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High Court’s pork ruling adds commerce clause complexity – Law360


Law360 (May 12, 2023, 10:00 PM EDT) — When the U.S. Supreme Court backed a California law changing its standards for pig breeding, it did so through five different opinions highlighting fractures among the justices on how to analyze claims that state regulations unfairly discriminate against out-of-state interests.

A 5-4 majority of the court agreed that California’s Proposition 12, which bans in-state sales of meat from pigs born to mothers confined in small spaces, does not violate a constitutional provision known as the dormant commerce clause, which generally prevents states from discriminating against out-of-state businesses and interstate commerce.

But the justices in the majority fragmented on the reasoning behind that outcome, particularly in their interpretations of court precedent on the dormant commerce clause. Those fractures make it difficult for litigants and lower courts to know how to evaluate state regulations that are criticized as discriminatory to out-of-state companies. And it means the court eventually will have to return to the issue. . . .

“When you get an opinion like this as a practitioner, it requires thorough analysis to determine not only where everyone fell but specifically why, because subsequent cases will end up turning on the subtle differences in reasoning that caused two justices to go one way and four the other,” said Tillman Breckenridge, an appellate litigator at Stris Maher LLP. . . .

“I think fractured opinions end up creating situations where it’s not necessarily a hint from the court that it wants to revisit an issue, but where the court ultimately might have to because of the lack of clarity,” Breckenridge said.

The case is National Pork Producers Council et al. v. Ross et al., case number 21-468, before the Supreme Court of the United States.

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