Amicus Curiae Brief — National Pork Producers Council, et al., Petitioners v. Karen Ross, in Her Official Capacity as Secretary of the California Department of Food & Agriculture, et al.
Supreme Court briefJun 14, 2022
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No. 21-468
In The
Supreme Court of the United States
____________________
NATIONAL PORK PRODUCERS COUNCIL &
AMERICAN FARM BUREAU FEDERATION,
Petitioners,
v.
KAREN ROSS, et al.,
____________________
Respondents.
On Writ of Certiorari to the
United States Court of Appeals
for the Ninth Circuit
____________________
BRIEF AMICUS CURIAE OF
PACIFIC LEGAL FOUNDATION
IN SUPPORT OF PETITIONERS
____________________
ADITYA DYNAR
Pacific Legal Foundation
3100 Clarendon Blvd.,
Suite 610
Arlington, Virginia 22201
(202) 807-4472
ADynar@pacificlegal.org
DEBORAH J. LA FETRA
Counsel of Record
Pacific Legal Foundation
555 Capitol Mall, Suite 1290
Sacramento, California 95814
(916) 419-7111
DLaFetra@pacificlegal.org
Counsel for Amicus Curiae Pacific Legal Foundation
i
Questions Presented
Whether allegations that a state law has dramatic
economic effects largely outside of the state and
requires pervasive changes to an integrated
nationwide industry state a violation of the dormant
Commerce Clause, or whether the extraterritoriality
principle described in this Court’s decisions is now a
dead letter.
Whether such allegations, concerning a law that is
based solely on preferences regarding out-of-state
housing of farm animals, state a Pike claim.
ii
Table of Contents
Questions Presented .................................................... i
Table of Authorities ................................................... iii
Interest of Amicus Curiae .......................................... 1
Introduction and Summary of Argument .................. 2
Argument .................................................................... 4
I.
The Constitution’s Structure Requires
Robust Enforcement of the Dormant
Commerce Clause ................................................. 4
A. The Dormant Commerce Clause Protects
All States’ Policy Choices on an Equal
Basis ............................................................... 4
B. The Dormant Commerce Clause Is
Essential to Maintaining the Separation
of Powers ...................................................... 10
C. The Dormant Commerce Clause Protects
the Right to Earn a Living .......................... 12
1.
Protectionist state legislation
prohibits sale of “ungraded” butter ...... 12
2.
The dormant Commerce Clause
supports challenges to protectionist
“Certificate of Need” (CON) laws ......... 13
II. The Dormant Commerce Clause’s Ban on
Extraterritorial Regulations
Counterbalances States’ Moral Crusades ......... 15
Conclusion ................................................................. 20
iii
Table of Authorities
Page(s)
Cases
Austin v New Hampshire,
420 U.S. 656 (1975) ............................................. 7
Baldwin v. G.A.F. Seelig, Inc.,
294 U.S. 511 (1935) ........................................... 13
Baldwin v. United States,
140 S. Ct. 690 (2020) ........................................ 11
BMW of N. Am., Inc. v. Gore,
517 U.S. 559 (1996) ............................................. 8
C & A Carbone, Inc. v. Town of Clarkstown,
N.Y., 511 U.S. 383 (1994) ................................ 5, 6
Corey v. Rocky Mountain Farmers Union,
573 U.S. 947 (2014) ............................................. 1
Dunn v. Blumstein,
405 U.S. 330 (1972) ......................................... 3, 7
Energy & Env’t Legal Inst. v. Epel,
793 F.3d 1169 (10th Cir.), cert. denied,
577 U.S. 1043 (2015) ..................................... 1, 16
Gamble v. United States,
139 S. Ct. 1960 (2019) ....................................... 11
Gonzales v. Raich, 545 U.S. 1 (2005) ....................... 1
Gregory v. Ashcroft, 501 U.S. 452 (1991) ................. 9
Hicklin v Orbeck, 437 U.S. 518 (1978) ..................... 7
Juliana v. United States,
947 F.3d 1159 (9th Cir. 2020) ........................... 16
iv
Lunding v. New York Tax Appeals Tribunal,
522 U.S. 287 (1998) ............................................. 7
Metropolitan Life Ins. Co. v. Ward,
470 U.S. 869 (1985) ............................................. 7
Minerva Dairy v. Harsdorf,
905 F.3d 1047 (7th Cir. 2018), cert.
denied, 139 S. Ct. 2746 (2019) ............ 1, 2, 12, 13
New State Ice Co. v. Liebmann,
285 U.S. 262 (1932) ............................................. 9
North Dakota v. Heydinger,
15 F. Supp. 3d 891 (D. Minn. 2014),
aff’d, 825 F.3d 912 (8th Cir. 2016) .................... 17
People for Ethical Treatment of Property
Owners v. U.S. Fish and Wildlife
Service, 852 F.3d 990 (10th Cir. 2017),
cert. denied, 138 S. Ct. 649 (2018) ...................... 1
Pharmaceutical Research and Mfrs. of
America v. Concannon,
538 U.S. 644 (2003) ............................................. 1
Pike v. Bruce Church, Inc.,
397 U.S. 137 (1970) ........................................... 15
Rocky Mountain Farmers Union v. Corey,
730 F.3d 1070 (9th Cir. 2013) ........................... 17
Saenz v. Roe,
526 U.S. 489 (1999) ......................................... 3, 7
Sissel v. U.S. Dep’t of Health and Human
Services, 760 F.3d 1 (D.C. Cir. 2014),
cert. denied, 577 U.S. 1113 (2016)....................... 1
South-Central Timber Development, Inc. v.
