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Abstract

National Pork Producers Council v. Ross is a dormant Commerce Clause case in which petitioners challenged a California law that restricts the instate sale of pork that comes from breeding pigs “confined in a cruel manner.” Because California comprises 13% of the national pork market, and because most pork consumed in California is raised in other states, the cost of compliance with the law falls largely on out-of-state producers. Pork Producers claimed that the California law placed an excessively heavy burden on interstate commerce, but they did not claim that California targeted out-of-state producers. The Court of Appeals dismissed the case for failure to state a claim, and the Supreme Court affirmed.

This Article first provides a summary of the facts of the case and basic dormant Commerce Clause doctrine, followed by a description and comparison of the various positions that the Justices took regarding two basic matters—the failure to state a claim and the continuing viability of the Pike balancing test. A majority of the Justices agreed that petitioners failed to provide evidence of a sufficient burden to state a claim, but they did not agree on a rationale. None of the Justices said that the Court should abandon the Pike balancing test, but three of the Justices did indicate that the types of cases to which the test is applied should be limited.

The focus then shifts to reconstructing a proper understanding of Chief Justice Marshall’s Commerce Clause jurisprudence, starting with the framework for legal analysis that he set out in McCulloch v. Maryland. Next, the importance of the object test that he identified in Gibbons v. Ogden and applied in Willson v. Blackbird Creek is highlighted. Before applying Marshall’s dormant Commerce Clause doctrine to the facts of National Pork Producers, this Article briefly traces the demise of Marshall’s Commerce Clause legacy beginning with Cooley v. Board of Wardens. Marshall would likely have reached the same conclusion as the Court did in National Pork Producers but for very different reasons.

Lastly, biblical guidelines can properly be used to justify and inform California’s exercise of its police powers in this case. The Bible also provides a vision for prosperity and peace that informs a proper understanding of our constitutional order designed to establish a free and common market and to ensure national security.

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