National Pork Producers Council v. Ross

[Argued October 11, 2022. Decided May 11, 2023, on certiorari to the United States Court of Appeals for the Ninth Circuit, 6 F. 4th 1021 (2021), affirming 456 F. Supp. 3d 1201 (S.D. Cal. 2020). Disposition: “The judgment of the Ninth Circuit is Affirmed.” The case reached the Court on a motion to dismiss, so every factual allegation below is taken as true — nothing has been tried.]

[The Reporter’s line-up, verbatim: “GORSUCH, J., announced the judgment of the Court, and delivered the opinion of the Court with respect to Parts I, II, III, IV–A, and V, in which THOMAS, SOTOMAYOR, KAGAN, and BARRETT, JJ., joined, an opinion with respect to Parts IV–B and IV–D, in which THOMAS and BARRETT, JJ., joined, and an opinion with respect to Part IV–C, in which THOMAS, SOTOMAYOR, and KAGAN, JJ., joined. SOTOMAYOR, J., filed an opinion concurring in part, in which KAGAN, J., joined. BARRETT, J., filed an opinion concurring in part. ROBERTS, C. J., filed an opinion concurring in part and dissenting in part, in which ALITO, KAVANAUGH, and JACKSON, JJ., joined. KAVANAUGH, J., filed an opinion concurring in part and dissenting in part.” No numerical vote is printed anywhere.]

[Read that line-up again, because the whole case is in it. Justice Gorsuch’s opinion is three opinions wearing one set of numbers. Parts I, II, III, IV–A and V are the opinion of the Court — Gorsuch plus Thomas, Sotomayor, Kagan and Barrett, five votes exactly. Parts IV–B and IV–D are a three-Justice plurality (Gorsuch, Thomas, Barrett). Part IV–C is a four-Justice plurality (Gorsuch, Thomas, Sotomayor, Kagan). The Chief Justice and Justice Kavanaugh join no Part of it at all. Each Part below is marked where it changes character. Do not cite a sentence from this case without first checking which Part it sits in.]

[A note on pagination. The page anchors — *363 through *410 — are true United States Reports pages, taken from the preliminary print of volume 598; the words are the slip opinion’s. Brackets give the pages of omitted passages. The Justices cite each other by slip page (“ante, at 18–21”), not by these pages.]

[What to watch for. First, two theories, two very different fates. Petitioners argued (i) an “almost per se” rule against state laws with extraterritorial effects and (ii) Pike balancing. Theory (i) is rejected unanimously — Parts II and III are the opinion of the Court and no Justice defends the extraterritoriality rule. Theory (ii) splinters. Everything you have heard about this case “gutting” Pike concerns a Part that three Justices joined.

Second, count the votes on whether Pike survives. Justice Kavanaugh counts six Justices retaining Pike balancing: the Chief Justice, Alito, Sotomayor, Kagan, Kavanaugh and Jackson. Justice Sotomayor writes separately for the express purpose of saying she votes to affirm “not because of any fundamental reworking of that doctrine.” Justice Barrett agrees the benefits and burdens here are incommensurable but disagrees that the complaint failed to allege a substantial burden. So the case that is taught as the end of Pike contains, in its own pages, six votes for keeping it.

Third, the two grounds of affirmance do not overlap. Gorsuch’s IV–B says courts cannot weigh incommensurable goods. His IV–C says the complaint fails under Exxon for want of a substantial burden. Sotomayor and Kagan join IV–C but not IV–B; Barrett joins IV–B but not IV–C. Five Justices vote to affirm and there is no single reason five of them accept. Footnote 4 confronts this directly: “Today’s decision depends equally on the analysis found in both of these sections; without either, there is no explaining the Court’s judgment affirming the decision below.” Ask yourself what a lower court is supposed to do with that — and whether Marks v. United States helps.

Fourth, the sentence that will outlive the case is in Part V, which IS an opinion of the Court: “‘extreme caution’ is warranted before a court deploys this implied authority,” and striking a democratically adopted state law under the dormant Commerce Clause is a matter of “extreme delicacy,” to be done only “where the infraction is clear.” That is five votes, not three. It is the most consequential holding in the case and it appears in the Part everyone skips.

Fifth, the shape of the fight over what counts as a burden. The Chief Justice’s Part II–A gathers the cases in which compliance costs and “derivative harms” counted; his II–B applies them to this complaint. Barrett’s short opinion is the hinge — she thinks the burden IS substantial and the balancing impossible. Work out which of the four positions on Pike you find defensible before you read the notes.

Sixth, Justice Kavanaugh’s last section is a road map, not a holding. He flags three other clauses as the places this litigation may go next; it is summarized in a bracket. No Justice joins him, and he expressly reserves judgment; read it as an invitation to litigants.]

[This reading is edited. Part V of Justice Gorsuch’s opinion and Justice Barrett’s opinion are given entire; omitted passages elsewhere are summarized in brackets.]

JUSTICE GORSUCH announced the judgment of the Court and delivered the opinion of the Court, except as to Parts IV–B, IV–C, and IV–D.

[Opinion of the Court. Parts I, II, III, IV–A and V — and the unlettered opening of Part IV — are joined by THOMAS, SOTOMAYOR, KAGAN and BARRETT, JJ. Five votes exactly. THE CHIEF JUSTICE and JUSTICE KAVANAUGH join no Part of this opinion.]

*363 What goods belong in our stores? Usually, consumer demand and local laws supply some of the answer. Recently, California adopted just such a law banning the in-state sale of certain pork products derived from breeding pigs confined in stalls so small they cannot lie down, stand up, or turn around. In response, two groups of out-of-state pork *364 producers filed this lawsuit, arguing that the law unconstitutionally interferes with their preferred way of doing business in violation of this Court’s dormant Commerce Clause precedents. Both the district court and court of appeals dismissed the producers’ complaint for failing to state a claim.

We affirm. Companies that choose to sell products in various States must normally comply with the laws of those various States. Assuredly, under this Court’s dormant Commerce Clause decisions, no State may use its laws to discriminate purposefully against out-of-state economic interests. But the pork producers do not suggest that California’s law offends this principle. Instead, they invite us to fashion two new and more aggressive constitutional restrictions on the ability of States to regulate goods sold within their borders. We decline that invitation. While the Constitution addresses many weighty issues, the type of pork chops California merchants may sell is not on that list.

I

[Omitted, at 364–365: the variety of labels in American grocery stores, which the Court says reflects consumer demand “informed by individual taste, health, or moral considerations,” and a survey of state animal-welfare laws from 1641 to the present.]