Wunnicke, 467 U.S. 82 (1984) ............................. 5
v
Southern Pac. Co. v. Arizona ex rel.
Sullivan, 325 U.S. 761 (1945) ............................. 8
Supreme Court of New Hampshire v. Piper,
470 U.S. 274 (1985) ......................................... 3, 6
Tennessee Wine and Spirits Retailers Ass’n
v. Thomas, 139 S. Ct. 2449 (2019) .................. 1, 3
Truesdell v. Meier,
No. 3:19-cv-00066-GFVT
(E.D. Ky. Sept. 24, 2019) ............................... 2, 14
United Bldg. and Const. Trades Council of
Camden Cnty. v. Mayor and Council of
City of Camden,
465 U.S. 208 (1984) ............................................ 7
World-Wide Volkswagen Corp. v. Woodson,
444 U.S. 286 (1980) ............................................. 6
Youngstown Sheet & Tube Co. v. Bowers,
358 U.S. 534 (1959) ............................................ 7
Statutes
Cal. Bus. & Prof. Code § 17200 et seq. ..................... 2
Cal. Health & Safety Code § 25990(b)(2) ................. 2
Cal. Health & Safety Code § 25993(b) ..................... 2
Cal. Health & Safety Code § 38505(j) .................... 16
Cal. Health & Safety Code § 38562 ........................ 16
Ky. Rev. Stats. § 216B.015(13). .............................. 13
Ky. Rev. Stats. § 216B.061 ..................................... 13
Ky. Rev. Stats. § 216B.085 ..................................... 14
Wis. Stat. § 97.176(1) .............................................. 12
vi
Constitutions
N.Y. Const., Preamble (Apr. 20, 1777),
https://avalon.law.yale.edu/18th_century
/ny01.asp ............................................................ 10
Pa. Const., Decl. of Rights, art. III (Sept. 28,
1776), https://avalon.law.yale.edu/
18th_century/pa08.asp ...................................... 10
U.S. Const. art. I, § 8, cl. 3...................................... 11
U.S. Const. art. I, § 9 .............................................. 11
U.S. Const. art. I, § 10 ............................................ 11
U.S. Const. art. IV .......................................... 3, 6, 11
U.S. Const. art. IV, § 2 .............................................. 8
U.S. Const. art. V .................................................... 11
U.S. Const. art. VII ................................................. 11
Regulations
900 Ky. Admin. Regs. 6:070 §2(2) .......................... 14
Wis. Admin. Code ATCP § 85.06 ............................ 12
Rules of Court
Sup. Ct. R. 37.3(a) ..................................................... 1
Sup. Ct. R. 37.6 ......................................................... 1
Other Authorities
Boden, Anastasia & Erickson, Angela C.,
Competitor’s Veto: A Roadblock to New
Businesses (Feb. 1, 2021),
https://pacificlegal.org/wpcontent/uploads/2021/01/con-lawreport.pdf ........................................................... 14
vii
Bratton, Trevor, Breaking Down Barriers to
Work for Low Income Families,
Goldwater Inst. (Mar. 2020),
https://goldwaterinstitute.org/wpcontent/uploads/2020/03/ ................................... 14
Braun, Thomas, The Border Battle: North
Dakota’s Suit Against Minnesota and the
Future of the Next Generation Energy
Act, 36 Hamline L. Rev. 479 (2013) .................. 16
Broughton, Kristin, Demand for Cage-Free
Eggs Pressures Cal-Maine, Wall St. J.
(Apr. 5, 2022), https://www.wsj.com/
articles/cal-maine-steps-up-investmentto-meet-demand-for-cage-free-eggs11649107116 ...................................................... 18
Cal. Dep’t of Public Health, CDPH
Launches New Campaign to Combat
Teen Vaping (Aug. 9, 2021),
https://www.cdph.ca.gov/Programs/OPA/
Pages/NR21-245.aspx ........................................ 19
Collins, Richard B., Economic Union as a
Constitutional Value,
63 N.Y.U. L. Rev. 43 (1988)............................. 5, 6
Drahozal, Christopher R., Preserving the
American Common Market: State and
Local Governments in the United States
Supreme Court,
7 S. Ct. Econ. Rev. 233 (1999) ............................. 6
Gifford, Daniel J., Federalism, Efficiency,
the Commerce Clause, and the Sherman
Act: Why We Should Follow a Consistent
Free-Market Policy,
44 Emory L.J. 1227 (1995) .................................. 5
viii
Hamburger, Philip, Is Administrative Law
Unlawful? (2014) ............................................... 10
Jay, Stewart, Origins of the Privileges and
Immunities of State Citizenship under
Article IV, 45 Loy. U. Chi. L.J. 1 (2013) ............. 8
Kochan, Donald J., The Meaning of
Federalism in a System of Interstate
Commerce: Free Trade Among the
Several States, 95 Notre Dame L. Rev.
Reflection 166 (2020) ......................................... 15
Lockwood, Lisa, Consumer Demand for
Sustainable Products and Business
Practices Spikes During Pandemic,
Women’s Wear Daily (Mar. 30, 2021),
https://wwd.com/sustainability/materials
/consumer-demand-spikes-forsustainable-products-and-businesspractices-during-pandemic-1234790172/.......... 18
McConnell, Michael W., Federalism:
Evaluating the Founders’ Design, 54 U.
