Bringing Home the Bacon: Proposition 12 and the Dormant Commerce Clause

The third Clause of Article I, Section 8 of the Constitution is the Commerce Clause, which gives Congress the power to “regulate commerce with foreign Nations, and among the several States, and with the Indian Tribes.” The Founders were quite straightforward and deliberate in their delegation of the power to regulate interstate commerce to Congress. Less straightforward, though, is the role of the States in the regulation of interstate commerce. Very little is written in the Constitution and Bill of Rights regarding federalism in this regard. Not even the Tenth Amendment, which defers powers not relegated to the Federal Government to the States, provides clarity as to whether States have the ability to pass legislation that could significantly affect interstate commerce. 

The answer to this question comes from the Dormant Commerce Clause, which is not explicitly written in the Constitution. Rather, it is implied from the Commerce Clause. Instead of enumerating federal power, it restricts state power to pass legislation that harms interstate commerce or competition. The Dormant Commerce Clause has roots tracing back to Gibbons v. Ogden (1824). Here, the Supreme Court ruled that the power to regulate interstate commerce lies totally and exclusively with Congress. Importantly, the Court did not specify whether the States could pass a law that impacts interstate commerce, just that they could not explicitly regulate it. 

Over time, Supreme Court rulings built off of Gibbons to establish the Dormant Commerce Clause in cases like Willson v. Black Bird Marsh Co. (1829). This case centered around a Delaware law that allowed the Black Bird Marsh Company to construct a dam across Blackbird Creek. The construction of the dam impeded navigation along the Creek. When a small sailboat later crashed into the dam, the owner was sued for trespassing and ordered to pay damages for the dam. The boat owner, Willson, brought the case against the Supreme Court and argued that Blackbird Creek was “common and navigable,” akin to a highway. He argued further that the law that authorized the construction of the dam was unconstitutional in that it harmed interstate commerce and was inconsistent with the Commerce Clause. 

Although the Supreme Court ultimately ruled unanimously against Willson, the rationale used to do so more concretely established the Dormant Commerce Clause. The Court stated that the law allowing Black Bird Marsh Company to construct the dam cannot be considered as “repugnant to the power to regulate commerce in its dormant state.” Essentially, the Court did not find the state law to conflict with the Commerce Clause in that it did not significantly impede the federal government’s right to regulate commerce. Thus, while this particular case is not an example of the Dormant Commerce Clause being used to restrict state power, it does establish a standard that may qualify certain state laws as unconstitutionally restricting interstate commerce. Future cases develop this standard to forbid states from passing laws that are “unduly burdensome” to interstate commerce or discriminate against competition from other states. 

This is the standard that defines the modern-day Dormant Commerce Clause, and it is the standard the Supreme Court will use to decide the California case National Pork Producers Council v. Ross. The case deals with a ballot proposition passed by California voters in 2018 called Proposition 12. Essentially, Proposition 12 sets new standards for ethical farm animal raising in California and bans the sale of pork, eggs, and veal that do not abide by these standards, even if these products originate from out of state. For instance, if a hog farmer in Ohio wants his pork products to be sold in California, then he must modify the housing for his hogs to ensure they have adequate space. The challengers of Proposition 12 hold that this “extraterritorial effect” places an “undue burden” on interstate commerce, therefore violating the Dormant Commerce Clause. 

In 2020, Judge Thomas Walen of the U.S. District Court of Southern California ruled against the challengers, stating that Proposition 12 does not “target solely interstate commerce and it regulates in-state and out-of-state equally.” The decision was later appealed to the U.S. Ninth Circuit Court of Appeals and affirmed. While Judge Walen’s reasoning for upholding Proposition 12 is true, it seems weak as it pertains to the Dormant Commerce Clause. After all, the Dormant Commerce Clause prohibits any law that unduly burdens interstate commerce; whether that law regulates in-state commerce to the same magnitude does not seem relevant.

To determine if Proposition 12 truly places an undue burden on interstate commerce, one must examine its economic effects. It is easy to see that Proposition 12 regulates commerce, since California makes up about 13% of national pork consumption. If out-of-state hog farmers wish to sell to this huge portion of the meat market, then they must take up the additional cost of modifying the housing for their animals. These additional costs would not only drive up the costs of pork in California, but around the country as well since consumers from all over the country buy from these producers who are incurring these costs. If pork producers choose not to abide by Proposition 12, they would then lose a significant portion of their profits. As a result, they would produce less pork and possibly cause shortages in other parts of the country. All of these price increases and supply-demand disruptions would almost certainly affect the lower class more than anyone else, as they are more likely to be the marginal consumers. It is also important to note these negative effects would likely be exacerbated by the heightened inflation currently facing the nation. Equally as important to note, however, are those advocates of Proposition 12 who argue that its negative economic effects are being overblown, given that the law is addressing important ethical farming concerns.

Despite the possibility that these economic effects could be overblown, it does not seem likely that the Supreme Court will affirm the lower courts’ decision. No matter the extent of Proposition 12’s impacts, it is undeniable that its effects would reach far beyond the borders of California. Any and all pork producers with the intention to capitalize on the huge California pork market would need to modify their production according to Proposition 12. This effect alone could be seen as an undue burden on interstate commerce, independent of the additional price increases and supply-demand shocks that would follow. 

Perhaps a different avenue of approach for proponents of Proposition 12 would be to argue that the State of California’s interest to promote ethical meat production outweighs the interest to protect interstate commerce. After all, commerce is one of the most effective ways to push for an ethical goal in the political world. Still, it seems like a long shot for such an ethical change in the production of meat to come from a law or ballot initiative. If the Supreme Court does, in fact, rule that Proposition 12 violates the Dormant Commerce Clause, California consumers would have to vote with their wallets rather than with their ballots. 

Nicholas Duffy is a junior at Brown University, concentrating in Economics. He is a staff writer for the Brown Undergraduate Law Review and can be contacted at nicholas_duffy@brown.edu.