National Pork Producers Council v. Ross

NATIONAL PORK PRODUCERS COUNCIL et al. v.

MENT OF FOOD AND AGRICULTURE, et al.

certiorari to the united states court of appeals for the ninth circuit

No. 21– 468. Argued October 11, 2022 —Decided May 11, 2023 This case involves a challenge to a California law known as Proposition 12, which as relevant here forbids the in-state sale of whole pork meat that comes from breeding pigs (or their immediate offspring) that are “ c o n f i n e d i n a c r u e l m a n n e r. ” C a l . He a l t h & S a f e t y C o d e A n n . § 25990( b)(2). Confnement is “cr uel” if it prevents a pig from “ lying down, standing up, fully extending [its] limbs, or turning around freely. ” § 25991(e)(1). Prior to the vote on Proposition 12, proponents suggested the law would beneft animal welfare and consumer health, and oppo- nents claimed that existing farming practices did better than Proposi- tion 12 protecting animal welfare (for example, by preventing pig-on-pig aggression) and ensuring consumer health ( by avoiding contamination).

Shortly af ter Proposition 12's adoption, two organizations—the National Pork Producers Council and the American Farm Bureau Federation (petitioners)—fled this lawsuit on behalf of their members who raise and process pigs alleg ing that Proposition 12 violates the U. S. Constitu- tion by impermissibly burdening interstate commerce. Petitioners es- timated that the cost of compliance with Proposition 12 will increase production costs and will fall on both California and out-of-state produc- ers. But because California imports almost all the pork it consumes, most of Proposition 12's compliance costs will be borne by out-of-state frms. The district court held that petitioners' complaint failed to state a claim as a matter of law and dismissed the case. The Ninth Circuit affrmed.

Held: The judg ment of the Ninth Circuit is affrmed.

6 F. 4th 1021, affrmed.

Justice Gorsuch delivered the opinion of the Court, except as to Parts IV–B, IV– C, and IV–D, re jecting petitioners' theories that would place Proposition 12 in violation of the dormant Commerce Clause even though petitioners do not allege the law purposefully discriminates against out-of-state economic interests. Pp. 368 – 380, 389 – 391. (a) The Constitution vests Congress with the power to “regulate Commerce . . . among the several States. ” Art. I, § 8, cl. 3. Although

Cite as: 598 U. S. 356 (2023) 357 Syllabus

Congress may seek to exercise this power to regulate the interstate trade of pork, and many pork producers have urged Congress to do so, Congress has yet to adopt any statute that might displace Proposition 12 or laws regulating pork production in other States. Petitioners' liti- gation theory thus rests on the dor man t Commerce Clause theory, pur- suant to which the Commerce Clause not only vests Congress with the power to regulate interstate trade, but also “contain[s] a further, nega- tive command, ” one effectively forbidding the enforcement of “certain state [economic regulations] even when Congress has failed to leg islate on the subject. ” Oklaho ma Tax Co mm'n v. Je fferso n Lines, Inc., 514

U. S. 175, 179. This Court has held that state laws offend this dormant

aspect of the Commerce Clause when they seek to “ build up . . . domestic commerce” through “ burdens upon the industry and business of other States. ” G uy v. Bal t imore, 100 U. S. 434, 443. At the same time, though, the Court has reiterated that, absent purposeful discrimination, “a State may exclude from its territory, or prohibit the sale therein of any articles which, in its judg ment, fairly exercised, are pre judicial to” the interests of its citizens. Ib id.

The antidiscrimination principle lies at the “very core” of the Court's d o r m a n t C o m m e r c e C l au se ju r i sp r u de nc e. Ca mp s New fo un d / O w a- to nna, Inc. v. Town o f Har r iso n, 520 U. S. 564, 581. This Court has said that the Commerce Clause prohibits the enforcement of state laws “driven by . . . `economic protectionism—that is, regulatory measures desig ned to beneft in-state economic interests by burdening out-of-state competitors. ' ” Depar tmen t o f Rev enue o f Ky. v. Dav is, 553 U. S. 328, 337– 338 (quoting New Energy Co. o f Ind. v. Limbach, 486 U. S. 269, 273 – 274). Petitioners here disavow any discrimination-based claim, con- ceding that Proposition 12 imposes the same burdens on in-state pork producers that it imposes on out-of-state pork producers. Pp. 368 – 371. ( b) Given petitioners' concession that Proposition 12 does not impli- cate the antidiscrimination principle, petitioners frst invoke what they call the “extraterritoriality doctrine. ” They contend that the Court's dormant Commerce Clause cases suggest an additional and “almost per se” r ule forbidding enforcement of state laws that have the “practi- cal effect of controlling commerce outside the State, ” even when those laws do not purposely discriminate against out-of-state interests. Peti- tioners further insist that Proposition 12 offends this “almost per se” r ule because the law will impose substantial new costs on out-of-state pork producers who wish to sell their products in California. Petition-

Healy v. Beer Inst i tu te, 491 U. S. 324; Brown-For man D ist i llers Cor p.

v. New York Sta te Liquor Au thor i ty, 476 U. S. 573; and Baldw in v.

G. A. F. Seel i g, Inc., 294 U. S. 511. But a close look at those cases

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reveals that each typifes the familiar concern with preventing purpose- ful discrimination against out-of-state economic interests. In Baldw in, a New York law that barred out-of-state dairy farmers from selling their milk in the State for less than the minimum price New York law guaran- teed in-state producers “plainly discriminate[d] ” against out-of-staters by “erecting an economic barrier protecting a major local industry against competition from without the State. ” Dean Mi lk Co. v. Madi- so n, 340 U. S. 349, 354 (discussing Baldw in). In Brown-For man, a New York law that required liquor distillers to affrm that their in-state prices were no higher than their out-of-state prices impermissibly sought to force out-of-state distillers to “surrender ” whatever cost ad- vantages they enjoyed against their in-state rivals, which amounted to economic protectionism. 476 U. S., at 580.

The Court reached a similar conclusion in Healy, which involved a Connecticut law that required out-of-state beer merchants to affrm that their in-state prices were no higher than those they charged in neigh- boring States. 491 U. S., at 328 – 330. As the Court later explained, “ [t]he essential vice in laws” like Connecticut's is that they “ hoard” com- merce “for the beneft of ” in-state merchants and discourage consumers from crossing state lines to make their purchases from nearby out-of- state vendors. C & A Carbo ne, Inc. v. Clarkstown, 511 U. S. 383, 391– 392.

Petitioners insist that Baldw in, Brown-For man, and Healy taken to- gether suggest an “almost per se” r ule against state laws with “extrater- ritorial effects. ” While petitioners point to language in these cases pertaining to the “practical effect” of the challenged laws on out-of-state commerce and prices, “ the language of an opinion is not always to be parsed as though we were dealing with language of a statute. ” Re i ter

v. So no to ne Cor p., 442 U. S. 330, 341. The language high lighted by peti-

tioners in Baldw in, Brown-For man, and Healy appeared in a particular context and did particular work. A close look at those cases reveals nothing like the “almost per se” r ule against laws that have the “practi- cal effect” of “controlling ” extraterritorial commerce that petitioners posit, and indeed petitioners' reading would cast a shadow over laws long understood to represent valid exercises of the States' constitution- ally reserved powers. Baldw in, Brown-For man, and Healy did not mean to do so much. In re jecting petitioners' “almost per se” theory the Court does not mean to trivialize the role territory and sovereig n boundaries play in the federal system; the Constitution takes great care to provide r ules for fxing and chang ing state borders. Art. IV, § 3, cl. 1. Courts must sometimes referee disputes about where one State's authority ends and another 's beg ins—both inside and outside the com- mercial context. Indeed, the antidiscrimination principle found in the Court's dormant Commerce Clause cases may well represent one more

Cite as: 598 U. S. 356 (2023) 359 Syllabus

effort to mediate competing claims of sovereig n authority under our hori- zontal separation of powers. But none of this means, as petitioners sup- pose, that any question about the ability of a State to project its power extraterritorially must yield to an “almost per se” r ule under the dor- mant Commerce Clause. This Court has never before claimed so much “ground for judicial supremacy under the banner of the dormant Com- merce Clause. ” Un i ted Haulers Assn., Inc. v. O ne ida-Herkimer So l id Waste Managemen t Au thor i ty, 550 U. S. 330, 346 – 347. Pp. 371– 376. (c) Petitioners next point to P i ke v. Br uce Church, Inc., 397 U. S. 137, which they assert requires a court to at least assess “ ` the burden im- posed on interstate commerce' ” by a state law and prevent its enforce- ment if the law's burdens are “ `clearly excessive in relation to the puta- tive local benefts. ' ” Brief for Petitioners 44. Petitioners provide a litany of reasons why they believe the benefts Proposition 12 secures for Californians do not outweigh the costs it imposes on out-of-state economic interests.

Petitioners overstate the extent to which P i ke and its progeny depart from the antidiscrimination r ule that lies at the core of the Court's dor- mant Commerce Clause jurispr udence. As this Court has previously explained, “no clear line” separates the P i ke line of cases from core antidiscrimination precedents. General M o tors Cor p. v. Tracy, 519

U. S. 278, 298, n. 12. If some cases focus on whether a state law dis-

criminates on its face, the P i ke line serves as an important reminder that a law's practical effects may also disclose the presence of a discrimi- natory purpose. P i ke itself concerned an Arizona order requiring can- taloupes grown in state to be processed and packed in state. 397 U. S., at 138 –140. The Court held that Arizona's order violated the dormant Commerce Clause, stressing that even if that order could be fairly char- acterized as facially neutral, it “requir[ed] business operations to be per- formed in [state] that could more effciently be performed elsewhere. ” Id., at 145. The “practical effect[s] ” of the order in operation thus re- vealed a discriminatory purpose—an effort to insulate in-state process- ing and packag ing businesses from out-of-state competition. Id., at 140.

While this Court has lef t the “courtroom door open” to challenges prem- ised on “even nondiscriminatory burdens, ” Dav is, 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, petitioners' claim about Proposition 12 falls well outside P i ke's heartland. Pp. 377– 380. (d) The Framers equipped Congress with considerable power to regu- late interstate commerce and preempt contrary state laws. See U. S.