Chi. L. Rev. 1484 (1987) ...................................... 9
NPR, California Bans State Travel to
Florida and 4 Other States (June 29,
2021), https://www.npr.org/2021/
06/29/1011253354/california-bans-statetravel-to-florida-and-4-other-states-lgbtq ........ 19
Pancoast, Abigail B., Comment, A Test Case
for Re-evaluation of the Dormant
Commerce Clause: The Maine Rx
Program, 4 U. Pa. J. Const. L. 184 (2001) .......... 5
ix
Smolokoff, Alex, Consumers willing to pay
up for sustainable products, Food &
Beverage Insider (May 3, 2021),
https://www.foodbeverageinsider.com/su
stainability/ ........................................................ 17
Thomas, Patrick, Carl Icahn Targets Kroger
Over Pork, CEO Pay, Wall St. J. (Mar.
29, 2022), https://www.wsj.com/articles/
carl-icahn-targets-kroger-over-pork-ceopay-11648594425 ............................................... 18
Tiebout, Charles M., A Pure Theory of Local
Expenditures, 64 J. Pol. Econ. 416 (1956) .......... 9
1 Tribe, Laurence H., American
Constitutional Law (3d ed. 2000) ........................ 9
Weingast, Barry R., The Economic Role of
Political Institutions: Market-Preserving
Federalism and Economic Development,
11 J.L. Econ. & Org. 1 (1995) .............................. 6
Williams, Steve, More people will pay
premium prices for products from
“sustainable” companies, Snack Food &
Wholesale Bakery (Sept. 14, 2017),
https://www.snackandbakery.com/article
s/90662-more-people-will-pay-premiumprices-for-products-from-sustainablecompanies .......................................................... 18
1
Interest of Amicus Curiae
Pacific Legal Foundation (PLF) was founded in
1973 and litigates at all levels of the federal and state
judiciaries, nationwide. 1 PLF has experience directly
representing plaintiffs presenting Commerce Clause
claims, see, e.g., Minerva Dairy v. Harsdorf, 905 F.3d
1047 (7th Cir. 2018), cert. denied, 139 S. Ct. 2746
(2019); People for Ethical Treatment of Property
Owners v. U.S. Fish and Wildlife Service, 852 F.3d 990
(10th Cir. 2017), cert. denied, 138 S. Ct. 649 (2018);
Sissel v. U.S. Dep’t of Health and Human Services, 760
F.3d 1 (D.C. Cir. 2014), cert. denied, 577 U.S. 1113
(2016); and filing amicus briefs in Commerce Clause
cases. See, e.g., Tennessee Wine and Spirits Retailers
Ass’n v. Thomas, 139 S. Ct. 2449 (2019); Corey v.
Rocky Mountain Farmers Union, 573 U.S. 947 (2014);
Energy & Env’t Legal Inst. v. Epel, 793 F.3d 1169
(10th Cir.), cert. denied, 577 U.S. 1043 (2015);
Gonzales v. Raich, 545 U.S. 1 (2005); Pharmaceutical
Research and Mfrs. of America v. Concannon, 538 U.S.
644 (2003).
PLF represents entrepreneurs whose livelihoods
are threatened by protectionist or extraterritorial
regulations in violation of the Commerce Clause and
other constitutional protections for individual rights.
Among these are Minerva Dairy, which is effectively
barred from the Wisconsin butter market because the
1 Pursuant to this Court’s Rule 37.3(a), all parties have consented
to the filing of this brief.
Pursuant to Rule 37.6, Amicus Curiae affirms that no counsel
for any party authored this brief in whole or in part, and no
counsel or party made a monetary contribution intended to fund
the preparation or submission of this brief. No person other than
Amicus Curiae, its members, or its counsel made a monetary
contribution to its preparation or submission.
2
state’s protectionist butter-grading scheme (based
solely on taste; not any health or safety factors)
forbade the company from selling ungraded artisanal
butter. See Minerva Dairy, 905 F.3d 1047. Similarly,
PLF represents Phillip Truesdell and his familyowned medical transport company located in Ohio one
mile from the Kentucky border in a lawsuit against
Kentucky under the dormant Commerce Clause
because that state’s “certificate of need” statute bars
Truesdell from serving customers without undergoing
an onerous, expensive, and time-consuming process
akin to a trial where he must demonstrate a public
“need” for his business. Truesdell v. Meier, No. 3:19cv-00066-GFVT (E.D. Ky. Sept. 24, 2019) (pending).
PLF believes the dormant Commerce Clause provides
critical protection for entrepreneurs and individuals
and supports our nation’s commitment to free trade.
Introduction and Summary of Argument
In 2018, California voters passed Proposition 12,
which forbids the sale of pork in California when the
seller knows or should know that the meat came from
the offspring of a sow that was confined “in a cruel
manner.” Cal. Health & Safety Code § 25990(b)(2).
Every sale of covered pork in California that does not
meet these standards is a crime punishable by a
$1,000 fine or a 180-day prison sentence, and also
subjects the seller to a civil action for damages. Id.,
§ 25993(b). Proposed regulations authorize California
agents to conduct inspections of pork production and
related facilities nationwide. Pet. at 6–7. And any
Californian can sue to enforce the law under the
state’s broad Unfair Competition Law, Bus. & Prof.
