Article I, Section 8, Clause 3:

[The Congress shall have Power . . . ] To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes; . . .

Even as the Commerce Clause empowers Congress to pass federal laws, it has also come to limit state authority to regulate commerce. In contrast to the doctrine of preemption, which generally applies in areas where Congress has acted,1 the so-called “Dormant” Commerce Clause may bar state or local regulations even where there is no relevant congressional legislation. Although the Commerce Clause “is framed as a positive grant of power to Congress” and not an explicit limit on states’ authority,2 the Supreme Court has also interpreted the Clause to prohibit state laws that unduly restrict interstate commerce even in the absence of congressional legislation—i.e., where Congress is “dormant.” This “negative” or “dormant” interpretation of the Commerce Clause “prevents the States from adopting protectionist measures and thus preserves a national market for goods and services.” 3

The Supreme Court has identified two principles that animate its modern Dormant Commerce Clause analysis. First, subject to certain exceptions, states may not discriminate against interstate commerce.4 Second, states may not take actions that are facially neutral but unduly burden interstate commerce.5

On May 11, 2023, the Supreme Court issued an opinion in National Pork Producers Council v. Ross affirming a lower court decision dismissing a lawsuit that California’s Proposition 12, which forbids selling pork from certain pigs that are “confined in a cruel manner,” violates the Dormant Commerce Clause.6 In reaching its decision, the Court rejected an argument that Proposition 12 violated an “extraterritoriality doctrine” that would “forbid[] enforcement of state laws that have the ‘practical effect of controlling commerce outside the State,’ even when those laws do not purposely discriminate against out-of-state economic interests.” 7 The Court also rejected an argument that Proposition 12 violated the Dormant Commerce Clause under the Pike v. Bruce Church Inc. line of cases, which the petitioners had argued provides that courts should “assess ‘the burden imposed on interstate commerce’ by a state law and prevent its enforcement if the law’s burdens are ‘clearly excessive in relation to the putative local benefits.’” 8

Footnotes

1

See ArtVI.C2.3.3 New Deal and Presumption Against Preemption.

2

Comptroller of Treasury of Md. v. Wynne, 575 U.S. 542, 548–549 (2015).

3

Tenn. Wine & Spirits Retailers Ass’n v. Thomas, 139 S. Ct. 2449, 2459 (2019); see also H. P. Hood & Sons, Inc. v. Du Mond, 336 U.S. 525, 537–38 (1949) ( “This principle that our economic unit is the Nation, which alone has the gamut of powers necessary to control of the economy, including the vital power of erecting customs barriers against foreign competition, has as its corollary that the states are not separable economic units.” ); Baldwin v. G.A.F. Seelig, Inc., 294 U.S. 511, 527 (1935), ( “What is ultimate is the principle that one state in its dealings with another may not place itself in a position of economic isolation.” ).

4

E.g., South Dakota v. Wayfair, Inc., 138 S. Ct. 2080, 2090–2091 (2018).

5

Id.

6

No. 21-468, slip op. (U.S. May 11, 2023).

7

Id. at 9.

8

397 U.S. 137 (1970); National Pork, No. 21-468, slip op. at 15.