Const., Art. I, § 8, cl. 3; Art. IV, § 2. While this Court has inferred an additional judicially enforceable r ule against certain state laws adopted even against the backdrop of congressional silence, the Court's cases

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also suggest extreme caution is warranted in its exercise. Disavowing reliance on this Court's core dormant Commerce Clause teachings fo- cused on discriminatory state leg islation, petitioners invite the Court to endorse new theories of implied judicial power. They would have the Court recog nize an “almost per se” r ule against the enforcement of state laws that have “extraterritorial effects”— even though it has long recog- nized that virtually all state laws create ripple effects beyond their bor- ders. Alternatively, they would have the Court prevent a State from regulating the sale of an ordinary consumer good within its own borders on nondiscriminatory terms— even though the P i ke line of cases they invoke has never before yielded such a result. Like the courts that faced this case below, this Court declines both incautious invitations.

Pp. 389 – 391.

Justice Gorsuch, joined by Justice Thomas and Justice Bar- rett, concluded in Part IV–B that, accepting petitioners' allegations, the P i ke balancing task that they propose in this case is one no court is equipped to undertake. Some out-of-state producers who choose to comply with Proposition 12 may incur new costs, while the law serves moral and health interests of some mag nitude for in-state residents. In a functioning democracy, those sorts of policy choices—balancing com- peting, incommensurable goods—belong to the people and their elected representatives. Pp. 380 – 383.

Justice Gorsuch, joined by Justice Thomas, Justice Sotomayor, and Justice Kagan, concluded in Part IV– C that the allegations in the complaint were insuffcient as a matter of law to demonstrate a substan- tial burden on interstate commerce, a showing P i ke requires be fore a court may assess the law's competing benefts or weigh the two sides against each other, and that the facts pleaded merely allege harm to some producers' favored “methods of operation” which the Court found insuffcient to state a claim in Exxo n Cor p. v. Gov er nor o f Mar y land, 437 U. S. 117, 127. Pp. 383 – 387.

Justice Gorsuch, joined by Justice Thomas and Justice Bar- rett, concluded in Part IV–D that petitioners have not asked the Court to treat putative harms to out-of-state animal welfare or other noneco- nomic interests as freestanding harms cog nizable under the dormant Commerce Clause, and in any event that the Court's decisions authoriz- ing claims alleg ing “ burdens on commerce, ” Dav is, 553 U. S., at 353, do not provide judges “a roving license” to reassess the wisdom of state leg islation in light of any conceivable out-of-state interest, economic or otherwise, Un i ted Haulers, 550 U. S., at 343. Pp. 387– 389.

Justice Sotomayor, joined by Justice Kagan, concluded that the judg ment should be affrmed, not because courts are incapable of balanc- ing economic burdens against noneconomic benefts as P i ke requires or

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because of any other fundamental reworking of that doctrine, but be- cause petitioners fail to plausibly allege a substantial burden on inter- state commerce as required by P i ke. Pp. 391– 393.

Justice Barrett concluded that the judg ment should be affrmed because P i ke balancing requires both the benefts and burdens of a state law to be judicially cog nizable and comparable, see Depar tmen t o f Rev enue o f Ky. v. Dav is, 553 U. S. 328, 354 – 355, but the benefts and burdens of Proposition 12 are incommensurable; that said, the complaint plausibly alleges a substantial burden on interstate commerce because Proposition 12's costs are pervasive, burdensome, and will be felt pri- marily ( but not exclusively) outside California. Pp. 393 – 394.

Gorsuch, J., announced the judg ment 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, Soto- mayor, and Kagan, JJ., joined. Sotomayor, J., fled an opinion concur- ring in part, in which Kagan, J., joined, post, p. 391. Barrett, J., fled an opinion concurring in part, post, p. 393. Roberts, C. J., fled an opinion concurring in part and dissenting in part, in which Alito, Kavanaugh, and Jackson, JJ., joined, post, p. 394. Kavanaugh, J., fled an opinion concurring in part and dissenting in part, post, p. 403.

T imo thy S. Bisho p arg ued the cause for petiti oners.

With h im on the br iefs were Bre t t E. Legne r, Av i M. Kupfe r, Dan H immel farb, M ichael C. Fo r mica, Ellen Steen, and Trav is Cushman.

Depu ty So l ici t o r Gene ral Kneed le r arg ued the cause for the United States as amicus cur i ae urg ing reversa l. With h im on the br ief were So l ici t o r Gene ral Prel ogar, M ichael

R. Hust o n, M ichael S. Raab, and Tho mas Pulham.

M ichael J. M o ngan, Solicitor Genera l of Ca lifor nia, arg ued the cause for the state respondents. With h im on the br ief were Rob Bo n ta, Attor ney Genera l of Ca lifor nia, Tho mas

S. Pa t te rso n, Seni or Assistant Attor ney Genera l, Samuel T.

Harbo ur t, Deputy Solicitor Genera l, R. Ma t thew Wise and Mark R. Becking t o n, Supervising Deputy Attor neys Gen- e r a l , a n d N i c o l e We l i n d t , A s s o c i a t e D e p u t y S o l i c i t o r Genera l.

Counsel

Je ff rey A. L amken arg ued the cause for respondents Humane Society of the United States et a l. With h im on the br ief were M ichael G. Pa t t i ll o, Jr., Caleb Hayes-Dea ts, Br uce Wagman, and Jo n a than Lovvo r n.*

*Briefs of amici cur i ae urg ing reversal were fled for the State of Indi- ana et al. by Theodore E. Roki ta, Attorney General of Indiana, Tho mas

M. Fisher, Solicitor General, and Jul i a C. Payne and Mel inda R. Ho lmes,

Deputy Attorneys General, and by the Attorneys General for their respec- tive States as follows: Stev e Marshall of Alabama, Mark Br nov ich of Ari- zona, Lesl i e Ru tled ge of Arkansas, Chr istopher M. Car r of Georg ia, L aw- rence Wasden of Idaho, To m Mi ller of Iowa, Derek Schmid t of Kansas, Dan i el Camero n of Kentucky, Je ff L andr y of Louisiana, L ynn Fi tch of Mississippi, Er ic Schmi tt of Missouri, Aust in Knudsen of Montana, Doug Peterso n of Nebraska, John For mella of New Hampshire, D rew Wr i gley of North Dakota, Dav e Yost of Ohio, John M. O'Co nnor of Oklahoma, Alan Wi lso n of South Carolina, Jaso n R. Ravnsborg of South Dakota, Herber t

H. Sla ter y III of Tennessee, Ken Paxto n of Texas, Sean D. Reyes of Utah,

Jaso n Miyares of Virg inia, Pa tr ick M or r isey of West Virg inia, and Br id get H i ll of Wyoming; for the American Association of Swine Veteri- narians by Aaro n D. Van Oor t, Ty ler A. Young, Nicho las J. Nelso n, and L ance W. L ange; for the Association des Éleveurs de Canards et d'O ies du Québec et al. by Michael Tenenbaum; for the Association for Accessible Medicines by Jay P. Le f kow i tz and Ma tthew D. Rowen; for the Buckeye Institute by L ar r y J. Obho f, Jr., and Rober t Al t; for the Canadian Pork Council et al. by Roy T. Engler t, Jr.; for the Chamber of Commerce of the United States of America by Ste ffen N. Johnso n and Michael W. M cCo n- nell; for the National Association of Manufacturers et al. by Sean Maro tta, Pa tr ick Hedren, and Karen R. Har ned; for the National Taxpayers Union Foundation by Joseph D. Henchman and Ty ler Mar t inez; for the North American Meat Institute by Paul J. Zid l icky and Er ic D. M cAr thur; for the North Carolina Chamber Legal Institute et al. by Gene C. Schaer r and Er i k S. Ja ffe; for the Pacifc Legal Foundation by Deborah J. L a Fetra and Adi tya D ynar; for Pharmaceutical Research and Manufacturers of America by Allo n Kedem, Je ff rey L. Handwerker, James C. Stansel, Me- l issa B. Kimmel, and Joanne Chan; for Protect the Harvest by Ira T.

Kasdan; for the Retail Litigation Center, Inc., et al. by Beth S. Br ink- mann, Deborah W h i te, and Angelo I. Amador; for the State Pork Pro- ducers Association of Iowa et al. by Eldo n M cA fee and Chr ist ina G r uenha- gen; for the Washington Legal Foundation by John M. Masslo n II and Cor y

Briefs of amici cur i ae urg ing affrmance were fled for the State of Illinois et al. by Kwame Raoul, Attorney General of Illinois, Jane El inor

Cite as: 598 U. S. 356 (2023) 363 Opinion of the Court

Justice Gorsuch announced the judg ment of the Cour t and delivered the opini on of the Cour t, except as to Par ts IV–B, IV– C, and IV–D.

What goods belong in our stores? Usua lly, consumer de- mand and loca l laws supply some of the answer. Recently, Ca lifor nia adopted just such a law banning the in-state sa le of cer tain pork products der ived from breeding pigs confned in sta lls so sma ll they cannot lie down, stand up, or tur n around. In response, two groups of out-of-state pork pro-

No tz, Solicitor General, Sarah A. Hunger, Deputy Solicitor General, Chr is- t ina Hansen, Assistant Attorney General, by Dana Nessel, Attorney Gen- eral of Michigan, Fadwa A. Hammoud, Solicitor General, and Ann M.

Sher man, Deputy Solicitor General, by Ma tthew J. Pla tkin, Acting Attor- ney General of New Jersey, and by the Attorneys General for their respec- tive jurisdictions as follows: Ph i l ip J. We iser of Colorado, Wi ll i am To ng of Connecticut, Karl Racine of the District of Columbia, Aaro n M. Frey of Maine, Br i an E. Frosh of Maryland, Maura Healey of Massachusetts, Aaro n D. Ford of Nevada, Hector Balderas of New Mexico, Let i t i a James of New York, Ellen F. Rosenblum of Oregon, Peter F. Nero nha of Rhode Island, and Rober t W. Ferguso n of Washington; for the American Public Health Association et al. by Henr y We isburg and Ma tthew G. Berkow i tz; for the American Society for the Prevention of Cr uelty to Animals by Jenn i fer H. Ch in; for the Animal Protection and Rescue League, Inc., by Br yan W. Pease; for Animal Protection Organizations et al. by Ka ther ine

A. Meyer; for the Association of California Egg Farmers by Tho mas G.

Saunders; for the Center for a Humane Economy et al. by Jessica L.