Code § 17200 et seq. Because California imports
99.87% of its pork, the law applies almost exclusively
3
to pork producers in other states—65,000 farmers
raising 125 million hogs per year in a $26 billion
industry—with virtually none of those farms in
compliance with California’s demands.
If California is permitted to govern pig farming
standards nationwide, requiring farms to either
reduce herd sizes or build new facilities, the inevitable
result is increased prices in transactions with no
California connection, farms driven out of business,
and higher costs at the supermarket. Fortunately, the
Framers of the Constitution were well aware of states’
proclivity to diminish trade during the Articles of
Confederation era, and multiple provisions of the
Constitution ensure protection to individual
tradespeople from overreaching state laws that
extend beyond state borders. See Tenn. Wine and
Spirits, 139 S. Ct. at 2460–61 (“removing state trade
barriers was a principal reason for the adoption of the
Constitution”).
The overall structure of the Constitution values
free trade among the states. The Commerce Clause
should be read in a manner consistent with other
constitutional provisions designed to ensure
interstate parity, such as the Privileges and
Immunities Clause of Article IV, see, e.g., id. at 1261;
Supreme Court of New Hampshire v. Piper, 470 U.S.
274 (1985), the Equal Protection Clause of the
Fourteenth Amendment, see, e.g., Dunn v. Blumstein,
405 U.S. 330 (1972), and the Privileges or Immunities
Clause of the Fourteenth Amendment, see, e.g., Saenz
v. Roe, 526 U.S. 489 (1999). Moreover, the dormant
Commerce Clause is not just important for states qua
states; it is a vitally important source of constitutional
protection for individual entrepreneurs who bear the
4
burdens of protectionist and extraterritorial
regulations. The dormant Commerce Clause often is
the primary source of protection in defense of the right
to earn a living. The dormant Commerce Clause is a
meaningful, important, and a constitutionally
justified limitation on state regulatory power.
Finally, the doctrine checks a state’s zeal for
extraterritorial regulation on matters where no
national consensus yet exists. California’s moral
views related to animal husbandry seek to alter
production processes nationwide. The dormant
Commerce Clause limits the extent to which a state
can export such value judgments to Americans who
have no opportunity to provide political accountability
to the regulators. In this era of moral crusades—
across the political spectrum—individuals and
businesses are in especial need of constitutional
protection from states’ regulatory overreach on all
manner of moral questions and social policy.
The decision below should be reversed.
Argument
I
The Constitution’s Structure Requires Robust
Enforcement of the Dormant Commerce Clause
A.
The Dormant Commerce Clause
Protects All States’ Policy Choices
on an Equal Basis
In our federal system, uniform national standards,
where appropriate, are for Congress to set. As the
Founders knew and this Court’s dormant Commerce
Clause jurisprudence recognizes, allowing one state to
impose its laws on commerce nationwide would place
5
commerce at the mercy of local, parochial interests
and create an anarchy of conflicting state legal
regimes that destroys commercial confidence and
creates hostility between the states. See, e.g., C & A
Carbone, Inc. v. Town of Clarkstown, N.Y., 511 U.S.
383, 406 (1994) (O’Connor, J., concurring) (differing
state regimes regulating flow of solid waste result in
“the type of balkanization the Clause is primarily
intended to prevent”). A state law using the state’s
leverage in one market to achieve a separate
regulatory purpose elsewhere is subject to the
dormant Commerce Clause as a state regulation; it is
not market participation. See South-Central Timber
Development, Inc. v. Wunnicke, 467 U.S. 82, 96–98
(1984) (holding that Alaska’s statute limiting buyers
of its timber to those who agreed to process the
purchased timber in Alaska is subject to the dormant
Commerce Clause); Abigail B. Pancoast, Comment, A
Test Case for Re-evaluation of the Dormant Commerce
Clause: The Maine Rx Program, 4 U. Pa. J. Const. L.
184, 197 (2001).
When states burden commerce outside their
borders, they interfere in policy choices of other states,
the federal government, or both. When this
interference devolves into economic warfare, the
producers and consumers in smaller and weaker
states suffer most. Richard B. Collins, Economic
Union as a Constitutional Value, 63 N.Y.U. L. Rev. 43,
64 (1988). The free-trade objectives incorporated in
the dormant Commerce Clause further the efficient
allocation of resources within American society, just
as free trade among nations helps to further the
efficient allocation of resources in the world. Daniel J.
Gifford, Federalism, Efficiency, the Commerce Clause,
and the Sherman Act: Why We Should Follow a
6
Consistent Free-Market Policy, 44 Emory L.J. 1227,
1227–28 (1995). Indeed, the dormant Commerce
Clause calls for an American “common market.” C &
A Carbone, 511 U.S. at 423; World-Wide Volkswagen
Corp. v. Woodson, 444 U.S. 286, 293 (1980).
The creation and preservation of a national
common market is a central feature of “marketpreserving federalism” that fosters economic growth
by limiting the encroachment of a country’s political
system upon its markets. Barry R. Weingast, The
Economic Role of Political Institutions: MarketPreserving Federalism and Economic Development,
11 J.L. Econ. & Org. 1, 3–4 (1995); Christopher R.
Drahozal, Preserving the American Common Market:
State and Local Governments in the United States
Supreme Court, 7 S. Ct. Econ. Rev. 233, 235 (1999).
