Skip to content

Jack Landman Goldsmith & Alan Sykes, The California Effect, Process-Based Regulations, and the Dormant Commerce Clause (Harv. Pub. L. Working Paper No. 22-35, Oct. 2, 2022).

Abstract: On October 11, 2022, the Supreme Court will hear a case, National Pork Producers Council v. Ross, that asks whether California can, consistent with the Dormant Commerce Clause (DCC), ban the sale of pork meat in the state that is not sourced from a pig raised humanely by California standards. The petitioners in Ross claim that the California animal welfare law violates the extraterritoriality prong of the DCC because it has a huge impact on the pork production processes and costs in other states, and violates Pike balancing as well. Ross could be one of the most consequential DCC cases in decades. It squarely raises both the continuing validity of the contested extraterritoriality doctrine, and the issue of judicial competence to do Pike balancing. And it raises these issues in an unusual doctrinal context. First, Ross asks whether and how the so-called “California effect” implicates the DCC. The California effect occurs when a large state’s relatively strict regulation becomes the de facto standard in many smaller states because it is cheaper for producers in the smaller states to comply with the regulation than it is to withdraw from the large market or devise multiple production lines. The result can be that consumers in smaller states pay more for a product due to producers’ responses to the large-state regulation. The validity of laws with this effect has never been directly addressed in Supreme Court DCC jurisprudence. Second, Ross raises the issue whether California can regulate the sale of a product (pork) not based on the characteristics or quality of the product, but rather based on how it is produced in other jurisdictions. Such “process-based regulation” of goods produced in another jurisdiction raises concerns that have been much-discussed and litigated under international trade law, but not in the Court’s DCC jurisprudence. These novel issues come before a Court in transition. The DCC has been under attack from some members of the Court—especially Justices Scalia and Thomas—for a long time. In recent years four new Justices have joined the Court. Justice Gorsuch questioned the independent validity of the extraterritoriality prong in the court of appeals and has filed one opinion in the Supreme Court that evinces skepticism toward a robust reading of the DCC. Justices Kavanaugh, Barrett and Jackson did not rule on a DCC issue in the lower courts and have not yet cast a meaningful vote in a DCC case at the Supreme Court. This essay sets forth our thoughts on Ross. As in a previous article, our thinking is influenced by Supreme Court doctrine and by the economics of state regulation of transborder transactions. We use economics to understand the DCC because the primary justification for the DCC is an efficiency criterion: to ensure free trade and associated benefits in interstate transactions. We, like others, including many on the Court, think that the efficiency criterion provides the best normative account of the DCC, and provides a sound way to analyze novel problems that arise under the DCC. Our conclusions, in a nutshell, are as follows: (1) The California animal welfare law raises potential efficiency concerns from a national perspective due to the costs it might impose in other states; (2) whether the law is actually inefficient in the aggregate (and thus violates the DCC) is a complicated empirical question; (3) absent a sea change in their approach DCC cases, federal courts lack the resources and tools to sort out this empirical question, whether under the rubric of Pike balancing or extraterritoriality; (4) the process-based element of the California law raises slippery-slope concerns to which the Court should be attentive, but which the Court currently lacks doctrinal tools to resolve; (5) international trade law has addressed process-based regulations for decades, and has come to an uneasy acceptance of them, perhaps in part because the slippery-slope concerns have not materialized; and (6) the Court should consider more targeted and less-demanding doctrinal tools than Pike balancing and extraterritoriality, drawn from international trade law, to address DCC concerns about the California law.