Blo me; for Constitutional Law Scholars by Er ic B. Boettcher; for Eco- nomic Research Organizations by Benjamin D. Ba ttles and A ga tha M.

Co le; for Federalism Scholars by G regor y M. Lipper; for the Global Animal Partnership et al. by Alethea Anne Sw i f t, Jo na than S. Massey, and Wi l- l i am J. Fr i edman; for Historians by Sheldo n Eisenberg; for the National League of Cities et al. by John J. Korzen; for the Northeast Organic Dairy Producers Alliance by Chr istopher J. Wr i gh t and Jaso n Neal; for the Per- due Premium Meat Co. by Mi tchell Y. Mir v iss; for the Physicians Commit- tee for Responsible Medicine by Corey Page; for Public Citizen by Nandan

M. Josh i, All iso n M. Zi ev e, and Sco tt L. Nelso n; for Worker Safety Advo-

cates by Dav id S. Muraskin; for Dr. Leon Barringer by El i zabeth R. M oul to n and Melan i e R. Hallums; for Sen. Cory Booker by Glenn A.

Danas; for Donald Broom et al. by G regor y G. Rapaw y; for Barry Fried- man et al. by El i zabeth B. Wydra, Br i anne J. Gorod, and Br i an R. Fra- zelle; for Jim Keen, DVM, Ph.D., et al. by Mark M. Le i tner and Joseph

Opinion of the Court

ducers fled th is lawsuit, arg uing that the law unconstituti on- a lly interferes w ith their preferred way of doing business in vi olati on of th is Cour t's dor mant Commerce Clause prece- dents. Both the distr ict cour t and cour t of appea ls dis- missed the producers' complaint for failing to state a claim.

We affr m. Companies that choose to sell products in var i ous States must nor ma lly comply w ith the laws of those var i ous States. Assuredly, under th is Cour t's dor mant Commerce Clause decisi ons, no State may use its laws to discr iminate purposefu lly against out-of-state economic in- terests. But the pork producers do not suggest that Ca lifor- nia's law offends th is pr inciple. Instead, they invite us to fash i on two new and more aggressive constituti ona l restr ic- ti ons on the ability of States to reg u late goods sold w ith in their borders. We decline that invitati on. Wh ile the Con- stituti on addresses many weighty issues, the type of pork chops Ca lifor nia merchants may sell is not on that list.

Moder n Amer ican grocery stores offer a dizzy ing array of choice. Of ten, consumers may choose among eggs that are large, medium, or sma ll; eggs that are wh ite, brown, or some other color; eggs from cage-free ch ickens or ones raised con- sistent w ith organic far ming standards. When it comes to meat and fsh, the opti ons are no less plentifu l. Products may be marketed as free range, w ild caught, or graded by qua lity (pr ime, choice, select, and beyond). The pork prod- ucts at issue here, too, sometimes come w ith “antibi otic-free” and “crate-free” labels. USDA, Repor t to Congress: Live-

S. Goode; for O. Carter Snead et al. by Megan M. Wo ld; and for Mark Wu

by Mr. Wu, pro se.

Briefs of amici cur i ae were fled for Agricultural and Resource Econom- ics Professors by Ka thleen Har tnett and Adam S. Gershenso n; for Butch- erBox by Joshu a I. Sch i ller; for Small and Independent Farming Busi- nesses et al. by Jami e Crooks; and for Lea Brilmayer by Tassi ty S.

Johnso n.

Cite as: 598 U. S. 356 (2023) 365 Opinion of the Court

stock Mandatory Repor ting 18 (2018), https://www.ams.usda . g o v / s i t e s / d e f a u l t / f i l e s / m e d i a / L M R 2 0 1 8 R e p o r t t o C o n g r e s s .pdf. Much of th is product differentiati on refects consumer demand, infor med by individua l taste, hea lth, or mora l considerati ons.

Infor med by similar concer ns, States (and their predeces- sors) have long enacted laws aimed at protecting anima l wel- fare. As far back as 1641, the Massachusetts Bay Colony proh ibited “ Tirranny or Cr ueltie towards any br uite Crea- ture. ” Body of Liber ties § 92, in A Bibli ograph ica l Sketch of the Laws of the Massachusetts Colony 52 – 53 (1890). Today, Massachusetts proh ibits the sa le of pork products from breeding pigs (or their offspr ing) if the breeding pig has been confned “ in a manner that prevents [it] from ly ing down, standing up, fu lly extending [its] limbs or tur ning around freely. ” Mass. Gen. Laws Ann., ch. 129, App. §§ 1– 3, 1– 5 (Cum. Supp. 2023). Nor is that State a lone. Flor ida's Con- stituti on proh ibits “any person [from] confn[ing] a pig dur ing preg nancy . . . in such a way that she is prevented from tur ning around freely. ” Ar t. X, § 21(a). Ar izona, Maine, Mich igan, Oregon, and Rhode Island, too, have laws reg u lat- ing anima l confnement practices w ith in their borders. See Ar iz. Rev. Stat. Ann. § 13 – 2910.07(A) (2018); Me. Rev. Stat.

A n n . , T i t . 7 , § § 4 0 2 0 ( 1 ) – ( 2 ) ( 2 0 1 8 ) ; M i c h . C o m p . L a w s § 2 8 7 . 7 4 6 ( 2 ) ( We s t C u m . S u p p . 2 0 2 2 ) ; O r e . R e v. S t a t . §§ 600.150(1)–(2) (2021); R. I. Gen. Laws § 4 –1.1– 3 (Supp.

2022).

Th is case involves a cha llenge to a Ca lifor nia law known as Propositi on 12. In November 2018 and w ith the suppor t of about 63% of par ticipating voters, Ca lifor nia adopted a ba llot initiative that revised the State's existing standards for the in-state sa le of eggs and announced new standards for the in-state sa le of pork and vea l products. App. to Pet. for Cer t. 37a – 46a. As relevant here, Propositi on 12 forbids the in-state sa le of whole pork meat that comes from breed- ing pigs (or their immediate offspr ing) that are “confned

Opinion of the Court

in a cr uel manner. ” Ca l. Hea lth & Safety Code Ann. § 25990( b)(2) (West Cum. Supp. 2023). Subject to cer tain ex- cepti ons, the law deems confnement “cr uel” if it prevents a pig from “ ly ing down, standing up, fu lly extending [its] limbs, or tur ning around freely. ” § 25991(e)(1). Since Prop- ositi on 12's adopti on, the State has beg un developing “pro- posed reg u lati ons” that wou ld per mit compliance “cer tifca- ti on[s] ” to be issued “ by non-gover nmenta l th ird par ties, many used for myr iad programs (e. g., `organic ') a lready. ” Br ief for Intervenor Respondents 30, n. 8. A spir ited debate preceded the vote on Propositi on 12.

Proponents observed that, in some far ming operati ons, preg- nant pigs remain “ [e]ncased” for 16 weeks in “ft-to-size” meta l crates. M. Scu lly, A Br ief for the Pigs: The Case of Na t io n al Po rk Produce rs Co unci l v. Ross, Nati ona l Review, Ju l y 1 1 , 2 0 2 2 , h t t p s : / / w w w. n a t i o n a l r ev i e w. c o m / 2 0 2 2 / 0 7 / a - br ief - for - the - pigs - the - case - of - nati ona l - pork - producers - council-v-ross/. These anima ls may receive their only op- por tunity for exercise when they are moved to a separate bar n to g ive bir th and later retur ned for another 16 weeks of preg nancy confnement —w ith the cycle repeating until the pigs are slaughtered. Ib i d. Proponents hoped that Propo- siti on 12 wou ld go a long way toward eliminating pork sourced in th is manner “from the Ca lifor nia marketplace. ”

A. Padilla, Ca l. Secretary of State, Ca lifor nia Genera l Elec-

t i o n — O f f i c i a l Vo t e r I n f o r m a t i o n G u i d e 7 0 ( No v. 6 , 2 0 1 8 ) ( Vo t e r G u i d e ) , h t t p s : / / v i g. c d n . s o s . c a . g o v / 2 0 1 8 / g e n e r a l / p d f / complete-vig.pdf. Proponents a lso suggested that the law wou ld have hea lth benefts for consumers because “pack ing anima ls in tiny, flthy cages increases the r isk of food poison- ing. ” Ib i d.; see App. to Pet. for Cer t. 201a – 202a.

Opponents pressed their case in strong ter ms too. They arg ued that existing far ming practices did a better job of protecting anima l welfare (for example, by preventing pig- on-pig aggressi on) and ensur ing consumer hea lth ( by avoid- ing contaminati on) than Propositi on 12 wou ld. Id., at 185a – 187a; see a lso Voter Guide 70 –71. They a lso war ned voters

Cite as: 598 U. S. 356 (2023) 367 Opinion of the Court

that Propositi on 12 wou ld require some far mers and proces- sors to incur new costs. Id., at 69. Ones that might be “passed through” to Ca lifor nia consumers. Ib i d.

Shor tly af ter Propositi on 12's adopti on, two organiza- ti ons—the Nati ona l Pork Producers Council and the Amer i- can Far m Bureau Federati on (collectively, petiti oners)—fled th is lawsuit on beha lf of their members who raise and proc- ess pigs. App. to Pet. for Cer t. 154a –155a. Petiti oners a l- leged that Propositi on 12 vi olates the U. S. Constituti on by imper missibly burdening interstate commerce. Id., at 230a – 232a.

