The U.S. Supreme Court’s recent decision to uphold a California law will allow the state to use its massive economy to force pork producers nationwide to abide by its law.
And that decision is raising questions about how it aligns with the Constitution's Commerce Clause that previously prevented a single state from unduly burdening how others do business.
Among the many friend of the court, or amicus, briefs submitted to the Supreme Court in National Pork Producers v. Ross, industry groups nationwide urged the court not to allow California to apply its regulations in their states because of the ample constraints.
Erik Jaffe
| Schaerr | Jaffe, LLP
California raises less than 1 percent of the nation’s breeding herd, and applying its rules to the 49 other states presents tremendous economic and social consequences, Erik Jaffe, partner, Schaerr | Jaffe, LLP, and counsel for the amicus curiae, told the Northern California Record by email.
“The near-term impact for consumers in California and elsewhere will be an increase in prices for pork, as we note in the first part of our brief,” Jaffe said. “The longer-term impact may be a functional trade war among States seeking to use access to their markets to drive economic and social policy and to hide their protectionist motives under a veneer of moral concerns.”
The 5-4 SCOTUS ruling was issued May 11.
“My clients and I were, of course, disappointed in the very fractured ruling,” Jaffe said. “Not only were we disappointed in the result, but the deeply divided lineup of votes and opinions makes it very difficult for businesses to predict how future state legislation will be treated absent very overt evidence of intentional discrimination. Presumably, any clever State desiring to discriminate against commerce from other States will be sufficiently careful not to provide such clear evidence of their intentions.”
The brief notes that the benefits of the federal Commerce Clause have been “unmoored” by recent legal challenges.
“Most important for people to know is that the Supreme Court is now less likely to intervene in these cross-border economic and social battles, and that the constitutional protections designed to limit the ability of States to engage in such extraterritorial efforts are unlikely to be revived any time soon,” Jaffe said. “The venue for such disputes will now have to shift to state legislatures and, as the back-and-forth imposition of state policies on their sister States escalates, to Congress to legislate against such interference with interstate commerce.”