This case involves a challenge to a California law known as Proposition 12. In November 2018 and with the support of about 63% of participating voters, California adopted a ballot initiative that revised the State’s existing standards for the in-state sale of eggs and announced new standards for the in-state sale of pork and veal products. App. to Pet. for Cert. 37a–46a. As relevant here, Proposition 12 forbids the in-state sale of whole pork meat that comes from breeding pigs (or their immediate offspring) that are “confined *366 in a cruel manner.” Cal. Health & Safety Code Ann. §25990(b)(2) (West Cum. Supp. 2023). Subject to certain exceptions, the law deems confinement “cruel” if it prevents a pig from “lying down, standing up, fully extending [its] limbs, or turning around freely.” §25991(e)(1). Since Proposition 12’s adoption, the State has begun developing “proposed regulations” that would permit compliance “certification[s]” to be issued “by non-governmental third parties, many used for myriad programs (e.g., ‘organic’) already.” Brief for Intervenor Respondents 30, n. 8.

[Omitted, at 366–367: the campaign, in which proponents invoked animal welfare and food safety and opponents invoked both and warned of new costs; and the suit, brought by the National Pork Producers Council and the American Farm Bureau Federation (petitioners) on behalf of members who raise and process pigs.]

In support of that legal claim, petitioners pleaded a number of facts. They acknowledged that, in response to consumer demand and the laws of other States, 28% of their industry has already converted to some form of group housing for pregnant pigs. Id., at 186a. But, petitioners cautioned, even some farmers who already raise group-housed pigs will have to modify their practices if they wish to comply with Proposition 12. Id., at 208a–209a. Much of pork production today is vertically integrated, too, with farmers selling pigs to large processing firms that turn them into different “cuts of meat” and distribute the “different parts … all over to completely different end users.” Id., at 334a–335a. Revising this system to segregate and trace Proposition 12-compliant pork, petitioners alleged, will require certain processing firms to make substantial new capital investments. Id., at 205a–206a. Ultimately, petitioners estimated that “compliance with Proposition 12 will increase production costs” by “9.2% … at the farm level.” Id., at 214a. These compliance costs will fall on California and out-of-state producers alike. Ibid. But because California imports almost all the pork it consumes, petitioners emphasized, “the majority” of Proposition 12’s compliance costs will be initially borne by out-of-state firms. Ibid.

[Omitted, at 367–368: the district court dismissed the complaint, and the Ninth Circuit affirmed.]

II

The Constitution vests Congress with the power to “regulate Commerce … among the several States.” Art. I, §8, cl. 3. Everyone agrees that Congress may seek to exercise this power to regulate the interstate trade of pork, much as it has done with various other products. Everyone agrees, too, that congressional enactments may preempt conflicting state laws. See Art. VI, cl. 2. But everyone also agrees that we have nothing like that here. Despite the persistent efforts of certain pork producers, Congress has yet to adopt any statute that might displace Proposition 12 or laws regulating pork production in other States. See, e.g., H. R. 272, 116th Cong., 1st Sess., §2 (2019); H. R. 4879, 115th Cong., 2d Sess., §2(a) (2018); H. R. 3599, 115th Cong., 1st Sess., §2(a) (2017); H. R. 687, 114th Cong., 1st Sess., §2(a) (2015).

[Omitted, at 368–369: the doctrine’s history, from Gibbons v. Ogden (1824) to Guy v. Baltimore (1880), which condemned laws that “build up … domestic commerce” by burdening other States while reiterating that, absent discrimination, a State may bar the sale of articles it judges “prejudicial to” its citizens.]

Today, this antidiscrimination principle lies at the “very core” of our dormant Commerce Clause jurisprudence. Camps Newfound/Owatonna, Inc. v. Town of Harrison, 520 U. S. 564, 581 (1997). In its “modern” cases, this Court has said that the Commerce Clause prohibits the enforcement of state laws “driven by … ‘economic protectionism—that is, regulatory measures designed to benefit in-state economic interests by burdening out-of-state competitors.’ ” Department of Revenue of Ky. v. Davis, 553 U. S. 328, 337–338 (2008) (quoting New Energy Co. of Ind. v. Limbach, 486 U. S. 269, 273–274 (1988)); see also Tennessee Wine and Spirits Retailers Assn. v. Thomas, 588 U. S. ___, ___ (2019) (slip op., at 9) (*370 observing that this Court’s cases operate principally to “safeguard against state protectionism”); Northwest Airlines, Inc. v. County of Kent, 510 U. S. 355, 373, n. 18 (1994) (describing “a violation of the dormant Commerce Clause” as “discrimination against interstate commerce”).

[Omitted, at 370: the Court’s acknowledgment of “vigorous and thoughtful critiques” suggesting that the antidiscrimination principle belongs in the Import-Export Clause, the Privileges and Immunities Clause, or the Constitution’s structure. The Tennessee Wine note quotes the same passage.]

Whatever one thinks about these critiques, we have no need to engage with any of them to resolve this case. Even under our received dormant Commerce Clause case law, petitioners begin in a tough spot. They do not allege that California’s law seeks to advantage in-state firms or disadvantage out-of-state rivals. In fact, petitioners disavow any discrimination-based claim, conceding that Proposition 12 imposes the same burdens on in-state pork producers that it imposes on out-of-state ones. As petitioners put it, “the *371 dormant Commerce Clause … bar on protectionist state statutes that discriminate against interstate commerce … is not in issue here.” Brief for Petitioners 2, n. 2.

III

Having conceded that California’s law does not implicate the antidiscrimination principle at the core of this Court’s dormant Commerce Clause cases, petitioners are left to pursue two more ambitious theories. In the first, petitioners invoke what they call “extraterritoriality doctrine.” Id., at 19. They contend that our dormant Commerce Clause cases suggest an additional and “almost per se” rule forbidding enforcement of state laws that have the “practical effect of controlling commerce outside the State,” even when those laws do not purposely discriminate against out-of-state economic interests. Ibid. Petitioners further insist that Proposition 12 offends this “almost per se” rule because the law will impose substantial new costs on out-of-state pork producers who wish to sell their products in California.