For private enterprise to flourish, a federal system
must “preven[t] the lower governments from using
their regulatory authority to erect trade barriers
against the goods and services from other political
units.” Weingast, Economic Role, 11 J.L. Econ. & Org.
at 4. When costs imposed by legislation are exported
outside the state, there is less political pressure to
minimize these costs and a greater likelihood that the
law will reduce aggregate welfare. Collins, Economic
Union, 63 N.Y.U.L. Rev. at 68.
The Commerce Clause is one of several
constitutional provisions designed to ensure
interstate parity. Others include the Privileges and
Immunities Clause of Article IV, see, e.g., Piper, 470
U.S. 274, 2 the Equal Protection Clause of the
2 See also Lunding v. New York Tax Appeals Tribunal, 522 U.S.
287, 314 (1998) (holding unconstitutional New York’s denial to
7
Fourteenth Amendment, see, e.g., Dunn v. Blumstein,
405 U.S. 330, 333 (1972); Metropolitan Life Ins. Co. v.
Ward, 470 U.S. 869, 878 (1985) (Alabama’s aim in
passing a law “to promote domestic industry”
represented “the very sort of parochial discrimination
that the Equal Protection Clause was intended to
prevent”), and the Privileges or Immunities Clause of
the Fourteenth Amendment, see, e.g., Saenz v. Roe,
526 U.S. 489, 502–03 (1999). Still other provisions,
such as the Import-Export Clause 3 and the
availability of federal courts for diversity actions, 4
also promote national equality. While these
constitutional provisions play different roles in the
overall federal scheme, they reinforce one another and
fill in gaps to achieve the overarching purpose of
interstate parity. See, e.g., Hicklin, 437 U.S. at 531–
32 (“[T]he mutually reinforcing relationship between
the Privileges and Immunities Clause of Art. IV, § 2,
and the Commerce Clause . . . renders several
nonresidents of tax deduction for alimony paid); Hicklin v
Orbeck, 437 U.S. 518 (1978) (holding unconstitutional Alaska’s
hiring preference for state residents); Austin v New Hampshire,
420 U.S. 656, 665 (1975) (holding unconstitutional New
Hampshire’s commuter tax on nonresidents).
3 “Guided by the experience of the evils generated by the
parochialism of the new states, the wise men at the Philadelphia
Convention took measures to make for the expansive United
States a free trade area. . . . They accomplished this by two
provisions in the Constitution: the Commerce Clause and the
Import-Export Clause.” Youngstown Sheet & Tube Co. v. Bowers,
358 U.S. 534, 551 (1959) (Frankfurter, J., dissenting).
4 Alexander Hamilton expressly linked the Privileges and
Immunities Clause with “the concern over state parochialism
that gave rise to the federal courts’ diversity jurisdiction under
Article III.” United Bldg. and Const. Trades Council of Camden
Cnty. v. Mayor and Council of City of Camden, 465 U.S. 208, 225
(1984) (Blackmun, J., dissenting).
8
Commerce Clause decisions appropriate support” for
the Court’s holding under the Privileges and
Immunities Clause.). The Framers enacted these
interlocking provisions specifically out of concern
“about centralizing control over trade and ending
discriminatory taxes.” Stewart Jay, Origins of the
Privileges and Immunities of State Citizenship under
Article IV, 45 Loy. U. Chi. L.J. 1, 17 (2013).
The decision below enables trade restrictions
contrary to the Framers’ vision, and incites rather
than quells bad trade relations among the states.
Allowing states to leverage their market power to
reach beyond their borders and control activity that is
properly the subject of direct regulation by other
states undermines the basic principles of federalism
on which this nation was founded. 5 And it does so in a
manner that leaves the invaded states with no legal
or political recourse. The Constitution ties the
“common market” economic policy to political
processes, ensuring that individuals primarily
affected by state regulation may register their
approval or disapproval by voting. Southern Pac. Co.
v. Arizona ex rel. Sullivan, 325 U.S. 761, 767 n.2
(1945) (“[T]o the extent that the burden of state
regulation falls on interests outside the state, it is
unlikely to be alleviated by the operation of those
political restraints normally exerted when interests
5 Moreover, citizens and companies must be assured that when
they conduct themselves lawfully within their own state, no
other state may permissibly regulate that conduct. See BMW of
N. Am., Inc. v. Gore, 517 U.S. 559, 572–73 (1996) (“economic
penalties . . . must be supported by the State’s interest in
protecting its own consumers and its own economy.”) (emphasis
added).
9
within the state are affected.”). See also 1 Laurence H.
Tribe, American Constitutional Law, § 6–5 (3d ed.
2000) (“The checks on which we frequently rely to curb
the abuse of legislative power—election and recall—
are simply unavailable to those who have no effective
voice or vote in the jurisdiction which harms them.”).
Competition for voters, taxpayers, and industries
forces states to be accountable to those they govern
and innovative in their search for solutions to vexing
public policy problems. See Gregory v. Ashcroft, 501
U.S. 452, 458 (1991). This competition allows states to
function as laboratories of democracy. Cf. New State
Ice Co. v. Liebmann, 285 U.S. 262, 311 (1932)
(Brandeis, J., dissenting). Because of the relative ease
of migrating within the United States, states must be
responsive to the preferences of voters, taxpayers, and
industries, any of whom may choose to leave for
greener pastures. See Charles M. Tiebout, A Pure
Theory of Local Expenditures, 64 J. Pol. Econ. 416,
416–18 (1956) (government power should be
decentralized to allow people to “vote with their feet”).