In suppor t of that lega l claim, petiti oners pleaded a num- ber of facts. They acknowledged that, in response to con- sumer demand and the laws of other States, 28% of their industry has a lready conver ted to some for m of group hous- ing for preg nant pigs. Id., at 186a. But, petiti oners cau- ti oned, even some far mers who a lready raise group-housed pigs w ill have to modify their practices if they w ish to com- ply w ith Propositi on 12. Id., at 208a – 209a. Much of pork producti on today is ver tica lly integrated, too, w ith far mers selling pigs to large processing fr ms that tur n them into different “cuts of meat” and distr ibute the “different par ts . . . a ll over to completely different end users. ” Id., at 334a – 335a. Revising th is system to segregate and trace Propo- siti on 12-compliant pork, petiti oners a lleged, w ill require cer tain processing fr ms to make substantia l new capita l in- vestments. Id., at 205a – 206a. Ultimately, petiti oners esti- mated that “compliance w ith Propositi on 12 w ill increase producti on costs” by “9.2% . . . at the far m level. ” Id., at 214a. These compliance costs w ill fa ll on Ca lifor nia and out- of-state producers a like. Ib i d. But because Ca lifor nia im- por ts a lmost a ll the pork it consumes, petiti oners empha- sized, “ the major ity” of Propositi on 12's compliance costs w ill be initia lly bor ne by out-of-state fr ms. Ib i d.

Af ter considerable moti ons practice, the distr ict cour t held that petiti oners' complaint failed to state a claim as a matter of law and dismissed the case. 456 F. Supp. 3d 1201 (SD Ca l.

Opinion of the Court

2020). With Judge Ikuta wr iting for a unanimous panel, the Ninth Circuit affr med. 6 F. 4th 1021 (2021). Follow ing that r u ling, petiti oners sought cer ti orar i and we agreed to consider the complaint's lega l suffciency for ourselves. 596

The Constituti on vests Congress w ith the power to “reg u- late Commerce . . . among the severa l States. ” Ar t. I, § 8, cl. 3. Everyone agrees that Congress may seek to exercise th is power to reg u late the interstate trade of pork, much as it has done w ith var i ous other products. Everyone agrees, too, that congressi ona l enactments may preempt conficting state laws. See Ar t. VI, cl. 2. But everyone a lso agrees that we have noth ing like that here. Despite the persistent effor ts of cer tain pork producers, Congress has yet to adopt any statute that might displace Propositi on 12 or laws reg u- lating pork producti on 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).

That has led petiti oners to resor t to litigati on, pinning their hopes on what has come to be ca lled the do r man t Com- merce Clause. Reading between the Constituti on's lines, petiti oners observe, th is Cour t has held that the Commerce Clause not only vests Congress w ith the power to reg u late interstate trade; the Clause a lso “contain[s] a fur ther, nega- tive command, ” one effectively forbidding the enforcement of “cer tain state [economic reg u lati ons] even when Congress has failed to leg islate on the subject. ” Ok l aho ma Tax Co mm'n v. Je ffe rso n Lines, Inc., 514 U. S. 175, 179 (1995).

Th is view of the Commerce Clause developed gradua lly.

In G ibbo n s v. Ogden, Ch ief Justice Marsha ll recog nized that the States' constituti ona lly reserved powers enable them to reg u late commerce in their own jur isdicti ons in ways sure to have “a remote and considerable infuence on commerce” in other States. 9 Wheat. 1, 203 (1824). By way of example,

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he cited “ [i]nspecti on laws, quarantine laws, [and] hea lth laws of every descr ipti on. ” Ib i d. At the same time, how- ever, Ch ief Justice Marsha ll saw “great force in th[e] arg u- ment” that the Commerce Clause might impliedly bar cer tain types of state economic reg u lati on. Id., at 209. Decades later, in Coo ley v. Bo ard o f Warden s o f Po r t o f Ph i l adelph i a ex rel. Soc. fo r Rel i e f o f D istressed P i l o ts, th is Cour t again recog nized that the power vested in Congress to reg u late interstate commerce leaves the States substantia l leeway to adopt their own commercia l codes. 12 How. 299, 317– 321 (1852). But once more, the Cour t h inted that the Constitu- ti on may come w ith some restr icti ons on what “may be reg u- lated by the States” even “ in the absence of a ll congressi ona l leg islati on. ” Id., at 320.

Eventua lly, the Cour t cashed out these war nings, holding that state laws offend the Commerce Clause when they seek to “ build up . . . domestic commerce” through “ burdens upon the industry and business of other States, ” regardless of whether Congress has spoken. G uy v. Bal t imo re, 100 U. S.

434, 443 (1880). At the same time, though, the Cour t reiter- ated that, absent discr iminati on, “a State may exclude from its terr itory, or proh ibit the sa le therein of any ar ticles wh ich, in its judg ment, fair ly exercised, are pre judicia l to” the interests of its citizens. Ib i d.

Today, th is antidiscr iminati on pr inciple lies at the “very c o r e ” o f o u r d o r m a n t C o m m e r c e C l a u s e j u r i s p r u d e n c e .

Camps Newfo und /O w a t o nn a, Inc. v. To w n o f Har r iso n, 520

U. S. 564, 581 (1997). In its “moder n” cases, th is Cour t has

said that the Commerce Clause proh ibits the enforcement of state laws “dr iven by . . . `economic protecti onism—that is, reg u latory measures desig ned to beneft in-state economic interests by burdening out-of-state competitors. ' ” Depar t- men t o f Rev enue o f Ky. v. Dav is, 553 U. S. 328, 337– 338 (2008) (quoting New Ene rgy Co. o f Ind. v. Limbach, 486 U. S. 269, 273 – 274 (1988)); see a lso Tennessee Wine and Sp ir i ts Re tai le rs Assn. v. Tho mas, 588 U. S. –––, ––– (2019) (observ-

Opinion of the Court

ing that th is Cour t's cases operate pr incipa lly to “safeg uard against state protecti onism”); No r thw est Airl ines, Inc. v.

Co un ty o f Ken t, 510 U. S. 355, 373, n. 18 (1994) (descr ibing “a vi olati on of the dor mant Commerce Clause” as “discr imi- nati on against interstate commerce”).

Admittedly, some “Members of the Cour t have authored vigorous and thoughtfu l cr itiques of th is interpretati on” of the Commerce Clause. Tennessee Wine, 588 U. S., at ––– (citing cases). They have not necessar ily quarreled w ith the antidiscr iminati on pr inciple. But they have suggested that it may be more appropr iately housed elsewhere in the Constituti on. Perhaps in the Impor t-Expor t Clause, wh ich proh ibits States from “ lay[ing] any Imposts or Duties on Impor ts or Expor ts” w ithout per missi on from Congress.

Ar t. I, § 10, cl. 2; see Camps Newfo und /O w a t o nn a, 520 U. S., at 621– 637 (Thomas, J., dissenting). Perhaps in the Pr ivi- leges and Immunities Clause, wh ich entitles “ [t]he Citizens of each State” to “a ll Pr ivileges and Immunities of Citizens in the severa l States. ” Ar t. IV, § 2; see Ty le r P ipe Indus- tr i es, Inc. v. Wash ing t o n Sta te Dep t. o f Rev enue, 483 U. S.

232, 265 (1987) (Sca lia, J., concurr ing in par t and dissenting in par t). Or perhaps the pr inciple inheres in the very str uc- ture of the Constituti on, wh ich “was framed upon the theory that the peoples of the severa l [S]tates must sink or sw im together. ” Ame r ican Tr ucking Assn s., Inc. v. M ich i gan Pub. Se r v. Co mm'n, 545 U. S. 429, 433 (2005) ( inter na l quota- ti on marks omitted).

Whatever one th inks about these cr itiques, we have no need to engage w ith any of them to resolve th is case. Even under our received dor mant Commerce Clause case law, peti- ti oners beg in in a tough spot. They do not a llege that Ca li- for nia's law seeks to advantage in-state fr ms or disadvan- tage out-of-state r iva ls. In fact, petiti oners d isavo w any discr iminati on-based claim, conceding that Propositi on 12 imposes the same burdens on in-state pork producers that it imposes on out-of-state ones. As petiti oners put it, “ the

Cite as: 598 U. S. 356 (2023) 371 Opinion of the Court

dor mant Commerce Clause . . . bar on protecti onist state statutes that discr iminate against interstate commerce . . . is not in issue here. ” Br ief for Petiti oners 2, n. 2.

Having conceded that Ca lifor nia's law does not implicate the antidiscr iminati on pr inciple at the core of th is Cour t's dor mant Commerce Clause cases, petiti oners are lef t to pur- sue two more ambiti ous theor ies. In the frst, petiti oners invoke what they ca ll “extraterr itor ia lity doctr ine. ” Id., at

19. They contend that our dor mant Commerce Clause cases

suggest an additi ona l and “a lmost pe r se” r u le forbidding en- forcement of state laws that have the “practica l effect of con- trolling commerce outside the State, ” even when those laws do not purposely discr iminate against out-of-state economic interests. Ib i d. Petiti oners fur ther insist that Propositi on 12 offends th is “a lmost pe r se” r u le because the law w ill im- pose substantia l new costs on out-of-state pork producers who w ish to sell their products in Ca lifor nia.

Th is arg ument fa lters out of the gate. Put aside what problems may attend the minor (factua l) premise of th is ar- g ument. Focus just on the major ( lega l) premise. Petiti on- ers say the “a lmost pe r se” r u le they propose follows ineluc- tably from three cases—Healy v. Bee r In st i tu te, 491 U. S. 324 (1989); Bro w n-Fo r man D ist i lle rs Co r p. v. New Yo rk Sta te Liquo r Au tho r i ty, 476 U. S. 573 (1986); and Baldw in v.

G. A. F. Seel i g, Inc., 294 U. S. 511 (1935). A close look at

those cases, however, revea ls noth ing like the r u le petiti on- ers posit. Instead, each typifes the familiar concer n w ith preventing purposefu l discr iminati on against out-of-state economic interests.