A

This argument falters out of the gate. Put aside what problems may attend the minor (factual) premise of this argument. Focus just on the major (legal) premise. Petitioners say the “almost per se” rule they propose follows ineluctably from three cases—Healy v. Beer Institute, 491 U. S. 324 (1989); Brown-Forman Distillers Corp. v. New York State Liquor Authority, 476 U. S. 573 (1986); and Baldwin v. G. A. F. Seelig, Inc., 294 U. S. 511 (1935). A close look at those cases, however, reveals nothing like the rule petitioners posit. Instead, each typifies the familiar concern with preventing purposeful discrimination against out-of-state economic interests.

[Omitted, at 371–373: the three cases. Baldwin (1935) refused to enforce New York’s minimum price for milk bought from out-of-state farmers; Brown-Forman (1986) and Healy (1989) involved laws requiring liquor and beer sellers to affirm that their in-state prices were no higher than their prices elsewhere. Each law, the Court says, protected in-state businesses from out-of-state competition.]

B

[Omitted, at 373: petitioners’ reliance on those cases’ language about laws whose “practical effect” is to control commerce outside the State.]

In our view, however, petitioners read too much into too little. “[T]he language of an opinion is not always to be parsed as though we were dealing with language of a statute.” Reiter v. Sonotone Corp., 442 U. S. 330, 341 (1979). Instead, we emphasize, our opinions dispose of discrete cases *374 and controversies and they must be read with a careful eye to context. See Cohens v. Virginia, 6 Wheat. 264, 399–400 (1821) (Marshall, C. J.). And when it comes to Baldwin, Brown-Forman, and Healy, the language petitioners highlight appeared in a particular context and did particular work. Throughout, the Court explained that the challenged statutes had a specific impermissible “extraterritorial effect”—they deliberately “prevent[ed out-of-state firms] from undertaking competitive pricing” or “deprive[d] businesses and consumers in other States of ‘whatever competitive advantages they may possess.’ ” Healy, 491 U. S., at 338–339 (quoting Brown-Forman, 476 U. S., at 580).

[Omitted, at 374: citations to Pharmaceutical Research and Mfrs. of America v. Walsh (2003) and to lower courts reading the cases the same way.]

Consider, too, the strange places petitioners’ alternative interpretation could lead. In our interconnected national marketplace, many (maybe most) state laws have the “practical effect of controlling” extraterritorial behavior. State income tax laws lead some individuals and companies to relocate to other jurisdictions. See, e.g., Banner v. United States, 428 F. 3d 303, 310 (CADC 2005) (per curiam). Environmental laws often prove decisive when businesses choose where to manufacture their goods. See American Beverage Assn., 735 F. 3d, at 379 (Sutton, J., concurring). Add to the extraterritorial-effects list all manner of “libel laws, securities requirements, charitable registration requirements, franchise laws, tort laws,” and plenty else besides. J. *375 Goldsmith & A. Sykes, The Internet and the Dormant Commerce Clause, 110 Yale L. J. 785, 804 (2001). Nor, as we have seen, is this a recent development. Since the founding, States have enacted an “immense mass” of “[i]nspection laws, quarantine laws, [and] health laws of every description” that have a “considerable” influence on commerce outside their borders. Gibbons, 9 Wheat., at 203; see also Cooley, 12 How., at 317–321. Petitioners’ “almost per se” rule against laws that have the “practical effect” of “controlling” extraterritorial commerce would cast a shadow over laws long understood to represent valid exercises of the States’ constitutionally reserved powers. It would provide neither courts nor litigants with meaningful guidance in how to resolve disputes over them. Instead, it would invite endless litigation and inconsistent results. Can anyone really suppose Baldwin, Brown-Forman, and Healy meant to do so much?

[Omitted, at 375–377: the Court’s acknowledgment that territory matters in a federal system, and that disputes over one State’s reach are resolved through the Constitution’s structure and the Due Process and Full Faith and Credit Clauses, not through an “almost per se” rule. Footnote 1, distinguishing Edgar v. MITE Corp. (1982), is omitted.]

IV

Failing in their first theory, petitioners retreat to a second they associate with Pike v. Bruce Church, Inc., 397 U. S. 137 (1970). Under Pike, they say, a court must at least assess “ ‘the burden imposed on interstate commerce’ ” by a state law and prevent its enforcement if the law’s burdens are “ ‘clearly excessive in relation to the putative local benefits.’ ” Brief for Petitioners 44. Petitioners then rattle off a litany of reasons why they believe the benefits Proposition 12 secures for Californians do not outweigh the costs it imposes on out-of-state economic interests. We see problems with this theory too.

A

In the first place, petitioners overstate the extent to which Pike and its progeny depart from the antidiscrimination rule that lies at the core of our dormant Commerce Clause jurisprudence. As this Court has previously explained, “no clear line” separates the Pike line of cases from our core antidiscrimination precedents. General Motors Corp. v. Tracy, 519 U. S. 278, 298, n. 12 (1997). While many of our dormant Commerce Clause cases have asked whether a law exhibits “ ‘facial discrimination,’ ” “several cases that have purported to apply [Pike,] including Pike itself,” have “turned in whole or in part on the discriminatory character of the challenged state regulations.” Ibid. In other words, if some of our cases focus on whether a state law discriminates on its face, the Pike line serves as an important reminder that a law’s practical effects may also disclose the presence of a discriminatory purpose.

Pike itself illustrates the point. That case concerned an Arizona order requiring cantaloupes grown in state to be *378 processed and packed in state. 397 U. S., at 138–140. The Court held that Arizona’s order violated the dormant Commerce Clause. Id., at 146. Even if that order could be fairly characterized as facially neutral, the Court stressed that it “requir[ed] business operations to be performed in [state] that could more efficiently be performed elsewhere.” Id., at 145. The “practical effect[s]” of the order in operation thus revealed a discriminatory purpose—an effort to insulate in-state processing and packaging businesses from out-of-state competition. Id., at 140, 145.

[Omitted, at 378–379: other Pike cases in which “the presence or absence of discrimination in practice proved decisive,” and the courts and scholars who read Pike the same way.]

Nor does any of this help petitioners in this case. They not only disavow any claim that Proposition 12 discriminates on its face. They nowhere suggest that an examination of Proposition 12’s practical effects in operation would disclose purposeful discrimination against out-of-state businesses. While this Court has left the “courtroom door open” to challenges premised on “even nondiscriminatory burdens,” Davis, 553 U. S., at 353, and while “a small number of our cases have invalidated state laws … that appear to have been genuinely nondiscriminatory,” Tracy, 519 U. S., at 298, n. 12, *380 petitioners’ claim falls well outside Pike’s heartland. That is not an auspicious start.

