Doug Kysar

National Pork Producers Council v. Ross: What Just Happened?

Doug Kysar

When the Supreme Court declined to overturn a Ninth Circuit opinion which had dismissed a constitutional challenge to California’s Proposition 12, the decision was rightly hailed by the animal protection movement as a major victory. Had the case – National Pork Producers Council v. Ross – gone the other way, it would have undone more than two decades of creative and tireless advocacy by the Humane Society of the United States and other organizations to utilize ballot initiatives and other state and local lawmaking avenues to effectuate significant advances for animal well-being, including in areas like farmed animal welfare where progress has been historically elusive. Defending the law at the Supreme Court level required an immense amount of thought and effort, and all those who led and joined the effort should be congratulated.

While Proposition 12 has survived a potentially devastating challenge, the lasting impact of National Pork Producers and the future of animal welfare laws like Proposition 12 remains, unfortunately, quite uncertain. Somewhat lost in the popular reporting on the case was the badly – indeed, weirdly – fractured nature of the Court’s opinions. As a result, the animal protection movement’s victory may have appeared more expansive than it actually was, at least as a formal doctrinal matter. This inaugural Brooks Animal Law Digest Perspective offers a breakdown of what the Court did and did not hold, along with brief thoughts on what that breakdown portends. To get a sense of what lies ahead, Figure 1 reproduces the visual crutch needed by the author merely to track the various shifting alliances and opinions that comprise the Court’s judgment, such as it was.

Figure 1

Figure 1

At issue in National Pork Producers was the constitutionality of California’s Proposition 12, which bans the sale in California of whole pork meat from animals confined in a manner contrary to certain standards said by the state to promote animal welfare and human health and safety. Proposition 12, which was passed by a sizable majority of California voters in 2018, bans the sale of such products in the state of California irrespective of whether the products were sourced from animals raised outside of California. Violators of Proposition 12 are subject to criminal penalties, including jail time, and the measure may also be enforced through private civil lawsuits.

The National Pork Producers Council and the American Farm Bureau Federation (the “petitioners”) filed suit in federal court to challenge Proposition 12 under the Dormant Commerce Clause (“DCC”), arguing that the sales ban (i) impermissibly regulates extraterritorial conduct by requiring out-of-state producers to change their operations to meet California standards, and (ii) imposes excessive burdens on interstate commerce by significantly increasing operation costs and changing market structure without advancing legitimate local interests. Both the district court and a panel of the Ninth Circuit Court of Appeals dismissed the Council’s complaint, concluding that Proposition 12 does not impermissibly control extraterritorial conduct and does not impose an excessive burden on interstate commerce. On March 28, 2022, the Supreme Court granted review. A little over a year later, the Court announced its judgment.

Justice Gorsuch delivered the Court’s holding but commanded a majority of five justices only for a portion of his reasoning. Importantly, five justices clearly acknowledged in Part I of Gorsuch’s opinion the long history of state laws aimed at preventing animal cruelty, appearing to accept the notion that state promotion of animal welfare is clearly within a state’s police powers to pursue. Notably, the majority did not address whether state promotion of animal welfare that occurs purely outside its territory represents a legitimate state interest. The Biden Administration, for its part, had argued in favor of the petitioners on the ground that California should not be seen as holding a legitimate state interest in the welfare of livestock animals outside of its territory. Fortunately or unfortunately, the question remains unresolved following the case. More clearly established is the fact that the majority (and, indeed, all of the justices in one way or another) rejected the effort by the petitioners to fashion from the Court’s scattered and ambiguous prior case law a per se rule of invalidity based solely on extraterritorial regulatory impacts. For the majority, those prior cases are better understood as using extraterritoriality to indicate illicit state protectionism, rather than seeing extraterritoriality as inherently objectionable on its own. Likewise, a majority interpreted the Pike balancing test as often being used to ferret out discrimination. For these justices, seeing both extraterritoriality and Pike balancing as primarily focused on state discrimination was problematic for the petitioners because they “nowhere suggest[ed] that an examination of Proposition 12’s practical effects in operation would disclose purposeful discrimination against out-of-state businesses.” So far, so good.

