Another Voting Paradox Case (Pork Division)
They’re at it again! (See here, here, here, here, . . . )
In the Nat’l Pork Producers Council v. Ross case, decided last Thursday, the Court has again fallen into what Steve Salop and I called, many years ago, the “Tidewater voting paradox.” Here’s the lineup:
GORSUCH, J., announced the judgment of the Court, and delivered the
opinion of the Court with respect to Parts I, II, III, IV–A, and V, in which
THOMAS, SOTOMAYOR, KAGAN, and BARRETT, JJ., joined, an opinion with
respect to Parts IV–B and IV–D, in which THOMAS and BARRETT, JJ.,
joined, and an opinion with respect to Part IV–C, in which THOMAS, SOTOMAYOR, and KAGAN, JJ., joined. SOTOMAYOR, J., filed an opinion concurring in part, in which KAGAN, J., joined. BARRETT, J., filed an opinion
concurring in part. ROBERTS, C. J., filed an opinion concurring in part
and dissenting in part, in which ALITO, KAVANAUGH, and JACKSON, JJ.,
joined. KAVANAUGH, J., filed an opinion concurring in part and dissenting in part.
Obviously, it’s a mess, but it’s a good deal more troubling than the ordinary mess. Here’s what’s going on.
The case involved a dormant Commerce Clause (DCC) challenge by the Nat’l Pork Producers’ Council (“NPPC”) to a CA law (Proposition 12) requiring that all pork sold in CA come from pigs that were not “cruelly treated”; cruel treatment is defined in the statute, inter alia, to mean confinement in less than 24 square feet of space. The Ninth Circuit dismissed the NPPC claim for failure to state a valid claim under the DCC, and, by a vote of 5-4, the Supreme Court affirmed the dismissal.
The NPPC advanced a number of theories supporting their claim. While the “core” of the DCC is a prohibition on state laws that are “discriminatory” or “protectionist,” designed to give an economic advantage to in-state businesses at the expense of out-of-state businesses, the NPPC conceded that Proposition 12 was not such a law; it treats in-state and out-of-state pork producers in precisely the same manner.
The challengers relied instead on a different thread of DCC caselaw, the so-called Pike balancing test:
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 commer
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