[Footnote 2, summarized: some Pike-line cases struck down state rules for “trucks, trains, and the like,” where a lack of national uniformity would impede the flow of goods. “Pigs are not trucks or trains.”]

[Part IV–B is not an opinion of the Court. Only THOMAS and BARRETT, JJ., join it — three votes. This is the passage that says the benefits and burdens are incommensurable and that judges cannot weigh them. Justice Kavanaugh says it “would essentially overrule the Pike balancing test”; six Justices decline to join it.]

B

Matters do not improve from there. While Pike has traditionally served as another way to test for purposeful discrimination against out-of-state economic interests, and while some of our cases associated with that line have expressed special concern with certain state regulation of the instrumentalities of interstate transportation, see n. 2, supra, petitioners would have us retool Pike for a much more ambitious project. They urge us to read Pike as authorizing judges to strike down duly enacted state laws regulating the in-state sale of ordinary consumer goods (like pork) based on nothing more than their own assessment of the relevant law’s “costs” and “benefits.”

That we can hardly do. Whatever other judicial authorities the Commerce Clause may imply, that kind of freewheeling power is not among them. Petitioners point to nothing in the Constitution’s text or history that supports such a project. And our cases have expressly cautioned against judges using the dormant Commerce Clause as “a roving license for federal courts to decide what activities are appropriate for state and local government to undertake.” United Haulers, 550 U. S., at 343. While “[t]here was a time when this Court presumed to make such binding judgments for society, under the guise of interpreting the Due Process Clause,” we have long refused pleas like petitioners’ “to reclaim that ground” in the name of the dormant Commerce Clause. Id., at 347.

Not only is the task petitioners propose one the Commerce Clause does not authorize judges to undertake. This Court has also recognized that judges often are “not institutionally suited to draw reliable conclusions of the kind that would be necessary … to satisfy [the] Pike” test as petitioners conceive it. Davis, 553 U. S., at 353.

Our case illustrates the problem. On the “cost” side of the ledger, petitioners allege they will face increased production *381 expenses because of Proposition 12. On the “benefits” side, petitioners acknowledge that Californians voted for Proposition 12 to vindicate a variety of interests, many noneconomic. See App. to Pet. for Cert. 192a (alleging in their complaint that “Proposition 12’s requirements were driven by [a] conception of what qualifies as ‛cruel’ animal housing” and by the State’s concern for the “ ‘health and safety of California consumers’ ”). How is a court supposed to compare or weigh economic costs (to some) against noneconomic benefits (to others)? No neutral legal rule guides the way. The competing goods before us are insusceptible to resolution by reference to any juridical principle. Really, the task is like being asked to decide “whether a particular line is longer than a particular rock is heavy.” Bendix Autolite Corp. v. Midwesco Enterprises, Inc., 486 U. S. 888, 897 (1988) (Scalia, J., concurring in judgment).

[Omitted, at 381–382: petitioners’ concession that a State may ban the in-state sale of goods it deems immoral wherever they are made — goods made with child labor, for example (“[A] state is perfectly entitled to enforce its morals in state”).]

So even accepting everything petitioners say, we remain left with a task no court is equipped to undertake. On the one hand, some out-of-state producers who choose to comply with Proposition 12 may incur new costs. On the other hand, the law serves moral and health interests of some (disputable) magnitude for in-state residents. Some might reasonably find one set of concerns more compelling. Others might fairly disagree. How should we settle that dispute? The competing goods are incommensurable. Your guess is as good as ours.

More accurately, your guess is better than ours. In a functioning democracy, policy choices like these usually belong to the people and their elected representatives. They are entitled to weigh the relevant “political and economic” costs and benefits for themselves, Moorman Mfg. Co. v. Bair, 437 U. S. 267, 279 (1978), and “try novel social and economic experiments” if they wish, New State Ice Co. v. Liebmann, 285 U. S. 262, 311 (1932) (Brandeis, J., dissenting). Judges cannot displace the cost-benefit analyses embodied in democratically adopted legislation guided by nothing more than their own faith in “Mr. Herbert Spencer’s Social Statics,” Lochner v. New York, 198 U. S. 45, 75 (1905) (Holmes, J., dissenting)—or, for that matter, Mr. Wilson Pond’s Pork Production Systems, see W. Pond, J. Maner, & D. Harris, Pork Production Systems: Efficient Use of Swine and Feed Resources (1991).

[Omitted, at 382–383: if pig husbandry needs one national rule, petitioners may ask Congress — and “it is hard not to wonder whether petitioners have ventured here only because winning a majority of a handful of judges may seem easier than marshaling a majority of elected representatives across the street.”]

[Part IV–C is not an opinion of the Court either. THOMAS, SOTOMAYOR and KAGAN, JJ., join it — four votes (BARRETT, J., does not). This is the narrow ground: under Exxon, the complaint fails to allege a substantial burden on interstate commerce. Justice Kavanaugh calls it “controlling precedent for purposes of the Court’s judgment”; footnote 4 below disputes that framing of the whole opinion.]

C

Even as petitioners conceive Pike, they face a problem. As they read it, Pike requires a plaintiff to plead facts plausibly showing that a challenged law imposes “substantial burdens” on interstate commerce before a court may assess the law’s competing benefits or weigh the two sides against each other. Brief for Petitioners 44. And, tellingly, the complaint before us fails to clear even that bar.

To appreciate petitioners’ problem, compare our case to Exxon. That case involved a Maryland law prohibiting petroleum producers from operating retail gas stations in the State. 437 U. S., at 119–121, and n. 1. Because Maryland had no in-state petroleum producers, Exxon argued, the law’s “divestiture requirements” fell “solely on interstate companies” and threatened to force some to “withdraw entirely from the Maryland market” or incur new costs to serve that market. Id., at 125–127. All this, the company said, amounted to a violation of the dormant Commerce Clause.

[Omitted, at 383–384: Exxon held those allegations insufficient. The law’s practical effect was only to shift business from one set of out-of-state firms to another, and the dormant Commerce Clause does not protect “particular structure[s] or methods of operation.”]

