Can Pigs Still Fly?

Next Term the Supreme Court will hear National Pork Producers Council v. Ross, a Dormant Commerce Clause case challenging the validity of California's Proposition 12. Proposition 12 bars the sale of pork that does not meet the state's stringent animal care standards for the pigs, and pork producers from other states are mounting a challenge. Setting aside how that case should be decided, I want to pose a broader question about the precarious state of Dormant Commerce Clause doctrine.

Let's start with the fact that the Dormant Commerce Clause is not in the text and is not part of the Constitution's original public meaning. Seven years ago in dissent, Justice Scalia (joined by Justice Thomas) pointed this out and called the doctrine a "judicial fraud." Pork is the first case since then that brings the doctrine before the Court. Perhaps other Justices will now agree with Justice Scalia's view, which is more consistent with the current Court's overall interpretive approach.

Moreover, the Dormant Commerce Clause runs into the same objections that support the non-delegation arguments that some members of the Court embrace. There is no delegation by Congress to the federal courts to decide a case like Pork. If the absence of such a delegation is fatal to, say, the EPA's authority to act, why are the federal courts any different? They are, after all, equally unaccountable. Plus, as Justice Scalia explained in his 2015 dissent: "The doctrine does not call upon us to perform a conventional judicial function, like interpreting a legal text, discerning a legal tradition, or even applying a stable body of precedents. It instead requires us to balance the needs of commerce against the needs of state governments. That is a task for legislators, not judges."

Stare decisis, of course, is the strongest argument in favor of the doctrine. But stare decisis is indisposed right now, so that cannot be counted on to defend a doctrine that is out of sync with wider developments.

Nobody is asking the Court to overrule its Dormant Commerce Clause cases in Pork. But who knows?

UPDATE: A reader correctly points out that the Court did address the Dormant Commerce Clause in a 21st Amendment case decided in 2019. (Tennessee Wine and Spirits) I think of the 21st Amendment cases as a separate category, which explains my error. So perhaps the doctrine is safer than I said in the post.