Star t w ith Baldw in. There, th is Cour t refused to enforce New York laws that barred out-of-state dairy far mers from selling their milk in the State “unless the pr ice paid to” them

Opinion of the Court

matched the minimum pr ice New York law g uaranteed in- state producers. Id., at 519. In that way, the cha llenged laws deliberately robbed out-of-state dairy far mers of the oppor tunity to charge lower pr ices in New York thanks to whatever “natura l competitive advantage” they might have en joyed over in-state dairy far mers—for example, lower cost str uctures, more productive far ming practices, or “ lusher pasturage. ” D. Regan, The Supreme Cour t and State Pro- tecti onism: Mak ing Sense of the Dor mant Commerce Clause, 84 Mich. L. Rev. 1091, 1248 (1986). The problem w ith New York 's laws was thus a simple one: They “plainly discr imi- nate[d] ” against out-of-staters by “erecting an economic bar- r ier protecting a major loca l industry against competiti on from w ithout the State. ” Dean M i l k Co. v. Mad iso n, 340

U. S. 349, 354 (1951) (discussing Baldw in). Rea lly, the laws

operated like “a tar iff or customs duty. ” West L ynn Cream- e r y, Inc. v. Healy, 512 U. S. 186, 194 (1994); see Baldw in, 294

U. S., at 523 (condemning the cha llenged laws for seek ing

to “protec[t] ” New York dairy far mers “against competiti on from w ithout”).

Bro w n-Fo r man and Healy differed from Baldw in only in that they involved pr ice-affr mati on, rather than pr ice-fxing, statutes. In Bro w n-Fo r man, New York required liquor dis- tillers to affr m (on a month ly basis) that their in-state pr ices were no h igher than their out-of-state pr ices. 476 U. S., at

576. Once more, the goa l was plain: New York sought to

force out-of-state distillers to “surrender ” whatever cost ad- vantages they en joyed against their in-state r iva ls. Id., at

580. Once more, the law amounted to “simple economic pro-

tecti onism. ” Ib i d. ( inter na l quotati on marks omitted).

In Healy, a Connecticut law required out-of-state beer merchants to affr m that their in-state pr ices were no h igher than those they charged in neighbor ing States. 491 U. S., at 328 – 330. Here, too, protecti onism took center stage. As the Cour t later noted, “ [t]he essentia l vice in laws” like Con- necticut's is that they “ hoard” commerce “for the beneft of ”

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in-state merchants and discourage consumers from crossing state lines to make their purchases from nearby out-of-state vendors. C & A Carbo ne, Inc. v. Cl arkst o w n, 511 U. S. 383, 391– 392 (1994). Nor did the law in Healy even try to cloak its discr iminatory purpose: “By its plain ter ms, the Connecti- cut affr mati on statute applie[d] solely to interstate” fr ms, and in that way “clear ly discr iminate[d] against interstate commerce. ” 491 U. S., at 340 – 341. The Cour t a lso worr ied that, if the Connecticut law stood, “each of the border States” cou ld “enac[t] statutes essentia lly identica l to Connecticut's” in reta liati on—a resu lt of ten associated w ith avowedly pro- tecti onist economic policies. Id., at 339 – 340.

Petiti oners insist that our reading of these cases misses the forest for the trees. On their account, Baldw in, Bro w n- Fo r man, and Healy didn't just fnd an imper missible dis- cr iminatory purpose in the cha llenged laws; they a lso sug- gested an “a lmost pe r se” r u le against state laws w ith “extraterr itor ia l effects. ” Br ief for Petiti oners 19, 23. In Healy, petiti oners stress, the Cour t included lang uage cr iti- cizing New York 's laws for having the “ `practica l effect' ” of “control[ ling] commerce `occurr ing wholly outside the bound- ar ies of [the] State. ' ” Br ief for Petiti oners 21, 25 (quoting 491 U. S., at 336). In Bro w n-Fo r man, petiti oners observe, the Cour t suggested that whether a state law “ `is addressed only to [in-state] sa les' ” “ `is irrelevant if the “practica l ef- fect” of the law is to control' ” out-of-state pr ices. Br ief for Petiti oners 21 (quoting 476 U. S., at 583). Petiti oners point to similar lang uage in Baldw in as well. Br ief for Petiti on- ers 37 (quoting 294 U. S., at 523 – 524).

In our view, however, petiti oners read too much into too little. “ [T]he lang uage of an opini on is not a lways to be parsed as though we were dea ling w ith lang uage of a stat- ute. ” Re i te r v. So no t o ne Co r p., 442 U. S. 330, 341 (1979).

Instead, we emphasize, our opini ons dispose of discrete cases

Opinion of the Court

and controversies and they must be read w ith a carefu l eye to context. See Cohen s v. Virg in i a, 6 Wheat. 264, 399 – 400 (1821) (Marsha ll, C. J.). And when it comes to Baldw in, Bro w n-Fo r man, and Healy, the lang uage petiti oners h igh- light appeared in a par ticu lar context and did par ticu lar work. Throughout, the Cour t explained that the cha llenged statutes had a speci fc imper missible “extraterr itor ia l ef- fect”—they deliberately “prevent[ed out-of-state fr ms] from under tak ing competitive pr icing ” or “depr ive[d] businesses and consumers in other States of `whatever competitive ad- vantages they may possess. ' ” Healy, 491 U. S., at 338 – 339 (quoting Bro w n-Fo r man, 476 U. S., at 580).

In recog nizing th is much, we say noth ing new. Th is Cour t has a lready descr ibed “ [t]he r u le that was applied in Baldw in and Healy” as addressing “pr ice control or pr ice affr mati on statutes” that tied “ the pr ice of . . . in-state prod- ucts to out-of-state pr ices. ” Phar maceu t ical Research and Mf rs. o f Ame r ica v. Walsh, 538 U. S. 644, 669 (2003) ( inter na l quotati on marks omitted). Many lower cour ts have read these decisi ons in exactly the same way. See, e. g., 6 F. 4th, at 1028 –1029; Associ a t io n fo r Accessible Med icines v. Frosh, 887 F. 3d 664, 669 (CA4 2018); Ene rgy and Env iro nmen t Legal In st. v. Epel, 793 F. 3d 1169, 1174 (CA10 2015); Ame r i- can Bev e rage Assn. v. Snyde r, 735 F. 3d 362, 373 (CA6 2013).

Consider, too, the strange places petiti oners' a lter native interpretati on cou ld lead. In our interconnected nati ona l marketplace, many (maybe most) state laws have the “practi- ca l effect of controlling ” extraterr itor ia l behavi or. State income tax laws lead some individua ls and companies to relocate to other jur isdicti ons. See, e. g., Banne r v. Un i ted Sta tes, 428 F. 3d 303, 310 (CADC 2005) (pe r cur i am ). Envi- ronmenta l laws of ten prove decisive when businesses choose where to manufacture their goods. See Ame r ican Bev e rage Assn., 735 F. 3d, at 379 (Sutton, J., concurr ing). Add to the extraterr itor ia l-effects list a ll manner of “ libel laws, secu- r ities requirements, char itable reg istrati on requirements, franch ise laws, tor t laws, ” and plenty else besides. J. Gold-

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smith & A. Sykes, The Inter net and the Dor mant Commerce Clause, 110 Ya le L. J. 785, 804 (2001). Nor, as we have seen, is th is a recent development. Since the founding, States have enacted an “ immense mass” of “ [i]nspecti on laws, quar- antine laws, [and] hea lth laws of every descr ipti on” that have a “considerable” infuence on commerce outside their bor- ders. G ibbo n s, 9 Wheat., at 203; see a lso Coo ley, 12 How., at 317– 321. Petiti oners' “a lmost pe r se” r u le against laws that have the “practica l effect” of “controlling ” extraterr ito- r ia l commerce wou ld cast a shadow over laws long under- stood to represent va lid exercises of the States' constituti on- a lly reserved powers. It wou ld provide neither cour ts nor litigants w ith meaning fu l g uidance in how to resolve dis- putes over them. Instead, it wou ld invite endless litigati on and inconsistent resu lts. Can anyone rea lly suppose Bald- w in, Bro w n-Fo r man, and Healy meant to do so much?

In re jecting petiti oners' “a lmost pe r se” theory we do not mean to tr ivia lize the role terr itory and sovereig n bound- ar ies play in our federa l system. Cer tainly, the Constituti on takes great care to provide r u les for fxing and chang ing state borders. Ar t. IV, § 3, cl. 1. Doubtless, too, cour ts must sometimes referee disputes about where one State's au- thor ity ends and another 's beg ins—both inside and outside the commercia l context. In carry ing out that task, th is Cour t has recog nized the usua l “ leg islative power of a State to act upon persons and proper ty w ith in the limits of its own terr itory, ” Ho y t v. Sprague, 103 U. S. 613, 630 (1881), a fea- ture of our constituti ona l order that a llows “different com- munities” to live “w ith different loca l standards, ” Sable Co m- mun ica t io n s o f Cal., Inc. v. FCC, 492 U. S. 115, 126 (1989).

But, by way of example, no one shou ld th ink that one State may adopt a law exempting secur ities held by the residents of a second State from taxati on in that second State. Bo n a- par te v. Tax Co ur t, 104 U. S. 592, 592 – 594 (1882). Nor, we have held, shou ld anyone th ink one State may prosecute the citizen of another State for acts committed “outside [the frst State's] jur isdicti on” that are not “ intended to produce [or

Opinion of the Court

that do not] produc[e] detr imenta l effects w ith in it. ” Strass- he im v. Dai ly, 221 U. S. 280, 285 (1911).

To resolve disputes about the reach of one State's power, th is Cour t has long consu lted or ig ina l and h istor ica l under- standings of the Constituti on's str ucture and the pr inciples of “sovereig nty and comity” it embraces. BMW o f No r th Ame r ica, Inc. v. Go re, 517 U. S. 559, 572 (1996). Th is Cour t has invoked as well a number of the Constituti on's express provisi ons—including “ the Due Process Clause and the Fu ll Faith and Credit Clause. ” Ph i ll ips Pe tro leum Co. v. Shu t ts, 472 U. S. 797, 818 (1985). The antidiscr iminati on pr inciple found in our dor mant Commerce Clause cases may well rep- resent one more effor t to mediate competing claims of sover- eig n author ity under our hor izonta l separati on of powers.