If Maryland’s law did not impose a sufficient burden on interstate commerce to warrant further scrutiny, the same must be said for Proposition 12. In Exxon, vertically integrated businesses faced a choice: They could divest their production capacities or withdraw from the local retail market. Here, farmers and vertically integrated processors have at least as much choice: They may provide all their pigs the space the law requires; they may segregate their operations to ensure pork products entering California meet its standards; or they may withdraw from that State’s market. In Exxon, the law posed a choice only for out-of-state firms. Here, the law presents a choice primarily—but not exclusively—for out-of-state businesses; California does have some pork producers affected by Proposition 12. See App. to Pet. for Cert. 205a. In Exxon, as far as anyone could tell, the law threatened only to shift market share from one set *385 of out-of-state firms to another. Here, the pleadings allow for the same possibility—that California market share previously enjoyed by one group of profit-seeking, out-of-state businesses (farmers who stringently confine pigs and processors who decline to segregate their products) will be replaced by another (those who raise and trace Proposition 12-compliant pork). In both cases, some may question the “wisdom” of a law that threatens to disrupt the existing practices of some industry participants and may lead to higher consumer prices. 437 U. S., at 128. But the dormant Commerce Clause does not protect a “particular structure or metho[d] of operation.” Id., at 127. That goes for pigs no less than gas stations.

[Omitted, at 385–387: applying Twombly, the plurality notes that many producers have already converted to group housing, that complying producers can pass some costs on to consumers, and that other firms may “fill the void.” Footnote 3 is omitted. The plurality concludes: “A substantial harm to interstate commerce remains nothing more than a speculative possibility.”]

[Part IV–D: three votes again — THOMAS and BARRETT, JJ. Read it as the answer to the dissents rather than as law.]

D

THE CHIEF JUSTICE’s concurrence in part and dissent in part (call it “the lead dissent”) offers a contrasting view. Correctly, it begins by rejecting petitioners’ “almost per se” rule against laws with extraterritorial effects. Post, at 1. And correctly, it disapproves reading Pike to endorse a “freewheeling judicial weighing of benefits and burdens.” Post, at 2. But for all it gets right, in other respects it goes astray. In places, the lead dissent seems to advance a reading of Pike that would permit judges to enjoin the enforcement of any state law restricting the sale of an ordinary consumer good if the law threatens an “ ‘excessive’ ” “har[m] to the interstate market” for that good. Post, at 4–9. It is an approach that would go much further than our precedents permit. So much further, in fact, that it isn’t clear what separates the lead dissent’s approach from others it purports to reject.

Consider an example. Today, many States prohibit the sale of horsemeat for human consumption. See Cavel Int’l, Inc. v. Madigan, 500 F. 3d 551, 552–555 (CA7 2007). But these prohibitions “har[m] the interstate market” for horsemeat by denying outlets for its sale. Not only that, they distort the market for animal products more generally by pressuring horsemeat manufacturers to transition to different products, ones they can lawfully sell nationwide. Under the lead dissent’s test, all it would take is one complaint from an unhappy out-of-state producer and—presto—the Constitution would protect the sale of horsemeat. Just find a judge anywhere in the country who considers the burden to producers “excessive.” Post, at 9. The same would go for all manner of consumer products currently banned by some States but not by others—goods ranging from *388 fireworks, see, e.g., Mass. Gen. Laws Ann., ch. 148, §39 (2020), to single-use plastic grocery bags, see, e.g., Me. Rev. Stat. Ann., Tit. 38, §§1611(2)(A), (4) (2022). Rather than respecting federalism, a rule like that would require any consumer good available for sale in one State to be made available in every State. In the process, it would essentially replicate under Pike’s banner petitioners’ “almost per se” rule against state laws with extraterritorial effects.

[Omitted, at 388: if California’s law is suspect because its market is large, smaller States would have more power to regulate in-state sales than larger ones — “[s]o much for the Constitution’s ‘fundamental principle of equal sovereignty among the States.’ ”]

[Omitted, at 388–389: the dissents would count “derivative harms” — to the “national pig population,” for example — which not even petitioners asked any court to treat as freestanding harms. Footnote 4, which follows, is attached to the end of this passage.]

[Footnote 4: Both dissents seek to characterize today’s decision as “fractured” in an effort to advance their own overbroad readings of Pike and layer their own gloss on opinions they do not join. Post, at 1, 8 (opinion of KAVANAUGH, J.); see also post at 2–4, 8–10 (opinion of ROBERTS, C. J.). But the dissents are just that—dissents. Their glosses do not speak for the Court. Today, the Court unanimously disavows petitioners’ “almost per se” rule against laws with extraterritorial effects. See Parts II and III, supra. When it comes to Pike, a majority agrees that heartland Pike cases seek to smoke out purposeful discrimination in state laws (as illuminated by those laws’ practical effects) or seek to protect the instrumentalities of interstate transportation. See Part IV–A, supra. A majority also rejects any effort to expand Pike’s domain to cover cases like this one, some of us for reasons found in Part IV–B, others of us for reasons discussed in Part IV–C. Today’s decision depends equally on the analysis found in both of these sections; without either, there is no explaining the Court’s judgment affirming the decision below. A majority also subscribes to what follows in Part V.]

[Part V is an opinion of the Court — five votes. That matters: the “extreme caution” language below carries majority force, and it is the sentence lower courts now quote.]

V

Before the Constitution’s passage, Rhode Island imposed special taxes on imported “New-England Rum”; Connecticut levied duties on goods “brought into th[e] State, by Land or Water, from any of the United States of America”; and Virginia taxed “vessels coming within th[e S]tate from any of the United States.” An Act Laying Certain Duties of Excise Upon Certain Articles, Feb. 24, 1783 R. I. Acts and Resolves 45; An Act for Levying and Collecting a Duty on Certain Articles of Goods, Wares and Merchandize Imported into this State, by Land or Water, 1784 Conn. Acts and Laws 271; *390 An Act to Amend the Act for Ascertaining Certain Taxes and Duties, and for Establishing a Permanent Revenue (May 6, 1782), in 11 Statues at Large, Laws of Virginia 70 (W. Hening ed. 1823).

Whether moved by this experience or merely worried that more States might join the bandwagon, the Framers equipped Congress with considerable power to regulate interstate commerce and preempt contrary state laws. See U. S. Const., Art. I, §8, cl. 3; Art. IV, §2; see also Regan, 84 Mich. L. Rev., at 1114, n. 55; A. Abel, The Commerce Clause in the Constitutional Convention and in Contemporary Comment, 25 Minn. L. Rev. 432, 448–449 (1941). In the years since, this Court has inferred an additional judicially enforceable rule against certain, especially discriminatory, state laws adopted even against the backdrop of congressional silence. But “ ‘extreme caution’ ” is warranted before a court deploys this implied authority. Tracy, 519 U. S., at 310 (quoting Northwest Airlines, Inc. v. Minnesota, 322 U. S. 292, 302 (1944) (Black, J., concurring)). Preventing state officials from enforcing a democratically adopted state law in the name of the dormant Commerce Clause is a matter of “extreme delicacy,” something courts should do only “where the infraction is clear.” Conway v. Taylor’s Executor, 1 Black 603, 634 (1862).

