The "Horizontal Separation of Powers" After National Pork Producers Council v. Ross

Abstract

The Supreme Court’s decision in National Pork Producers Council v. Ross (NPPC) held that California’s Proposition 12—which forbids the sale of whole pork meat in the state from pigs born of sows confined “in a cruel manner”—does not violate the dormant Commerce Clause. Specifically, the Court held that California’s law neither regulates “extraterritorially” (even though more than 99% of the pork sold in California is produced in other states) nor imposes an “undue burden” on interstate commerce. While the Court’s rationale in NPPC was somewhat fractured, the decision established some important points. First, a state law’s out-of-state “practical effects,” standing alone, cannot render it impermissibly extraterritorial. And this territorial limitation on a state’s legislative authority—whatever its exact content—is unrelated to the Commerce Clause; it stems not from any particular clause, but from the Constitution’s structure as a whole. Second, NPPC reaffirmed the continuing vitality of the so-called “Pike balancing” test. This means—despite some justices’ concerted efforts to jettison the test—courts are still to assess whether nondiscriminatory state laws violate the dormant Commerce Clause by asking whether their burdens on interstate commerce are “clearly excessive” relative to their putative local benefits. And this test applies to all nondiscriminatory laws, not just those that are pretext for economic protectionism or that involve instrumentalities of interstate commerce.

What may be more notable, however, are two important “horizontal separation of powers” issues NPPC studiously avoided. One concerns when exactly a state can directly regulate out-of-state activity. Can states regulate their own residents’ conduct while they are temporarily outside the state? And what sort of in-state effects are sufficient to justify the regulation of out-of-state conduct? A second concerns whether it is constitutionally legitimate for a state to seek to influence activity occurring in other states, for reasons unrelated to its in-state effects. Can a state aim to alter extraterritorial private conduct, or to pressure other states into changing their public policies, on the ground they are (in the eyes of the enacting state) morally abhorrent? These questions are particularly salient after Dobbs v. Jackson Women’s Health Org., as various states seek to reinforce their abortion bans or, alternatively, become reproductive rights “sanctuaries.” And they may soon be quite pressing, as the nation’s federalism disputes increasingly center on ideological conflicts over matters like immigration, climate change, gun regulation, and abortion, rather than old-fashioned economic protectionism.

Keywords: Constitutional law, Federalism, Commerce Clause, State and Local Taxation