At this point in Gorusch’s opinion, however, things got messy. For Part IV.B, Gorsuch was joined only by Justices Thomas and Barrett. In this Part, Gorsuch went after Pike balancing in a more fundamental way, arguing that the test “authoriz[es] judges to strike down duly enacted state laws regulating the in-state sale of ordinary consumer goods (like pork) based on nothing more than their own assessment of the relevant law’s ‘costs’ and ‘benefits.’” Like Justice Scalia before him, Gorsuch holds a dim view of balancing as a jurisprudential style, especially in the DCC context. Indeed, Gorsuch in National Pork Producers quoted a memorable line in which Scalia likened judicial balancing tests to being asked “whether a particular line is longer than a particular rock is heavy.” Witticisms aside, Gorsuch will have to wait for another day to strike down the Pike balancing test, having failed to lure two more justices to join Part IV.B.

In Part IV.C of his opinion, Gorsuch lost Barrett but gained Sotomayor and Kagan – still a mere plurality of four justices. In this Part, Gorsuch concluded that the petitioners have not shown that Proposition 12 substantially burdens interstate commerce, even before getting to the question of whether the local benefits of the law outweigh the interstate burdens. Gorsuch’s argument is subtle and significant – it essentially limits cognizable interstate commerce burdens to those that would arguably violate the antidiscrimination principle. For Gorsuch, it is critical that out-of-state producers enjoy choice in how to respond to Proposition 12: “They may provide all their pigs the space the law requires; they may segregate their operations to ensure pork products entering California meet its standards; or they may withdraw from that State’s market.” Thus, while it is likely that Proposition 12 will result in some restructuring of the national pork market, with some producers choosing to retain access to California’s market and others declining to do so, interstate commerce itself is not unduly burdened in Gorsuch’s view. Out-of-state producers are not treated any differently than in-state producers, and their conduct is not coercively controlled in a way that would clearly exceed California’s sovereign authority. Again, though, these views did not command a majority of justices. Whether they would satisfy the so-called “narrowest grounds” rule for interpreting divided Supreme Court decisions is difficult to predict, especially given the convoluted reasoning adopted by Barrett in her concurrence.

In Part IV.D, Gorsuch regained Barrett but lost Sotomayor and Kagan – hence, back down to three justices. This Part critiqued the lead dissent by Chief Justice Roberts for endorsing a form of what Gorsuch sees as judicial lawmaking: “[T]he lead dissent seems to advance a reading of Pike that would permit judges to enjoin the enforcement of any state law restricting the sale of an ordinary consumer good if the law threatens an ‘excessive’ ‘har[m] to the interstate market’ for that good.” Interestingly for animal advocates, Gorsuch used state bans on the sale of horsemeat as an example of a law that might be vulnerable to constitutional challenge under the open-ended Pike balancing test: “[A]ll it would take is one complaint from an unhappy out-of-state producer and – presto – the Constitution would protect the sale of horsemeat. Just find a judge anywhere in the country who considers the burden to producers ‘excessive.’” Gorsuch here also flatly rejected giving any weight to the so-called “California Effect,” i.e., the fact that, because California is such a massive economic market, the standards that it imposes domestically can work in practice to establish standards for the national market. As Gorsuch argued (rightly in this author’s view but not with the support of a majority of the Court), giving constitutional weight to the California Effect would violate a principle of formal equality between states: If the size of the market “makes all the difference, it means voters in States with smaller markets are constitutionally entitled to greater authority to regulate instate sales than voters in States with larger markets.” Finally, Gorsuch rejected the Roberts dissent’s characterization of cognizable costs for purposes of Pike balancing as including broad “social costs that are ‘difficult to quantify’ such as (in this case) costs to the ‘national pig population,’ ‘animal husbandry’ traditions, and (again) ‘industry practice.’” Again, only two other justices joined Gorsuch in these thoughts.