Petitioners would have us cast aside caution for boldness. They have failed—repeatedly—to persuade Congress to use its express Commerce Clause authority to adopt a uniform rule for pork production. And they disavow any reliance on this Court’s core dormant Commerce Clause teachings focused on discriminatory state legislation. Instead, petitioners invite us to endorse two new theories of implied judicial power. They would have us recognize an “almost per se” rule against the enforcement of state laws that have “extraterritorial effects”—even though this Court has recognized since Gibbons that virtually all state laws create ripple effects beyond their borders. Alternatively, they would have *391 us prevent a State from regulating the sale of an ordinary consumer good within its own borders on nondiscriminatory terms—even though the Pike line of cases they invoke has never before yielded such a result. Like the courts that faced this case before us, we decline both of petitioners’ incautious invitations.

The judgment of the Ninth Circuit is

Affirmed.

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JUSTICE SOTOMAYOR, with whom JUSTICE KAGAN joins, concurring in part.

I join all but Parts IV–B and IV–D of JUSTICE GORSUCH’s opinion. Given the fractured nature of Part IV, I write separately to clarify my understanding of why petitioners’ Pike claim fails. In short, I vote to affirm the judgment because petitioners fail to allege a substantial burden on interstate commerce as required by Pike, not because of any fundamental reworking of that doctrine.

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[Omitted, at 391: the Pike formula, quoted in full.]

As the Court’s opinion here explains, Pike’s balancing and tailoring principles are most frequently deployed to detect the presence or absence of latent economic protectionism. See ante, at 15–18. That is no surprise. Warding off state discrimination against interstate commerce is at the *392 heart of our dormant Commerce Clause jurisprudence. See ante, at 7, 9–11, 15–16.

[Omitted, at 392: the Court has “generally le[ft] the courtroom door open” to claims of nondiscriminatory burdens, so a Pike claim alleging neither discrimination nor a burden on the instrumentalities of commerce is not doomed.]

Nor does a majority of the Court endorse the view that judges are not up to the task that Pike prescribes. JUSTICE GORSUCH, for a plurality, concludes that petitioners’ Pike claim fails because courts are incapable of balancing economic burdens against noneconomic benefits. See ante, at 18–21. I do not join that portion of JUSTICE GORSUCH’s opinion. I acknowledge that the inquiry is difficult and delicate, and federal courts are well advised to approach the matter with caution. See ante, at 28. Yet, I agree with THE CHIEF JUSTICE that courts generally are able to weigh disparate burdens and benefits against each other, and that they are called on to do so in other areas of the law with *393 some frequency. See post, at 3–4. The means-ends tailoring analysis that Pike incorporates is likewise familiar to courts and does not raise the asserted incommensurability problems that trouble JUSTICE GORSUCH.

In my view, and as JUSTICE GORSUCH concludes for a separate plurality of the Court, petitioners’ Pike claim fails for a much narrower reason. Reading petitioners’ allegations in light of the Court’s decision in Exxon Corp. v. Governor of Maryland, 437 U. S. 117 (1978), the complaint fails to allege a substantial burden on interstate commerce. See ante, at 21–25. Alleging a substantial burden on interstate commerce is a threshold requirement that plaintiffs must satisfy before courts need even engage in Pike’s balancing and tailoring analyses. Because petitioners have not done so, they fail to state a Pike claim.

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JUSTICE BARRETT, concurring in part.

A state law that burdens interstate commerce in clear excess of its putative local benefits flunks Pike balancing. Pike v. Bruce Church, Inc., 397 U. S. 137, 142 (1970). In most cases, Pike’s “general rule” reflects a commonsense principle: Where there’s smoke, there’s fire. Ibid. Under our dormant Commerce Clause jurisprudence, one State may not discriminate against another’s producers or consumers. A law whose burdens fall incommensurately and inexplicably on out-of-state interests may be doing just that.

But to weigh benefits and burdens, it is axiomatic that both must be judicially cognizable and comparable. See Department of Revenue of Ky. v. Davis, 553 U. S. 328, 354–355 (2008). I agree with JUSTICE GORSUCH that the benefits and burdens of Proposition 12 are incommensurable. California’s interest in eliminating allegedly inhumane products from its markets cannot be weighed on a scale opposite dollars and cents—at least not without second-guessing the moral judgments of California voters or making the kind of policy decisions reserved for politicians. Ante, at 18–21; *394 Davis, 553 U. S., at 360 (Scalia, J., concurring in part). None of our Pike precedents requires us to attempt such a feat.

That said, I disagree with my colleagues who would hold that petitioners have failed to allege a substantial burden on interstate commerce. Ante, at 21–25; ante, at 3 (SOTOMAYOR, J., concurring in part). The complaint plausibly alleges that Proposition 12’s costs are pervasive, burdensome, and will be felt primarily (but not exclusively) outside California. See post, at 6–7 (ROBERTS, C. J., concurring in part and dissenting in part). For this reason, I do not join Part IV–C of JUSTICE GORSUCH’s opinion. If the burdens and benefits were capable of judicial balancing, I would permit petitioners to proceed with their Pike claim.

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CHIEF JUSTICE ROBERTS, with whom JUSTICE ALITO, JUSTICE KAVANAUGH, and JUSTICE JACKSON join, concurring in part and dissenting in part.

I agree with the Court’s view in its thoughtful opinion that many of the leading cases invoking the dormant Commerce Clause are properly read as invalidating statutes that promoted economic protectionism. See ante, at 8–11. I also agree with the Court’s conclusion that our precedent does not support a per se rule against state laws with “extraterritorial” effects. See ante, at 11–14. But I cannot agree with the approach adopted by some of my colleagues to analyzing petitioners’ claim based on Pike v. Bruce Church, Inc., 397 U. S. 137, 142 (1970). See ante, at 15–27 (opinion of GORSUCH, J.); ante, at 3 (SOTOMAYOR, J. concurring in part); ante, at 1–2 (BARRETT, J., concurring in part).

[Omitted, at 394–395: the Chief Justice would vacate and remand.]

I

[Omitted, at 395–397: Part I. Pike, the Chief Justice argues, protects “free private trade in the national marketplace,” has never been confined to discrimination or transportation, and asks no more than courts already do when they weigh seemingly incommensurable values elsewhere in constitutional law.]

