<i>Pork Producers</i>, Product Bans, and Petering Out Dormant Commerce Clause Extraterritoriality Inquiries

Constitutional commentary on the dormant Commerce Clause (DCC) reflects the Court’s persistent failure to appreciate how the clause’s contemporary application is problematic. The 2023 Pork Producers case was a propitious opportunity for the Court to resolve lingering issues, such as whether the DCC ought to include an inquiry into whether a subnational regulation produces impermissible extraterritorial effects, or whether the Pike v. Bruce Church balancing test remains an apt function for the judiciary. The Court squandered that opportunity, unfortunately. And this article examines how that transpired.

It explores how product bans, such as the one adopted by California for humane treatment of pigs, enjoy a long lineage and, absent intentional discrimination, should avoid constitutional scrutiny under the DCC. When examining the fractured opinions in the case, it further suggests that the Court overlooks how both the extraterritoriality component of the DCC and the balancing test evolved and why they should be jettisoned in lieu of focusing on whether a subnational program involves intentional discrimination as a product of rent seeking behavior.