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Congressional
R' fesearch Service
Supreme Court Narrows Dormant Commerce
Clause and Upholds State Animal Welfare
Law
August 31, 2023
On May 11, 2023, the Supreme Court upheld a California rule (Proposition 12) banning the in-state sale
of whole pork meat from pigs that had been confined in a cruel manner, even if those pigs were
confined in another state. In National Pork Producers Council v. Ross, the Court held that Proposition 12
did not violate the dormant Commerce Clause, which bars state laws that unduly restrict interstate
commerce. In general, the Court's decision narrows the dormant Commerce Clause doctrine by rejecting a
per se rule against nondiscriminatory state regulations that affect out-of-state interests. However, the
Justices fractured over which legal standard to apply in evaluating Proposition 12. The five opinions
authored in the case reveal extensive disagreements among the Justices that do not follow typical
ideological fault lines, but they offer little clarity about the continued relevance of the dormant Commerce
Clause or the way in which the Court will apply various lines of precedent in future cases.
Overview of the Dormant Commerce Clause
Article I, Section 8, Clause 3 of the Constitution provides that [t]he Congress shall have Power ... [t]o
regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.
Although the Commerce Clause is framed as a positive grant of power to Congress and not an explicit
limit on states' authority, the Supreme Court has interpreted this 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.
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 by
enacting laws that are driven by economic protectionism or designed to benefit in-state economic
interests by burdening out-of-state competitors. A law that clearly discriminates against out-of-state
goods or nonresident economic actors will generally be struck down unless the regulatory entity meets the
burden of showing that it is narrowly tailored to advance a legitimate local purpose and that there is no
reasonable, nondiscriminatory regulatory alternative.
Congressional Research Service
https://crsreports.congress.gov
LSB11031
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