In 2018, Californians voted to approve the Farm Animal Confinement Initiative, or Proposition 12, which banned the sale in California of pork meat that was produced using extreme methods of animal confinement. Industry groups filed a lawsuit to overturn Proposition 12, arguing that it is unconstitutional under the “dormant Commerce Clause,” a doctrine that limits states’ ability to pass laws that affect interstate commerce. The industry groups claimed that complying with Proposition 12 would be costly for pork producers, and that this cost outweighed the benefits of the law. They also claim that because the pork industry is integrated nationwide, and because California is a large buyer of pork, producers outside California would be forced to comply with California’s standards because it would be inconvenient to implement different methods for meat going to different states.

After a federal district court dismissed the lawsuit, and the U.S. Court of Appeals for the Ninth Circuit affirmed that decision, and the Supreme Court agreed to hear the case. In August 2022, CAC filed an amici curiae brief in support of California on behalf of law professors Barry Friedman and Daniel T. Deacon, who published an influential study of the origins and development of the dormant Commerce Clause doctrine.

Examining constitutional history and Supreme Court precedent, our brief showed that the dormant Commerce Clause doctrine is aimed at preventing states from engaging in economic protectionism—from attempting to benefit a state’s own industry and finances by discriminating against the products of other states. Because Proposition 12 is neither protectionist nor discriminatory, it does not violate the Constitution, and there is no basis for the Court to overturn the will of California’s voters by striking it down.

As our brief explained, the Commerce Clause was the Framers’ response to rampant economic protectionism by states under the Articles of Confederation, a problem that was jeopardizing the survival of the nation. Because the federal government lacked the power to regulate commerce, each state adopted its own commercial policies that served its own interests. This quickly led to trade wars in which states targeted other states’ products with discriminatory burdens, creating economic rivalries that escalated into political hostility. A key reason the Framers adopted the Commerce Clause, and the Constitution itself, was to end the pattern of economic competition among the states that threatened to unravel the union.

As we further discussed, this history supports only a narrow role for the courts under the dormant Commerce Clause—a role limited to striking down protectionist and discriminatory state trade barriers but otherwise giving the states wide leeway to legislate in ways that may affect interstate commerce. Longstanding Supreme Court precedent reflects exactly that understanding. Since the mid-nineteenth century, when the Court first began formulating the dormant Commerce Clause doctrine, its decisions have consistently focused on combatting protectionism and discrimination. When the Court has strayed beyond that narrow function, and has tried to assess the economic wisdom of state laws, it has produced only a confused and inconsistent body of decisions. But for nearly a century now, virtually the only laws the Court has struck down have been protectionist and discriminatory trade restrictions, reflecting an appropriately modest role for the judiciary here.

Finally, our brief explained why history and precedent offered no grounds for overturning Proposition 12. The law does not discriminate against other states’ commerce or favor local economic interests at their expense. Because it does not put California in competition with any state, Proposition 12 creates none of the risks that prompted the adoption of the Commerce Clause and that have long guided the Court’s decisions. Contrary to the arguments of the pork producers, the Constitution does not shield any industry from state laws that might increase their costs or interfere with their preferred system of production. The Framers did not adopt the Commerce Clause to exempt businesses from even-handed local requirements or to place any industry’s methods of operation on a constitutional pedestal.

On May 11, 2023, the Supreme Court upheld Proposition 12, rejecting the pork producers’ claims in a 5-4 decision written by Justice Neil Gorsuch. Embracing the arguments in our brief, the Court stressed that preventing economic protectionism has been the motivating force behind the Court’s prior decisions under the dormant Commerce Clause. The Court then rejected the argument that Proposition 12 is invalid simply because it may have practical effects outside of California. The Court also rejected the argument that Proposition 12 is invalid because its burdens on commerce outweigh its benefits: A four-Justice plurality concluded that laws merely increasing compliance costs or forcing some companies to change their business methods cannot be overturned under this type of balancing test, while a three-Justice plurality concluded that no laws whatsoever should be held invalid under such a balancing test, writing that the dormant Commerce Clause is not a license for judges “to reassess the wisdom of state legislation.”