But none of th is means, as petiti oners suppose, that any questi on about the ability of a State to project its power extraterr itor ia lly must y ield to an “a lmost pe r se” r u le under the dor mant Commerce Clause. Th is Cour t has never be- fore claimed so much “ground for judicia l supremacy under the banner of the dor mant Commerce Clause. ” Un i ted Haule rs Assn., Inc. v. O ne i da-He rkime r So l i d Waste Man- agemen t Au tho r i ty, 550 U. S. 330, 347 (2007). We see no reason to change course now.1

1 Beyond Baldw in, Brown-For man, and Healy, petitioners point to Ed gar v. MITE Cor p., 457 U. S. 624 (1982), as authority for the “almost per se” r ule they propose. Invoking the dormant Commerce Clause, a plurality in that case declined to enforce an Illinois securities law that “directly regulate[d] transactions which [took] place . . . wholly outside the State” and involved individuals “ having no connection with Illinois. ” Id., at 641– 643 (emphasis added). Some have questioned whether the state law at issue in Ed gar posed a dormant Commerce Clause question as much as one testing the territorial limits of state authority under the Constitu- tion's horizontal separation of powers. See, e. g., D. Regan, Siamese Es- says: (I) CTS Cor p. v. D ynamics Cor p. o f Amer ica and Dormant Com- merce Clause Doctrine; (II) Extraterritorial State Leg islation, 85 Mich.

U. S. 529, 535 (2013) (“ [A]ll States enjoy equal sovereig nty”). But either

way, the Ed gar plurality opinion does not support the r ule petitioners

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Failing in their frst theory, petiti oners retreat to a second they associate w ith P i ke v. Br uce Church, Inc., 397 U. S. 137 (1970). Under P i ke, they say, a cour t must at least assess “ ` the burden imposed on interstate commerce' ” by a state law and prevent its enforcement if the law's burdens are “ `clear ly excessive in relati on to the putative loca l benefts. ' ” Br ief for Petiti oners 44. Petiti oners then rattle off a litany of reasons why they believe the benefts Propositi on 12 se- cures for Ca lifor nians do not outweigh the costs it imposes on out-of-state economic interests. We see problems w ith th is theory too.

In the frst place, petiti oners overstate the extent to wh ich P i ke and its progeny depar t from the antidiscr iminati on r u le that lies at the core of our dor mant Commerce Clause jur is- pr udence. As th is Cour t has previ ously explained, “no clear line” separates the P i ke line of cases from our core antidis- cr iminati on precedents. Gene ral M o t o rs Co r p. v. Tracy, 519

U. S. 278, 298, n. 12 (1997). Wh ile many of our dor mant

Commerce Clause cases have asked whether a law exh ibits “ `facia l discr iminati on, ' ” “severa l cases that have purpor ted to apply [P i ke,] including P i ke itself, ” have “ tur ned in whole or in par t on the discr iminatory character of the cha llenged state reg u lati ons. ” Ib i d. In other words, if some of our cases focus on whether a state law discr iminates on its face, the P i ke line serves as an impor tant reminder that a law's practica l effects may a lso disclose the presence of a discr imi- natory purpose. P i ke itself illustrates the point. That case concer ned an Ar izona order requir ing canta loupes grown in state to be

propose. That decision spoke to a law that directly regulated out-of-state transactions by those with no connection to the State. Petitioners do not allege those conditions exist here. To the contrary, they acknowledge that Proposition 12 regulates only products that companies choose to sell “within” California. Cal. Health & Safety Code Ann. § 25990( b).

Opinion of the Court

processed and packed in state. 397 U. S., at 138 –140. The Cour t held that Ar izona's order vi olated the dor mant Com- merce Clause. Id., at 146. Even if that order cou ld be fair ly character ized as facia lly neutra l, the Cour t stressed that it “requir[ed] business operati ons to be perfor med in [state] that cou ld more effciently be perfor med elsewhere. ” Id., at 145. The “practica l effect[s] ” of the order in opera- ti on thus revea led a discr iminatory purpose—an effor t to in- su late in-state processing and packag ing businesses from out-of-state competiti on. Id., at 140, 145.

Other cases in the P i ke line underscore the same message.

In M inneso ta v. Cl ov e r Lea f Creame r y Co., the Cour t found no imper missible burden on interstate commerce because, look ing to the law's effects, “ there [was] no reason to suspect that the gainers” wou ld be in-state fr ms or that “ the losers [wou ld be] out-of-state fr ms. ” 449 U. S. 456, 473 (1981); see a lso i d., at 474 – 477, and n. 2 (Powell, J., concurr ing in par t and dissenting in par t) (ask ing whether the “actua l purpose, ” if not the “ `avowed purpose, ' ” of the law was discr imina- ti on). Similar ly, in Exxo n Co r p. v. Gov e r no r o f Mar y l and, the Cour t keyed to the fact that the effect of the cha llenged law was only to sh if t business from one set of out-of-state suppliers to another. 437 U. S. 117, 127 (1978). And in Un i ted Haule rs, a plura lity upheld the cha llenged law be- cause it cou ld not “detect” any discr iminati on in favor of in- state businesses or against out-of-state competitors. 550

U. S., at 346. In each of these cases and many more, the

p r e s e n c e o r a b s e n c e o f d i s c r i m i n a t i o n i n p r a c t i c e p r o v e d decisive.

Once again, we say noth ing new here. Some time ago, Tracy identifed the congr uity between our core dor mant Commerce Clause precedents and the P i ke line. 519 U. S., at 298, n. 12. Many lower cour ts have done the same. See,

e. g., Rosenbl a t t v. San ta M o n ica, 940 F. 3d 439, 452 (CA9

2019); Park Pe t Sho p, Inc. v. Ch icago, 872 F. 3d 495, 501 (CA7 2017); Amanda Acqu isi t io n Co r p. v. Un i v e rsal Foods Co r p.,

Cite as: 598 U. S. 356 (2023) 379 Opinion of the Court 877 F. 2d 496, 505 (CA7 1989). So have many scholars. See,

e. g., R. Fa llon, The Dynamic Constituti on 311 (2d ed. 2013)

(observing that P i ke serves to “ `smoke out' a h idden” pro-

The Constituti ona l Leg itimacy of the Dor mant Commerce Clause, 97 Va. L. Rev. 1877, 1927 (2011); Regan, 84 Mich.

Nor does any of th is help petiti oners in th is case. They not only disavow any claim that Propositi on 12 discr iminates on its face. They nowhere suggest that an examinati on of Propositi on 12's practica l effects in operati on wou ld disclose purposefu l discr iminati on against out-of-state businesses.

Wh ile th is Cour t has lef t the “cour troom door open” to cha l- l e n g e s p r e m i s e d o n “ e v e n n o n d i s c r i m i n a t o r y b u r d e n s , ” Dav is, 553 U. S., at 353, and wh ile “a sma ll number of our cases have inva lidated state laws . . . that appear to have been genuinely nondiscr iminatory, ” Tracy, 519 U. S., at 298, n. 12,2

2 Most notably, Tracy referred to, and petitioners briefy allude to, a line of cases that orig inated before P i ke in which this Court refused to enforce certain state regulations on instr umentalities of interstate transporta- tion—tr ucks, trains, and the like. See, e. g., Bibb v. Nav ajo Fre i gh t Lines, Inc., 359 U. S. 520, 523 – 530 (1959) (concerning a state law specifying cer- tain mud faps for tr ucks and trailers); Sou ther n Paci fc Co. v. Ar i zo na ex rel. Sull i v an, 325 U. S. 761, 763 –782 (1945) (addressing a state law regard- ing the length of trains). Petitioners claim these cases support something like the extraterritoriality or balancing r ules they propose. But at least some decisions in this line might be viewed as condemning state laws that “although neutral on their face . . . were enacted at the instance of, and primarily beneft, ” in-state interests. Raymo nd M o tor Transp., Inc. v.

Rice, 434 U. S. 429, 447 (1978); see also B. Friedman & D. Deacon, A Course Un b r o k e n : T h e C o n s t i t u t i o n a l L e g i t i m a c y o f t h e D o r m a n t C o m m e r c e Clause, 97 Va. L. Rev. 1877, 1927 (2011). In any event, this Court “ has only rarely held that the Commerce Clause itself pre-empts an entire feld from state regulation, and then only when a lack of national uniformity would impede the fow of interstate goods. ” Exxo n Cor p. v. Gov er nor o f Mar y land, 437 U. S. 117, 128 (1978) (emphasis added). Nothing like that exists here. We do not face a law that impedes the fow of commerce.

Pigs are not tr ucks or trains.

Opinion of Gorsuch, J.

petiti oners' claim fa lls well outside P i ke's hear tland. That is not an auspici ous star t.

Matters do not improve from there. Wh ile P i ke has tra- diti ona lly served as another way to test for purposefu l dis- c r i m i n a t i o n a g a i n s t o u t - o f - s t a t e e c o n o m i c i n t e r e s t s , a n d wh ile some of our cases associated w ith that line have ex- pressed specia l concer n w ith cer tain state reg u lati on of the i n s t r u m e n t a l i t i e s o f i n t e r s t a t e t r a n s p o r t a t i o n , s e e n . 2, supra, petiti oners wou ld have us retool P i ke for a much more ambiti ous project. They urge us to read P i ke as author izing judges to str ike down du ly enacted state laws reg u lating the in-state sa le of ordinary consumer goods ( like pork) based on noth ing more than their own assessment of the relevant law's “costs” and “ benefts. ” That we can hardly do. Whatever other judicia l author i- ties the Commerce Clause may imply, that k ind of freewheel- ing power is not among them. Petiti oners point to noth ing in the Constituti on's text or h istory that suppor ts such a project. And our cases have expressly cauti oned against judges using the dor mant Commerce Clause as “a roving license for federa l cour ts to decide what activities are ap- propr iate for state and loca l gover nment to under take. ” Un i ted Haule rs, 550 U. S., at 343. Wh ile “ [t]here was a time when th is Cour t presumed to make such binding judg ments for society, under the g uise of interpreting the Due Process Clause, ” we have long refused pleas like petiti oners' “ to re- claim that ground” in the name of the dor mant Commerce Clause. Id., at 347.

Not only is the task petiti oners propose one the Commerce Clause does not author ize judges to under take. Th is Cour t has a lso recog nized that judges of ten are “not instituti ona lly suited to draw reliable conclusi ons of the k ind that wou ld be necessary . . . to satisfy [the] P i ke” test as petiti oners con- ceive it. Dav is, 553 U. S., at 353.