Four justices wrote separate opinions. First, writing only for herself and Justice Kagan, Justice Sotomayor emphasized that she “vote[s] to affirm the judgment because petitioners fail to allege a substantial burden on interstate commerce as required by Pike, not because of any fundamental reworking of that doctrine.” She stressed that, in her view, Pike balancing has survived this case and will continue to leave “the courtroom door open to claims premised even on nondiscriminatory burdens.” One example of such nondiscriminatory burdens that might trigger a Pike challenge are “state laws that impose burdens on the arteries of commerce,” e.g., “trucks, trains, and the like.” But other kinds of nondiscriminatory burdens might also qualify. Thus, for Sotomayor, “petitioners’ failure to allege discrimination or an impact on the instrumentalities of commerce does not doom their Pike claim.” And because, as Sotomayor noted, the lead dissent by Roberts agreed with this point and because Roberts is joined by three other dissenters, it remains the law in the United States that even an absence of discrimination or a burden on the “arteries of commerce” does not end analysis under the DCC.

The next justice to write separately was Justice Barrett but her opinion will be saved for last because of its unusual and provocative nature. The main dissent was authored by Roberts and joined by Justices Alito, Kavanaugh, and Jackson. Roberts agreed that much of DCC analysis is about trying to stop state discrimination and he also agrees that a per se extraterritoriality rule is unacceptable. But he defended Pike balancing and, as Sotomayor noted, he did not close the door to nondiscriminatory burdens being ruled unconstitutional under that test. Indeed, Roberts concluded that “[p]etitioners identify broader, market-wide consequences of compliance – economic harms that our precedents have recognized can amount to a burden on interstate commerce.” He detailed factual allegations by the Council regarding the costliness and difficulty of compliance for the industry. He even appeared to endorse the California Effect as a practical phenomenon that might constitute a substantial burden on interstate commerce, notwithstanding the formal state equality objection raised by Gorsuch. For Roberts and his three fellow dissenters, significant extraterritorial regulatory effects can be considered as part of the burden to be weighed under Pike. To limit the expansiveness of his approach, Roberts tried to draw a distinction between mere costs of compliance and what he calls “industry-wide harms,” arguing that petitioners had adequately alleged the latter in this case.

Justice Kavanaugh wrote a separate dissent in which he offered something of a road map of other constitutional challenges that he believes could be brought against laws like Proposition 12, including challenges under the Import-Export Clause, the Privileges and Immunities Clause, and the Full Faith and Credit Clause. Kavanaugh also noted that, if one ignores the health risks associated with non-compliant pork products alleged by California, Proposition 12 appears to constitute pure moral legislation governing practices that occur wholly outside the state of California, a form of state action that Kavanaugh calls “something quite different and unusual.” He expressed worry that the Court’s apparent endorsement of Proposition 12 might embolden a kind of state level economic warfare driven not by protectionism but by competing moral worldviews: “[W]hat if a state law prohibits the sale of fruit picked by noncitizens who are unlawfully in the country? What if a state law prohibits the sale of goods produced by workers paid less than $20 per hour? Or . . . what if a state law prohibits the retail sale of goods from producers that do not pay for employees’ birth control or abortions (or alternatively, that do pay for employees’ birth control or abortions)?”

Kavanaugh is perhaps right not to feel entirely sanguine with respect to Proposition 12 and the possibility of state-level regulatory warfare being utilized to fill the gaps left by dysfunctional national lawmaking. It is both a feature and a bug of the federalist system that states can attempt to influence national outcomes by regulating at nodal points within the system. As Proposition 12 demonstrates, state visions of the socially appropriate conditions of production can be pursued both internally, by direct regulation of in-state producers, and externally, by the indirect influence exerted on out-of-state producers through import conditions. Importantly, it is not only progressive states like California that can utilize nodal regulations to attempt to shape the economy and culture of the nation. On issues ranging from abortion travel to alternative protein labeling to socially responsible investment, lawmakers in conservative states have begun to show remarkable creativity and eagerness to use various forms of nodal regulation to project their policy positions and moral worldviews both within and across territorial borders.