II

[Omitted, at 397: the Ninth Circuit held that compliance costs alone are not a substantial burden; the complaint, he says, alleges “broader, market-wide consequences of compliance.”]

A

Our precedents have long distinguished the costs of complying with a given state regulation from other economic harms to the interstate market. Bibb v. Navajo Freight Lines, Inc., 359 U. S. 520 (1959), illustrates the point. In that case, we considered an Illinois law requiring that trucks and trailers use a particular kind of mudguard. The “cost *398 of installing” the mudguards was “$30 or more per vehicle,” amounting to “$4,500 to $45,840” for the trucking companies at issue. Id., at 525. But beyond documenting those direct costs of complying with the Illinois law, we also noted other derivative harms flowing from the regulation. The mudguard rule threatened “significant delay in an operation where prompt movement may be of the essence.” Id., at 527. Also, changing mudguard types when crossing into Illinois from a State with a different standard would require “two to four hours of labor” and could prove “exceedingly dangerous.” Ibid. We concluded that “[c]ost taken into consideration” together with those “other factors” could constitute a burden on interstate commerce. Id., at 526 (emphasis added). Subsequent cases followed Bibb’s logic by analyzing economic impact to the interstate market separately from immediate costs of compliance. See Kassel v. Consolidated Freightways Corp. of Del., 450 U. S. 662, 674 (1981) (plurality opinion) (separating “increas[ed] … costs” from the fact that the challenged “law may aggravate … the problem of highway accidents” in describing the burden on interstate commerce); Raymond Motor Transp., Inc. v. Rice, 434 U. S. 429, 445, and n. 21 (1978) (analyzing an increase in “cost” independently of other consequential effects, such as “slow[ing] the movement of goods”).

[Omitted, at 398–399: Pike itself counted both a $200,000 packing facility and the “nature” of a rule requiring work to be done in the home State, and such derivative harms are “in no sense ‘noneconomic.’ ”]

B

[Omitted, at 399: the alleged capital costs, $290 to $348 million, and a 9.2% rise in farm-level production costs.]

Separate and apart from those costs, petitioners assert harms to the interstate market itself. The complaint alleges that the interstate pork market is so interconnected that *400 producers will be “forced to comply” with Proposition 12, “even though some or even most of the cuts from a hog are sold in other States.” Id., at 213a; id., at 239a. Proposition 12 may not expressly regulate farmers operating out of State. But due to the nature of the national pork market, California has enacted rules that carry implications for producers as far flung as Indiana and North Carolina, whether or not they sell in California. The panel below acknowledged petitioners’ allegation that, “[a]s a practical matter, given the interconnected nature of the nationwide pork industry, all or most hog farmers will be forced to comply with California requirements.” 6 F. 4th, at 1028.

[Omitted, at 400–401: Edgar’s treatment of an Illinois law’s “nationwide reach” under Pike, and alleged harms to pig health and to “generations of animal husbandry, training, and knowledge.”]

Writing for a plurality of the Court, JUSTICE GORSUCH relies on this Court’s decision in Exxon Corp. v. Governor of Maryland, 437 U. S. 117 (1978), to conclude that petitioners’ complaint does not plead a substantial burden against interstate commerce. See ante, at 21–25; see also ante, at 3 (opinion of SOTOMAYOR, J.) (also relying on Exxon). In Exxon, petroleum producers sued after Maryland prohibited their sale of retail gas within the State. 437 U. S., at 119. The Court concluded that “interstate commerce is not subjected to an impermissible burden simply because an otherwise valid regulation causes some business[es] to shift from one interstate supplier to another.” Id., at 127. Fair enough. But the complaint before us pleads facts going far beyond the allegations in Exxon. The producers in Exxon operated within Maryland and wished to continue doing so. By contrast, petitioners here allege that Proposition 12 will force compliance on farmers who do not wish to sell into the California market, exacerbate health issues in the national pig population, and undercut established operational practices. In my view, these allegations amount to economic harms against “the interstate market”—not just “particular interstate firms,” ibid.—such that they constitute a substantial burden under Pike. At the very least, the harms alleged by petitioners are categorically different from the cost of installing $30 mudguards, Bibb, 359 U. S., at 525, or of *402 constructing a $200,000 cantaloupe packing facility, Pike, 397 U. S., at 140.

JUSTICE GORSUCH asks what separates my approach from the per se extraterritoriality rule I reject. Ante, at 25. It is the difference between mere cross-border effects and broad impact requiring, in this case, compliance even by producers who do not wish to sell in the regulated market. And even then, we only invalidate a regulation if that burden proves “clearly excessive in relation to the putative local benefits.” Pike, 397 U. S., at 142. Adhering to that established approach in this case would not convert the inquiry into a per se rule against extraterritorial regulation.

[Omitted, at 402: a majority — the four Justices of this opinion and Justice Barrett — agrees that, were balancing possible, petitioners have alleged a substantial burden.]

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*403 In my view, petitioners plausibly allege a substantial burden against interstate commerce. I would therefore remand the case for the Ninth Circuit to decide whether it is plausible that the “burden … is clearly excessive in relation to the putative local benefits.” Pike, 397 U. S., at 142.

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JUSTICE KAVANAUGH, concurring in part and dissenting in part.

In today’s fractured decision, six Justices of this Court affirmatively retain the longstanding Pike balancing test for analyzing dormant Commerce Clause challenges to state economic regulations. Ante, at 1 (SOTOMAYOR, J., joined by KAGAN, J., concurring in part); ante, at 2–3 (ROBERTS, C. J., joined by ALITO, KAVANAUGH, and JACKSON, JJ., concurring in part and dissenting in part); see Pike v. Bruce Church, Inc., 397 U. S. 137 (1970). Although Parts IV–B and IV–D of JUSTICE GORSUCH’s opinion would essentially overrule the Pike balancing test, those subsections are not controlling precedent, as I understand it.

But Part IV–C of JUSTICE GORSUCH’s opinion is controlling precedent for purposes of the Court’s judgment as to the plaintiffs’ Pike claim. There, a four-Justice plurality of the Court applies Pike and rejects the plaintiffs’ dormant Commerce Clause challenge under Pike. The plurality reasons that the plaintiffs’ complaint did not sufficiently allege that the California law at issue here imposed a substantial burden on interstate commerce under Pike. I respectfully disagree with that conclusion for the reasons well stated in THE CHIEF JUSTICE’s separate opinion.