These competitive pressures ultimately lead to better
results for all by aligning government with the
preferences of the governed, favoring neither
conservative nor progressive results. See Michael W.
McConnell, Federalism: Evaluating the Founders’
Design, 54 U. Chi. L. Rev. 1484, 1498–1500 (1987).
When states impose the costs of their regulations on
their neighbors by requiring out-of-state activity to be
conducted according to in-state rules, they blunt this
positive, interstate competition.
10
B.
The Dormant Commerce Clause Is
Essential to Maintaining the
Separation of Powers
The dormant Commerce Clause elicits mixed
reactions and possesses a bad reputation in some
quarters. It, however, embodies an important
horizontal separation-of-powers principle that is
uniquely American.
When Americans initially established their state
constitutions, they did not mention the “police power”
without making clear that this general domestic
power belonged to the people rather than any one part
of government. Pennsylvania’s first constitution
recited, “the people of this State have the sole,
exclusive and inherent right of governing and
regulating the internal police of the same.” Pa. Const.,
Decl. of Rights, art. III (Sept. 28, 1776). 6 That same
provision was adopted in North Carolina, Delaware,
Maryland, and Vermont. Philip Hamburger, Is
Administrative Law Unlawful? 446, note a (2014).
New York’s first constitution similarly stated that the
power to establish “a new form of government and
internal police” belonged to “the people.” N.Y. Const.,
Preamble (Apr. 20, 1777). 7
Nineteenth-century Americans, however, began to
attribute “police power” to the states and even, partly,
to the federal government. The words “police” or
“plenary” offered a technical-sounding name for a
general governmental power in domestic matters, and
this increasingly attracted American lawyers. This
consolidated vision of government commingled the
6 https://avalon.law.yale.edu/18th_century/pa08.asp.
7 https://avalon.law.yale.edu/18th_century/ny01.asp.
11
separated powers and set the stage for
“administrative absolutism.” Baldwin v. United
States, 140 S. Ct. 690, 695 (2020) (Thomas, J.,
dissenting from denial of certiorari).
The uniquely American system of government as
established by the United States Constitution and the
state constitutions has “split the atom of sovereignty,”
Gamble v. United States, 139 S. Ct. 1960, 1968
(2019)—not once but thrice. First, division exists
between state and federal governments. Second,
federal power is divided among the Congress, the
President, and the Judiciary. Third, the states under
their respective state constitutions divide power
among the state legislature, state executive, and state
judiciary. These provisions serve to better protect the
people from government overreach.
The dormant Commerce Clause therefore is not
simply a negative implication derived from Article I,
Section 8, Clause 3. It is necessary to give effect to the
entire Constitution and ensure the horizontal
separation of powers between states by prohibiting
any one state from encroaching on the powers of any
other state or insulating its residents from their outof-state activities. When such encroachment or
protectionism occurs at the state level, the vertical
separation of powers allows the federal government to
impede such state actions. These divisions supplanted
the Articles of Confederation to create “a more perfect
Union.” 8 Call it the extraterritoriality doctrine,
interstate parity, or federalism, the dormant
Commerce Clause remains an essential separation-ofpowers feature of the United States Constitution.
8 See also U.S. Const. art. I, §§ 9–10; art. IV; art. V; art. VII.
12
C.
The Dormant Commerce Clause Protects
the Right to Earn a Living
Amicus Pacific Legal Foundation represents
entrepreneurs whose attempts to provide products
and services to willing buyers are thwarted by
protectionist legislation. These small companies rely
on the protection offered by the dormant Commerce
Clause to challenge laws that favor incumbent
businesses. Here are some examples.
1.
Protectionist state legislation
prohibits sale of “ungraded” butter
Wisconsin is the only state that enforces a
prohibition on the sale of ungraded butter. Wis. Stat.
§ 97.176(1); Wis. Admin. Code ATCP § 85.06. This
antiquated law stands as a barrier to the flourishing
artisanal butter market, harming both producers and
consumers who would choose superior flavor, quality
ingredients, and superior processes over cheap, massproduced products. As a result of the state’s warning
that it would enforce the law against Minerva Dairy,
the artisan butter producer stopped selling its butter
at retail stores in Wisconsin. Minerva Dairy, 905 F.3d
at 1052.
The butter-grading law effectively prohibits out-ofstate artisanal butter makers from entering the
Wisconsin market. But, because hypothetical in-state
butter makers would face a similar—but not identical
—burden to enter the Wisconsin butter market,
Seventh Circuit precedent foreclosed Minerva Dairy’s
dormant Commerce Clause claim. Id. at 1059–60. The
court denied that the butter-grading law imposes
significant costs and burdens on interstate commerce,
and that the state’s purported justifications for the
13
law are speculative and illusory. Id. Yet as a result of
Wisconsin’s law, small artisanal butter makers are
forced out of the market, while larger butter makers
that conform to the state’s taste standards can easily
absorb the cost of grading and reap the benefit. The
upshot is to benefit entrenched industry insiders at
the expense of small businesses and consumers.
State-specific labeling laws like Wisconsin’s
threaten to create a state-by-state patchwork of
labeling requirements. Thus, laws like the buttergrading law undermine the notion that “the peoples of
the several states must sink or swim together.”
Baldwin v. G.A.F. Seelig, Inc., 294 U.S. 511, 523
(1935).
2.
