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91 Geo. Wash. L. Rev. Arguendo 1 (2022-2023)

handle is hein.journals/gwargu91 and id is 1 raw text is: National Pork is a Bibb Case, Not a Pike Case Michael S. Knoll and Ruth Mason* TABLE OF CONTENTS I. THE NATIONAL PORK CASE............................................................ 2 II. BACKGROUND ON THE DORMANT COMMERCE CLAUSE .................. 2 III. DORMANT COMMERCE CLAUSE LIMITS ON REGULATORY D IV E R SIT Y ....................................................................................... 3 IV. NATIONAL PORK AS A MISMATCH CASE ........................................ 6 A. Measuring the Burden in National Pork .................................6 B. Measuring California's Interest in Proposition 12 ................7 1. Protectionism ................................................................. . . 8 2. Preventing Offense As a Legitimate State Interest...........8 V. FEDERALISM IMPLICATIONS OF NATIONAL PORK......................... 11 In October 2022, the U.S. Supreme Court heard oral argument in National Pork Producers Council v. Ross,' a Ninth Circuit case out of California, dismissing a challenge to Proposition 12,2 which, inter alia, bans the sale of wholesome pork (without regard to where it was produced) from the offspring of breeding sows confined in a manner California voters consider cruel.3 National Pork thus puts the Court in the position of choosing between the often-criticized undue-burden strand of the dormant Commerce Clause and California's request that the Court approve its ban on out-of-state pork not because of the products' qualities, but merely because Californians are offended by the manner in which such pork was produced. The parties in the case and most of the amici rightly argue that the case must be analyzed using undue-burden balancing,. Relying on Bibb Balancing, an article we wrote that is forthcoming in this Journal,4 this Note explains that regulatory mismatch cases receive a different kind of balancing analysis * Michael S. Knoll is the Theodore Warner Professor, University of Pennsylvania Carey Law School, Professor of Real Estate, Wharton, and Co-Director, Center for Tax Law and Policy, University of Pennsylvania. Ruth Mason is the Edwin S. Cohen Distinguished Professor of Law and Taxation, University of Virginia School of Law. i 6 F.4th 1021 (9th Cir. 2021). 2 Cal. Proposition 12, codified at CAL. HEALTH & SAFETY CODE § 25990 (West 2018). 3 CAL. HEALTH & SAFETY CODE § 25990(b)(2) (West 2018) (covered animal who was confined in a cruel manner, or is the meat of immediate offspring of a covered animal who was confined in a cruel manner). 4 Michael S. Knoll & Ruth Mason, Bibb Balancing, 91 GEo. WASH. L. REv. (forthcoming 2023). November 2022 Vol. 91 Arguendo 1

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