[Omitted, at 403–408: Part I and footnotes 2 and 3. Because of “California’s 13-percent share of the consumer pork market,” Justice Kavanaugh writes, Proposition 12 “in effect regulates pig farming and pork production throughout the United States,” and California has sought “to unilaterally impose its moral and policy preferences” on the Nation. Footnote 3 says that on whether to retain Pike, the Chief Justice’s opinion states the majority view.]

[Omitted, at 408–410: Part II, which flags, without deciding them, questions under the Import-Export Clause, the Privileges and Immunities Clause and the Full Faith and Credit Clause.]

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As I understand it, the controlling plurality of the Court (reflected in Part IV–C of JUSTICE GORSUCH’s opinion) today rejects the plaintiffs’ dormant Commerce Clause challenge on the ground that the plaintiffs’ complaint does not sufficiently allege that the California law at issue here imposes a substantial burden on interstate commerce under Pike. See ante, at 21–25 (plurality opinion); ante, at 1–3 (opinion of SOTOMAYOR, J.). It appears, therefore, that properly pled dormant Commerce Clause challenges under Pike to laws like California’s Proposition 12 (or even to Proposition 12 itself) could succeed in the future—or at least survive past the motion-to-dismiss stage. Regardless, it will be important in future cases to consider that state laws like Proposition 12 also may raise substantial constitutional questions under the Import-Export Clause, the Privileges and Immunities Clause, and the Full Faith and Credit Clause.

Notes & Questions

1. Start with the arithmetic, because the arithmetic is the doctrine. Write out, for each of the five opinions, which Parts of Justice Gorsuch’s opinion that author joins and which he or she does not. Then answer: on the question whether Pike balancing survives as a general matter, what is the holding of this case? Justice Kavanaugh says six Justices retain it. Justice Gorsuch’s footnote 4 says the dissents’ “glosses do not speak for the Court.” Both statements can be true. Say precisely what each one means.

2. Marks and the incommensurable grounds. Marks v. United States, 430 U. S. 188, 193 (1977), says that when no rationale commands five votes, the holding is “the position taken by those Members who concurred in the judgments on the narrowest grounds.” Apply Marks here. The trouble is that IV–B (three votes: courts cannot weigh) and IV–C (four votes: no substantial burden alleged) are not nested — neither is a subset of the other. Barrett joins one; Sotomayor and Kagan join the other. Footnote 4 says the judgment depends “equally” on both. Is there a Marks holding at all? If your answer is that IV–C is narrower, explain why Barrett — who thinks the burden was substantial — is not a counterexample.

3. What Part III actually kills. Three cases carried petitioners’ extraterritoriality theory: Baldwin v. G. A. F. Seelig, Brown-Forman, and Healy. Part III reads all three as price-control cases that “smoke out” purposeful discrimination, not as announcing a freestanding ban on extraterritorial effects. This is unanimous — the Chief Justice says so expressly. State the rule that survives: when is a state law’s out-of-state effect a constitutional problem, and when is it just the ordinary consequence of a large market? Test it on a California emissions standard, a New York disclosure rule, and a Texas data-privacy statute.

4. “Extreme caution,” and who said it. The Part V passage quotes General Motors Corp. v. Tracy, which quotes Justice Black’s concurrence in Northwest Airlines, and then Conway v. Taylor’s Executor (1862) for “extreme delicacy” and “where the infraction is clear.” Trace the chain and ask what it is doing. Two of the three sources are not majority holdings about the dormant Commerce Clause at all. Does that weaken the passage, or is a five-Justice opinion of the Court free to adopt whatever it quotes? Then notice the practical point: this is the sentence a State will quote in every future Pike case, and it has five votes.

5. Compliance costs versus derivative harms. The Chief Justice insists that Pike’s own facts involved a $200,000 packing facility, and that this Court has repeatedly counted compliance costs and market-restructuring effects as cognizable burdens. Justice Gorsuch’s IV–C answers with Exxon: a law that shifts business “from one set of out-of-state firms to another” does not burden interstate commerce; it burdens particular firms. These are two different theories of what the Commerce Clause protects. Name them. Then decide which one Pike itself was applying — and notice that you answered a version of this question in the Pike notes.

6. Incommensurability as a judicial-competence claim. “The competing goods are incommensurable. Your guess is as good as ours. More accurately, your guess is better than ours.” That is an argument about institutional capacity, not about the Commerce Clause. Justice Barrett accepts it; Justice Sotomayor does not, answering that Pike’s “balancing and tailoring principles” are familiar work for courts. Whose account of what courts do is right? Consider how often constitutional law asks judges to weigh dissimilar goods — Mathews v. Eldridge, intermediate scrutiny, the Anderson-Burdick framework — and ask what makes this different, if anything.

7. The morals problem. California’s asserted interest is partly moral: its voters do not want to eat pork produced in a way they find cruel. Justice Gorsuch puts it as an impasse — “the law serves moral and health interests of some (disputable) magnitude for in-state residents,” “[s]ome might reasonably find one set of concerns more compelling,” “[o]thers might fairly disagree,” and so “[t]he competing goods are incommensurable.” Justice Barrett names the cost of doing it anyway: weighing moral interests against dollars means “second-guessing the moral judgments of California voters or making the kind of policy decisions reserved for politicians.” But nearly every regulation encodes a moral judgment. If a moral interest is incommensurable with an economic burden, is any morally motivated state law effectively immune from Pike? Draft the limiting principle. Then ask whether a State could insulate a protectionist law by announcing a moral rationale — and what in Parts II and III would stop it.

8. The thirteen percent. California consumes about thirteen percent of the nation’s pork and produces almost none. The whole case turns on the leverage that share confers. Ask what the doctrine would look like if the number were forty percent, or if the State were Wyoming. Then ask the structural question the Chief Justice presses: if one State can set the terms on which a national industry operates, what is left of the “one national market” premise the Court invoked in Philadelphia and Tennessee Wine? Justice Gorsuch’s answer is in Part V: that problem belongs to Congress. Evaluate it, remembering that the opinion itself collects four failed bills — in 2015, 2017, 2018 and 2019 — and introduces them with “e.g.”.

9. Where this leaves the module. You have now read Philadelphia (facial discrimination, virtually per se invalid), Pike (the formula), Tennessee Wine (the doctrine’s foundations defended, in the note), and this case. Write the doctrine as it stands in one page, marking which propositions have five votes and which do not. That page is the thing you will need on an exam, and building it is the point of the module’s reading.