The dormant Commerce Clause
supports challenges to protectionist
“Certificate of Need” (CON) laws
Phillip Truesdell owns Legacy Medical Transport,
LLC, a non-emergency ground ambulance business
located in Ohio, just a mile from the Kentucky border.
Legacy provides transportation services by ambulance
for people who need non-emergency support because
they require extra oxygen, are on dialysis, or cannot
sit up for extended periods of time. Due to the
company’s proximity to the Ohio-Kentucky border,
Legacy regularly transports clients from Ohio to
medical appointments and facilities in Kentucky. But
under Kentucky law, Legacy cannot transport those
same clients back home to Ohio, or transport anyone
between locations in Kentucky, without first
obtaining a “Certificate of Need.” Ky. Rev. Stats.
§§ 216B.061; 216B.015(13).
14
Like all CON laws, the statute requires Legacy to
submit to a procedure whereby other established
ambulance companies—Legacy’s competitors—can
protest, and effectively veto, Legacy’s entrance into
the state market. Ky. Rev. Stats. § 216B.085; 900 Ky.
Admin. Regs. 6:070 §2(2). To counter this opposition,
Legacy must demonstrate a public “need” for its
business such that it will not draw any customers
away from competitors. As in most states with CON
laws, applications that are protested are almost
always denied—including Legacy’s. To vindicate his
right to earn a living free of regulation that serves
only to favor existing businesses, Truesdell sued
Kentucky officials under the dormant Commerce
Clause and other constitutional provisions, claiming
that Kentucky has substantially burdened or
restricted the provision of intrastate ground
ambulance services within Kentucky, and interstate
ground ambulance services from Kentucky to other
states by out-of-state companies, in a manner
unjustified by any putative local benefit. Truesdell v.
Meier, No. 3:19-cv-00066-GFVT (E.D. Ky. Sept. 24,
2019) (complaint filed). 9
Economic regulations like CON laws pervasively
impede the right of entrepreneurs and other workers
to pursue their livelihoods. They have a particularly
insidious effect on those of lesser means. Trevor
Bratton, Breaking Down Barriers to Work for Low
Complaint
available
at
https://pacificlegal.org/wpcontent/uploads/2019/09/Legacy-Medical-Transport-LLC-andPhillip-Truesdell-v.-Adam-Meier-et-al.-Complaint.pdf. See also
Anastasia Boden & Angela C. Erickson, Competitor’s Veto: A
Roadblock
to
New
Businesses
(Feb.
1,
2021),
https://pacificlegal.org/wp-content/uploads/2021/01/con-lawreport.pdf.
9
15
Income Families, Goldwater Inst. at 2 (Mar. 2020)
(“[O]ccupational
licensure
without
universal
recognition or reciprocity acts as a tax on interstate
mobility and decreases economic mobility for lowincome families.”). 10 The dormant Commerce Clause
offers to these innovators and entrepreneurs a
bulwark against overreaching state regulation.
II
The Dormant Commerce Clause’s Ban on
Extraterritorial Regulations Counterbalances
States’ Moral Crusades
“States are finding ways to pretextually advance
an ‘in-state’ hook to control out-of-state behavior that
they find inconsistent with their policy, moral, or
other preferences.” Donald J. Kochan, The Meaning of
Federalism in a System of Interstate Commerce: Free
Trade Among the Several States, 95 Notre Dame L.
Rev. Reflection 166, 168 (2020). The necessary
corrective lies in the balancing test devised in Pike v.
Bruce Church, Inc., 397 U.S. 137, 142 (1970), which
says that nondiscriminatory statutes that effect
interstate commerce will be struck down if “the
burden imposed on commerce is clearly excessive in
relation to the putative local benefits.” A state’s
policies may cause adverse consequences to its own
industries and economy. So be it. But a state may not
address the resulting competitive disadvantage by
extending its regulation to commerce occurring
beyond its borders. We urge the Court to robustly
apply the Pike test when a state’s conception of the
10
https://goldwaterinstitute.org/wp-content/uploads/2020/03/
Breaking-Down-Barriers-to-Work-for-Low-IncomeFamilies_web.pdf.
16
good life primarily entails changing the way
individuals and businesses in other states manage
their affairs.
Efforts related to counter climate change may be
the prominent moral crusade of the day. Cf. Juliana
v. United States, 947 F.3d 1159, 1175 (9th Cir. 2020)
(“The plaintiffs have made a compelling case that
action is needed; it will be increasingly difficult in
light of that record for the political branches to deny
that climate change is occurring, that the government
has had a role in causing it, and that our elected
officials have a moral responsibility to seek
solutions.”); id. at 1191 (Staton, J., dissenting) (“When
the seas envelop our coastal cities, fires and droughts
haunt our interiors, and storms ravage everything
between, those remaining will ask: Why did so many
do so little?”). States impatient with the federal
government’s pace in enacting laws and regulations
are enacting their own. And given the global effects of
climate change, states try to push their regulations as
far as possible into other states across the nation. See
Thomas Braun, The Border Battle: North Dakota’s
Suit Against Minnesota and the Future of the Next
Generation Energy Act, 36 Hamline L. Rev. 479, 493–
94 (2013) (if a state only regulates emissions occurring
within it, “leakage” may occur as production shifts to
other states); see also Cal. Health & Safety Code
§§ 38505(j), 38562 (defining “leakage” and declaring
policies to minimize this “environmental and
economic” emigration).
Such laws have been challenged under the
dormant Commerce Clause, but often without success.
