports or Exports, except what may be
absolutely necessary for executing” its “inspection Laws.”
Art. I, § 10, cl. 2. This Court has limited that Clause to im-
ports from foreign countries. See Woodruff v. Parham, 8
Wall. 123, 133–136 (1869). As Justice Scalia and Justice
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Thomas have explained, that limitation may be mistaken as
a matter of constitutional text and history: Properly inter-
preted, 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. Comptroller of Treasury of Md. v.
Wynne, 575 U. S. 542, 573 (2015) (Scalia, J., dissenting); see
also Camps Newfound/Owatonna, Inc. v. Town of Harrison,
520 U. S. 564, 621–637 (1997) (Thomas, J., dissenting); Brown
v. Maryland, 12 Wheat. 419, 438−439, 449 (1827).
In other words, if one State conditions sale of a good on
the use of preferred farming, manufacturing, or production
practices in another State where the good was grown or
made, serious questions may arise under the Import-Export
Clause. I do not take a position here on whether such
an argument ultimately would prevail. 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 Privi-
Cite as: 598 U. S. 356 (2023) 409
Opinion of Kavanaugh, J.
leges and Immunities of Citizens in the several States.”
Art. IV, § 2, cl. 1; see South Dakota v. Wayfair, Inc., 585
U. S. –––, ––– – ––– (2018) (Gorsuch, J., concurring); see also
Tyler Pipe Industries, Inc. v. Washington State Dept. of
Revenue, 483 U. S. 232, 265 (1987) (Scalia, J., concurring in
part and dissenting in part); J. Eule, Laying the Dormant
Commerce Clause To Rest, 91 Yale L. J. 425, 446−448 (1982).
Under this Court's precedents, one State's efforts to ef-
fectively regulate farming, manufacturing, or production in
other States could raise signifcant questions under that
Clause. Again, I express no view on whether such an argu-
ment ultimately would prevail. But the issue warrants fur-
ther 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.” Art. IV, § 1. That Clause prevents
States from “adopting any policy of hostility to the public
Acts” of another State. Carroll v. Lanza, 349 U. S. 408, 413
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(1955). A State's effort to regulate farming, manufacturing,
and production practices in another State (in a manner dif-
ferent from how that other State's laws regulate those prac-
tices) could in some circumstances raise questions under that
Clause. See, e. g., M. Rosen, State Extraterritorial Powers
Reconsidered, 85 Notre Dame L. Rev. 1133, 1153 (2010)
(“[T]he Full Faith and Credit Clause is the more natural
source for limitations on state extraterritorial powers be-
cause that clause at its core is concerned with extraterritori-
ality”); see also D. Laycock, Equal Citizens of Equal and Ter-
ritorial States: The Constitutional Foundations of Choice of
Law, 92 Colum. L. Rev. 249, 290, 296−301 (1992).
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. Brief for Petitioners 30–
31; see Ohio Admin. Code §§ 901:12−8−02(G)(4), (5) (2011).
If so, the Full Faith and Credit Clause might preclude Cali-
fornia from enacting conficting regulations on Ohio pig
farmers.
410 NATIONAL PORK PRODUCERS COUNCIL v. ROSS
Opinion of Kavanaugh, J.
Once again, I express no view on whether such an argu-
ment ultimately would succeed. But the question deserves
further examination in a future case.
* * *
As I understand it, the controlling plurality of the Court
(refected in Part IV–C of Justice Gorsuch’s opinion) today
rejects the plaintiffs' dormant Commerce Clause challenge
on the ground that the plaintiffs' complaint does not suff-
ciently allege that the California law at issue here imposes a
substantial burden on interstate commerce under Pike. See
ante, at 383–387 (plurality opinion); ante, at 391–393 (opinion
of Sotomayor, J.). It appears, therefore, that properly pled
dormant Commerce Clause challenges under Pike to laws
like California's Proposition 12 (or even to Proposition 12 it-
self) could succeed in the future—or at least survive past the
motion-to-dismiss stage. Regardless, it will be important in
future cases to consider that state laws like Proposition 12
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also may raise substantial constitutional questions under
the Import-Export Clause, the Privileges and Immunities
Clause, and the Full Faith and Credit Clause.
Reporter’s Note
The attached opinion has been revised to refect the usual publication
and citation style of the United States Reports. The revised pagination
makes available the offcial United States Reports citation in advance of
publication. The syllabus has been prepared by the Reporter of Decisions
for the convenience of the reader and constitutes no part of the opinion of
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the Court. A list of counsel who argued or fled briefs in this case, and
who were members of the bar of this Court at the time this case was
argued, has been inserted following the syllabus. Other revisions may
include adjustments to formatting, captions, citation form, and any errant
punctuation. The following additional edits were made:
p. 356, line 8 from bottom, “6 4th 1021” is replaced with “6 F. 4th 1021”
p. 397, line 10 from bottom, “interests” is replaced with “benefts”