Enter Justice Barrett, whose solely authored opinion gives rise to the indeterminate and vexing nature of National Pork Producers as a precedent. Despite joining the portions of Gorsuch’s opinion that had appeared designed to kill off Pike balancing entirely, Justice Barrett instead articulated a view in which the Pike test continues as part of DCC jurisprudence, but only in cases that do not involve benefits and burdens that are “incommensurable.” Certain forms of state legislation give rise to benefits that, in Barrett’s view, are not amenable to judicial weighing: “California’s interest in eliminating allegedly inhumane products from its markets cannot be weighed on a scale opposite dollars and cents – at least not without second-guessing the moral judgments of California voters or making the kind of policy decisions reserved for politicians.” This aspect of Barrett’s opinion can be read as a response to Kavanaugh’s fear of interstate moral warfare being meted out through economic regulations with extraterritorial impact: “Bring it on!” Barrett seems to say, perhaps imagining a post-Dobbs landscape in which state legislatures can creatively and aggressively attempt to constrain reproductive rights outside their borders through Proposition 12-style laws. At least on Barrett’s account, such laws would be insulated against constitutional challenge since they would be seen to promote the “incommensurable” value of a moral view, rather than protectionism or mere economic costs and benefits. 

But then, Barrett threw in a wild card: She closed her brief concurrence by saying that she agrees with the Roberts plurality that Proposition 12 imposes a substantial burden on interstate commerce, notwithstanding her view that Proposition 12 is a form of moral legislation that cannot be appropriately evaluated under Pike balancing. For those keeping score at home, we now see that – despite Gorsuch having written the opinion of the Court and despite the Court holding that the Ninth Circuit opinion dismissing the constitutional challenge to Proposition 12 stands – we have not actually gained much clarity on the issues raised by the case apart from the decisive rejection of extraterritoriality as a standalone per se rule of invalidity. Indeed, we cannot be sure that Proposition 12 and laws like it really are constitutional. That is because, when you add Barrett to the four dissenters, you have a majority of justices finding that Proposition 12 does impose a substantial burden on interstate commerce. And when you add Sotomayor and Kagan to the four dissenters, you have a different majority of justices believing that Pike balancing remains an appropriate test for DCC violations, potentially even in the absence of state discrimination or a direct impact on the “arteries of commerce.” Only the odd splintering of Sotomayor and Kagan, on the one hand, and Barrett, on the other, prevented Chief Justice Roberts’s opinion from being the Court’s majority ruling. And the Chief’s opinion, from the perspective of the animal protection movement, was not good.

What this means, in practice, is that the pork industry can with justification claim that the constitutionality of state laws like Proposition 12 remains uncertain, notwithstanding the formal outcome of the case. Thus, the meat industry might still challenge similar laws from different states, such as Question 3 in Massachusetts, in order to try to generate a circuit split with the Ninth Circuit decision that was upheld in National Pork Producers. Even Proposition 12 itself might be challenged, perhaps by different plaintiffs, in an effort to overcome the pleading deficiency that only a plurality of justices agreed existed. Likewise, the further constitutional challenges roadmap provided by Kavanaugh will not go unnoticed by the industry and nothing in the National Pork Producers opinions forecloses a sympathetic court from accepting one or more of those arguments.

Whether the industry will feel it is worthwhile to pursue these various potential avenues of relief depends not only on the state of legal doctrine, but also on the economic, reputational, and other practical costs of litigating. Already, at least one separate challenge to Proposition 12 was voluntarily dismissed following the National Pork Producers decision, suggesting that the challengers in that case no longer felt the battle was worth pursuing against a lowered likelihood of success. It also bears noting that a challenge arising under the Pike balancing test would expose the industry to intrusive and potentially damaging factfinding in a way that the attempted per se rule of extraterritoriality would not have. Still, as was seen during the height of the covid pandemic, the meat industry seems willing to take extreme, even reckless measures in order to preserve its revenue stream. Pursuing a costly scorched earth legal campaign against Proposition 12 seems mild in comparison to the knowing exposure of slaughterhouse workers to an elevated risk of death.

In short, National Pork Producers was indeed a landmark chapter in the story of the modern animal protection movement. Whether it will be the final word on the constitutionality of Proposition 12 and similar laws remains to be seen.


Perspectives is a reflective column by a notable scholar or practitioner, offering fresh and synergistic thinking on a recent topic in animal law. This Perspectives piece expresses the views of the author, and such views should not be attributed to any other person or organization.