For example, in Energy & Env’t. Legal Inst., 793 F.3d
at 1172–73, the Tenth Circuit upheld a Colorado law
17
that regulates emissions from the production of
electricity that occurs wholly outside of its borders by
limiting this Court’s dormant Commerce Clause
decisions to price-control regulations alone. Contrary
to the position of Coloradans in that case, a different
group of Coloradans objected to forced compliance
with California regulations that imposed a “lifecycle
analysis” to account for the greenhouse gas emissions
occurring anywhere in the world during the
production and distribution of those fuels. Rocky
Mountain Farmers Union v. Corey, 730 F.3d 1070,
1080–81 (9th Cir. 2013). However, in North Dakota v.
Heydinger, 15 F. Supp. 3d 891 (D. Minn. 2014), the
district court acknowledged Minnesota’s “admirable”
goal of reducing carbon dioxide emissions, but
nevertheless, by projecting its legislation and
regulating in other states, the state violated the
extraterritoriality doctrine of the dormant Commerce
Clause. Id. at 918–19. The court noted that “if other
states adopt[ed] similar legislation, it could lead to
balkanization.” Id. at 916. The Eighth Circuit
affirmed. 825 F.3d 912, 921–22 (8th Cir. 2016). 11
Moreover,
extraterritorial
legislation
is
unnecessary. While California must not unilaterally
impose pig farming standards that cause nationwide
increases in prices, consumers frequently are willing
to pay a premium for food produced in ways they
consider “better” for any number of reasons
(sustainability, non-GMO, organic, locally-grown). See
Alex Smolokoff, Consumers willing to pay up for
11 Like the pork bits in this case, the electrons sought to be
regulated in Heydinger could not be traced to a particular
generation point and the practical effect of the regulation was to
control activities occurring entirely outside of Minnesota.
18
sustainable products, Food & Beverage Insider (May
3, 2021); 12 Kristin Broughton, Demand for Cage-Free
Eggs Pressures Cal-Maine, Wall St. J. at B4 (Apr. 5,
2022) 13 (noting that Walmart, Kroger, and Target
committed to selling only cage-free eggs in response to
consumer demand). One food industry publication
reported on a study showing 35% of consumers will
pay a 20% premium for a food product that
“supports/is fair to local and global workers and
communities” or “aligns with my personal values,
morals, ethics and/or beliefs.” Steve Williams, More
people will pay premium prices for products from
“sustainable” companies, Snack Food & Wholesale
Bakery (Sept. 14, 2017). 14 Conversely, almost 25% of
consumers have stopped purchasing products from a
company that does not meet their standards for
“environmental or social responsibility.” Id.
Consumers who reward these food producers will
create a larger market that welcomes additional
producers. See Lisa Lockwood, Consumer Demand for
Sustainable Products and Business Practices Spikes
During Pandemic, Women’s Wear Daily (Mar. 30,
2021). 15 And stakeholders retain the ability to
convince corporate boards to adopt policies consistent
with their values. See Patrick Thomas, Carl Icahn
Targets Kroger Over Pork, CEO Pay, Wall St. J. (Mar.
12 https://www.foodbeverageinsider.com/sustainability/
consumers-willing-pay-sustainable-products.
13 https://www.wsj.com/articles/cal-maine-steps-up-investmentto-meet-demand-for-cage-free-eggs-11649107116.
14 https://www.snackandbakery.com/articles/90662-more-peoplewill-pay-premium-prices-for-products-from-sustainablecompanies.
15
https://wwd.com/sustainability/materials/consumer-demandspikes-for-sustainable-products-and-business-practices-duringpandemic-1234790172/.
19
29, 2022) (investor seeks two board seats to push for
adoption of certain farming practices for suppliers). 16
There are many ways in which a state may
promote its goals for the betterment of humanity and
our planet. For example, California authorizes public
employees to travel only to states that share
California’s social values. See NPR, California Bans
State Travel to Florida and 4 Other States (June 29,
States
may
issue
public
service
2021). 17
announcements advising consumers about products,
even urging them not to purchase them. See Cal. Dep’t
of Public Health, CDPH Launches New Campaign to
Combat Teen Vaping (Aug. 9, 2021). 18 But no state
may steal each individual’s—and other states’—
ability to prioritize and balance competing values.
States, producers, and consumers consider many
factors when weighing the benefits of both animal
welfare and affordable food; no one state may impose
its judgment on the nation as a whole.
16
https://www.wsj.com/articles/carl-icahn-targets-kroger-overpork-ceo-pay-11648594425.
17
https://www.npr.org/2021/06/29/1011253354/california-bansstate-travel-to-florida-and-4-other-states-lgbtq.
Currently,
California bans employee travel to 17 states because it
disapproves of those states’ laws regarding the “LGBTQ
community.” Id.
18 https://www.cdph.ca.gov/Programs/OPA/Pages/NR21245.aspx.
20
Conclusion
The decision below should be reversed.
DATED: June 2022.
Respectfully submitted,
ADITYA DYNAR
Pacific Legal Foundation
3100 Clarendon Blvd.,
Suite 610
Arlington, Virginia 22201
(202) 807-4472
ADynar@pacificlegal.org
DEBORAH J. LA FETRA
Counsel of Record
Pacific Legal Foundation
555 Capitol Mall, Suite 1290
Sacramento, California 95814
(916) 419-7111
DLaFetra@pacificlegal.org
Counsel for Amicus Curiae Pacific Legal Foundation
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.