Our case illustrates the problem. On the “cost” side of the ledger, petiti oners a llege they w ill face increased producti on

Cite as: 598 U. S. 356 (2023) 381 Opinion of Gorsuch, J.

expenses because of Propositi on 12. On the “ benefts” side, petiti oners acknowledge that Ca lifor nians voted for Proposi- ti on 12 to vindicate a var iety of interests, many noneconomic.

See App. to Pet. for Cer t. 192a (a lleg ing in their complaint that “Propositi on 12's requirements were dr iven by [a] con- cepti on of what qua lifes as `cr uel' anima l housing ” and by the State's concer n for the “ ` hea lth and safety of Ca lifor nia consumers' ”). How is a cour t supposed to compare or weigh economic costs (to some) against noneconomic benefts (to others)? No neutra l lega l r u le g uides the way. The com- peting goods before us are insusceptible to resoluti on by ref- erence to any jur idica l pr inciple. Rea lly, the task is like being asked to decide “whether a par ticu lar line is longer than a par ticu lar rock is heavy. ” Bend ix Au t o l i te Co r p. v. M i dw esco En te r pr ises, Inc., 486 U. S. 888, 897 (1988) (Sca- lia, J., concurr ing in judg ment).

Faced w ith th is problem, petiti oners reply that we shou ld heavily discount the benefts of Propositi on 12. They say that Ca lifor nia has little interest in protecting the welfare of anima ls raised elsewhere and the law's hea lth benefts are overblown. But a long the way, petiti oners offer notable concessi ons too. They acknowledge that States may some- times ban the in-state sa le of products they deem uneth ica l or immora l w ithout regard to where those products are made (for example, goods manufactured w ith ch ild labor). See Tr. of Ora l Arg. 51 (“ [A] state is perfectly entitled to enforce its mora ls in state”); see a lso Weste r n Un io n Telegraph Co. v.

James, 162 U. S. 650, 653 (1896) ( holding that States may enact laws to “promote . . . public mora ls”). And, at least arg uably, Propositi on 12 works in just th is way—banning from the State a ll whole pork products der ived from prac- tices its voters consider “cr uel. ” Petiti oners a lso concede that States may of ten adopt laws addressing even “ imper- fectly understood” hea lth r isks associated w ith goods sold w ith in their borders. Reply Br ief 13. And, again, no one disputes that some who voted for Propositi on 12 may have done so w ith just that sor t of goa l in mind. See, e. g., USDA

Opinion of Gorsuch, J.

Proposed Ru le To Amend Organic Livestock and Pou ltry Producti on Requirements, 87 Fed. Reg. 48565 (2022) (afford- ing anima ls more space “may resu lt in hea lth ier livestock products for human consumpti on”).

So even accepting everyth ing petiti oners say, we remain lef t w ith a task no cour t is equipped to under take. On the one hand, some out-of-state producers who choose to comply w ith Propositi on 12 may incur new costs. On the other hand, the law serves mora l and hea lth interests of some (dis- putable) mag nitude for in-state residents. Some might rea- sonably fnd one set of concer ns more compelling. Others might fair ly disagree. How shou ld we settle that dispute?

The competing goods are incommensurable. Your g uess is as good as ours.

More accurately, your g uess is be t te r than ours. In a func- ti oning democracy, policy choices like these usua lly belong to the people and their elected representatives. They are entitled to weigh the relevant “politica l and economic ” costs and benefts for themselves, M oo r man Mfg. Co. v. Bair, 437

U. S. 267, 279 (1978), and “ try novel socia l and economic ex-

per iments” if they w ish, New Sta te Ice Co. v. Li ebmann, 285

U. S. 262, 311 (1932) (Brandeis, J., dissenting). Judges can-

not displace the cost-beneft ana lyses embodied in democrati- ca lly adopted leg islati on g uided by noth ing more than their own faith in “Mr. Herber t Spencer 's Socia l Statics, ” Lochne r

v. New Yo rk, 198 U. S. 45, 75 (1905) (Holmes, J., dissenting)—

or, for that matter, Mr. Wilson Pond's Pork Producti on Sys- tems, see W. Pond, J. Maner, & D. Harr is, Pork Producti on Systems: Effcient Use of Sw ine and Feed Resources (1991). I f , a s p e t i t i o n e r s i n s i s t , C a l i f o r n i a 's l a w r e a l l y d o e s threaten a “massive” disr upti on of the pork industry, see Br ief for Petiti oners 2, 4, 19 —if pig husbandry rea lly does “ `imperatively demand' ” a sing le unifor m nati onw ide r u le, i d., at 27—they are free to petiti on Congress to intervene.

Under the (wakefu l) Commerce Clause, that body en joys the power to adopt federa l leg islati on that may preempt con-

Cite as: 598 U. S. 356 (2023) 383 Opinion of Gorsuch, J.

ficting state laws. That body is better equipped than th is Cour t to identify and assess a ll the per tinent economic and politica l interests at play across the country. And that body is cer tainly better positi oned to claim democratic suppor t for any policy choice it may make. But so far, Congress has declined the producers' sustained entreaties for new leg isla- ti on. See Par t I, supra (citing failed effor ts). And w ith that h istory in mind, it is hard not to wonder whether peti- ti oners have ventured here only because w inning a major ity of a handfu l of judges may seem easier than marsha ling a major ity of elected representatives across the street.

Even as petiti oners conceive P i ke, they face a problem.

As they read it, P i ke requires a plaintiff to plead facts plausi- bly show ing that a cha llenged law imposes “substantia l bur- dens” on interstate commerce be fo re a cour t may assess the law's competing benefts or weigh the two sides against each other. Br ief for Petiti oners 44. And, telling ly, the com- plaint before us fails to clear even that bar.

To appreciate petiti oners' problem, compare our case to Exxo n. That case involved a Maryland law proh ibiting pe- troleum producers from operating retail gas stati ons in the State. 437 U. S., at 119 –121, and n. 1. Because Maryland had no in-state petroleum producers, Exxon arg ued, the law's “divestiture requirements” fell “solely on interstate companies” and threatened to force some to “w ithdraw en- tirely from the Maryland market” or incur new costs to serve that market. Id., at 125 –127. All th is, the company said, amounted to a vi olati on of the dor mant Commerce Clause.

Th is Cour t found the a llegati ons in Exxon's complaint in- suffcient as a matter of law to demonstrate a substantia l burden on interstate commerce. Without questi on, Mary- land's law favored one business str ucture ( independent gas stati on retailers) over another (ver tica lly integrated produc- ti on and retail fr ms). Ib i d. The law a lso promised to in-

Opinion of Gorsuch, J.

crease retail gas pr ices for Maryland consumers, a llow ing some to questi on its “w isdom. ” Id., at 124, 128. But, the Cour t found, Exxon failed to plead facts leading, “either log i- ca lly or as a practica l matter, to [the] conclusi on that the State [was] discr iminating against interstate commerce. ” Id., at 125. The company failed to do so because, on its face, Maryland's law welcomed competiti on from interstate retail gas stati on chains that did not produce petroleum. Id., at 125 –126. And as far as anyone cou ld tell, the law's “practi- ca l effect” wasn't to protect in-state producers; it was to sh if t market share from one set of out-of-state fr ms (ver tica lly integrated businesses) to another (retail gas stati on fr ms).

Id., at 125, 127. Th is Cour t squarely re jected the view that th is predicted “ `change [in] the market str ucture' ” wou ld “ imper missibly burde[n] interstate commerce. ” Id., at 127.

If the dor mant Commerce Clause protects the “ interstate market . . . from proh ibitive or burdensome reg u lati ons, ” the Cour t held, it does not protect “par ticu lar . . . fr ms” or “par- ticu lar str ucture[s] or methods of operati on. ” Id., at 127– 128.

If Maryland's law did not impose a suffcient burden on interstate commerce to warrant fur ther scr utiny, the same must be said for Propositi on 12. In Exxo n, ver tica lly inte- grated businesses faced a choice: They cou ld divest their pro- ducti on capacities or w ithdraw from the loca l retail market.

Here, far mers and ver tica lly integrated processors have at least as much choice: They may provide a ll their pigs the space the law requires; they may segregate their operati ons to ensure pork products enter ing Ca lifor nia meet its stand- ards; or they may w ithdraw from that State's market. In Exxo n, the law posed a choice o n ly for out-of-state fr ms.

Here, the law presents a choice pr imar ily—but not exclu- sively—for out-of-state businesses; Ca lifor nia does have some pork producers affected by Propositi on 12. See App. to Pet. for Cer t. 205a. In Exxo n, as far as anyone cou ld tell, the law threatened only to sh if t market share from one set

Cite as: 598 U. S. 356 (2023) 385 Opinion of Gorsuch, J.

of out-of-state fr ms to another. Here, the pleadings a llow for the same possibility—that Ca lifor nia market share pre- vi ously en joyed by one group of proft-seek ing, out-of-state businesses (far mers who str ingently confne pigs and proces- sors who decline to segregate their products) w ill be re- placed by another (those who raise and trace Propositi on 12- compliant pork). In both cases, some may questi on the “w isdom” of a law that threatens to disr upt the existing practices of some industry par ticipants and may lead to h igher consumer pr ices. 437 U. S., at 128. But the dor- mant Commerce Clause does not protect a “par ticu lar str uc- ture or metho[d] of operati on. ” Id., at 127. That goes for pigs no less than gas stati ons.

Th ink of it another way. Petiti oners must plead facts “plausibly” suggesting a substantia l har m to interstate com- merce; facts that render that outcome a “specu lative” possi- bility are not enough. Bell Atl an t ic Co r p. v. Two mbly, 550

U. S. 544, 555, 557 (2007). In an effor t to meet th is standard,

petiti oners a llege facts suggesting that cer tain out-of-state far mers and processing fr ms w ill fnd it diffcu lt to comply w ith Propositi on 12 and may choose not to do so. See App. to Pet. for Cer t. 198a, 208a, 313a. But the complaint a lso acknowledges that many producers have a lready conver ted to some for m of group housing, even if they have not a ll yet met Propositi on 12's standards. Id., at 186a. From these facts, the complaint plausibly a lleges that so me out-of-state fr ms may face diffcu lty comply ing (or may choose not to comply) w ith Propositi on 12. But from a ll anyone can tell, o the r out-of-state competitors seek ing to enhance their own profts may choose to modify their existing operati ons or cre- ate new ones to fll the void. 3

3 Though it is unnecessary to adorn the point, we note that a number of smaller out-of-state pork producers have fled an amicus brief in this Court hailing the “opportunities” Proposition 12 affords them to compete with vertically integrated frms with “ `concentrated market power ' ” that are wedded to their existing processing practices. Brief for Small and

Opinion of Gorsuch, J.

Of course, as the complaint a lleges, a sh if t from one set of producti on methods to another promises some costs. Id., at 214a. But the complaint concedes that comply ing produc- ers w ill be able to “pas[s] a long ” at least “some” of their increased costs to consumers. Id., at 178a. And no one th inks that costs u ltimately bor ne by in-state consumers thanks to a law they adopted counts as a cog nizable har m under our dor mant Commerce Clause precedents. See Un i ted Haule rs, 550 U. S., at 345 ( holding that the dor mant Commerce Clause is not offended by h igher pr ices “ likely to fa ll upon the very people who voted for the [cha llenged] la[w] ”). Nor does the complaint a llege facts plausibly sug- gesting that out-of-state consumers indifferent to pork pro- ducti on methods w ill have to pick up the tab ( let a lone ex- plain how petiti oners might sue to vindicate their interests).

Instead, at least one declarati on incorporated by reference into the complaint avers that some out-of-state consumers w ill “not va lue these changes and w ill not pay an increased pr ice. ” App. to Pet. for Cer t. 335a; see a lso Br ief for Ag- r icu ltura l and Resource Economics Professors as Amici Cu- r i ae 15, 23 (suggesting neg lig ible effect on out-of-state pr ices for consumers not interested in Propositi on 12-compliant pork). Fur ther exper ience may y ield fur ther facts. But the facts pleaded in th is complaint merely a llege har m to

Independent Farming Businesses et al. as Amici Cur i ae 1, 12, 19 – 20.

Other amici have noted that even some large vertically integrated proc- essing frms have already begun to modify (or else have indicated their intention to modify) their operations to comply with Proposition 12. See Brief for Perdue Premium Meat Co., Inc., as Amicus Cur i ae 3 –7; see also Brief for Economic Research Organizations as Amici Cur i ae 16 –17 (recit- ing public statements from Hormel, Smithfeld, and Tyson). Another large processing frm, Carg ill, has boasted that, “ ` [b]efore we sold our pork business in 2015, we led the industry in removing gestation stalls to house preg nant sows. ' ” Id., at 16. Petitioner National Pork Producers Council lists Carg ill as an “allied industry compan[y]. ” National Pork Producers Council, Pork Alliance Program, https://nppc.org/get-involved / join-the-pork-alliance/.

Cite as: 598 U. S. 356 (2023) 387 Opinion of Gorsuch, J.

some producers' favored “methods of operati on. ” Exxo n, 437 U. S., at 127. A substantia l har m to interstate com- merce remains noth ing more than a specu lative possibility.

Ib i d.

The Chief Justice's concurrence in par t and dissent in par t (ca ll it “ the lead dissent”) offers a contrasting view.

Correctly, it beg ins by re jecting petiti oners' “a lmost pe r se” r u le against laws w ith extraterr itor ia l effects. Post, at 394.

And correctly, it disapproves reading P i ke to endorse a “freewheeling judicia l weigh ing of benefts and burdens. ” Post, at 395. But for a ll it gets r ight, in other respects it goes astray. In places, the lead dissent seems to advance a reading of P i ke that wou ld per mit judges to en join the enforcement of any state law restr icting the sa le of an ordi- nary consumer good if the law threatens an “ `excessive' ” “ har[m] to the interstate market” for that good. Post, at 397– 403. It is an approach that wou ld go much fur ther than our precedents per mit. So much fur ther, in fact, that it isn't clear what separates the lead dissent's approach from others it purpor ts to re ject.

Consider an example. Today, many States proh ibit the sa le of horsemeat for human consumpti on. See Cav el In t'l, Inc. v. Mad i gan, 500 F. 3d 551, 552 – 555 (CA7 2007). But these proh ibiti ons “ har[m] the interstate market” for horse- meat by deny ing outlets for its sa le. Not only that, they distor t the market for anima l products more genera lly by pressur ing horsemeat manufacturers to transiti on to differ- ent products, ones they can lawfu lly sell nati onw ide. Under the lead dissent's test, a ll it wou ld take is one complaint from an unhappy out-of-state producer and—presto—the Consti- tuti on wou ld protect the sa le of horsemeat. Just fnd a judge anywhere in the country who considers the burden to producers “ `excessive. ' ” Post, at 402. The same wou ld go for a ll manner of consumer products currently banned by some States but not by others—goods rang ing from fre-

Opinion of Gorsuch, J.

works, see, e. g., Mass. Gen. Laws Ann., ch. 148, § 39 (2020), to sing le-use plastic grocery bags, see, e. g., Me. Rev. Stat.

Ann., Tit. 38, §§ 1611(2)(A), (4) (2022). Rather than respect- ing federa lism, a r u le like that wou ld require any consumer good available for sa le in one State to be made available in every State. In the process, it wou ld essentia lly replicate under P i ke's banner petiti oners' “a lmost pe r se” r u le against state laws w ith extraterr itor ia l effects.

Seek ing a way around that problem, the lead dissent stum- bles into another. It suggests that the burdens of Proposi- ti on 12 are par ticu lar ly “substantia l” because Ca lifor nia's law “carr[ies] implicati ons for producers as far fung as Indiana and Nor th Carolina. ” Post, at 399 – 401. Why is that so?

Justice Kavanaugh's solo concurrence in par t and dissent in par t says the quiet par t a loud: Ca lifor nia's market is so lucrative that a lmost any in-state measure w ill infuence how out-of-state proft-maximizing fr ms choose to operate.

Post, at 405 – 407. But if that makes a ll the difference, it means voters in States w ith sma ller markets are constitu- ti ona lly entitled to greater author ity to reg u late in-state sa les than voters in States w ith larger markets. So much for the Constituti on's “fundamenta l pr inciple of equ al sover- eig nty among the States. ” Shelby Co un ty v. Ho lde r, 570

U. S. 529, 544 (2013) ( inter na l quotati on marks omitted).

The most str ik ing feature of both dissents, however, may be another one. They suggest that, in assessing a state law's burdens under P i ke, cour ts shou ld take into account not just economic har ms but a lso a ll manner of “der ivative har ms” to out-of-state interests. Post, at 398 – 399 (opini on of Roberts, C. J.). These include socia l costs that are “dif- fcu lt to quantify” such as ( in th is case) costs to the “nati ona l pig popu lati on, ” “anima l husbandry” traditi ons, and (again) “ industry practice. ” Post, at 399 – 402; see a lso post, at 405 – 407 (opini on of Kavanaugh, J.). But not even petiti oners read P i ke so boldly. Wh ile petiti oners arg ue that Propositi on 12 does not beneft pigs (as Ca lifor nia has asser ted), they have

Cite as: 598 U. S. 356 (2023) 389 Opinion of the Court

not asked th is Cour t (or any cour t) to treat putative har ms to out-of-state anima l welfare or other noneconomic interests as freestanding har ms cog nizable under the dor mant Com- merce Clause. Nor cou ld they have proceeded other w ise.

Our decisi ons have author ized claims a lleg ing “ burdens on commerce. ” Dav is, 553 U. S., at 353. They do not provide judges “a roving license” to reassess the w isdom of state leg islati on in light of any conceivable out-of-state interest, economic or other w ise. Un i ted Haule rs, 550 U. S., at 343. 4

Before the Constituti on's passage, Rhode Island imposed specia l taxes on impor ted “New-Engl and Rum”; Connecticut levied duties on goods “ brought into th[e] State, by Land or Water, from any of the United States of Ame r ica”; and Vir- g inia taxed “vessels coming w ith in th[e S]tate from any of the United States. ” An Act Lay ing Cer tain Duties of Ex- cise Upon Cer tain Ar ticles, Feb. 24, 1783 R. I. Acts and Re- solves 45; An Act for Levy ing and Collecting a Duty on Cer- tain Ar ticles of Goods, Wares and Merchandize Impor ted into th is State, by Land or Water, 1784 Conn. Acts and Laws

4 Both dissents seek to characterize today's decision as “fractured” in an effort to advance their own overbroad readings of P i ke and layer their own gloss on opinions they do not join. Post, at 403, 410 (opinion of Kava- naugh, J.); see also post at 395 – 397, 401– 403 (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” r ule against laws with extraterritorial effects. See Parts II and III, supra. When it comes to P i ke, a majority agrees that heartland P i ke cases seek to smoke out purposeful discrimination in state laws (as illumi- nated by those laws' practical effects) or seek to protect the instr umentali- ties of interstate transportation. See Part IV–A, supra. A majority also re jects any effort to expand P i ke's domain to cover cases like this one, some of us for reasons found in Part IV–B, others of us for reasons dis- cussed 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 judg ment affrming the decision below. A majority also sub- scribes to what follows in Part V.

Opinion of the Court

271; An Act to Amend the Act for Ascer taining Cer tain Taxes and Duties, and for Establish ing a Per manent Reve- nue (May 6, 1782), in 11 Statues at Large, Laws of Virg inia 70 (W. Hening ed. 1823).

Whether moved by th is exper ience or merely worr ied that more States might join the bandwagon, the Framers equipped Congress w ith considerable power to reg u late in- terstate commerce and preempt contrary state laws. See

U. S. Const., Ar t. I, § 8, cl. 3; Ar t. IV, § 2; see a lso Regan, 84

Mich. L. Rev., at 1114, n. 55; A. Abel, The Commerce Clause in the Constituti ona l Conventi on and in Contemporary Com- ment, 25 Minn. L. Rev. 432, 448 – 449 (1941). In the years since, th is Cour t has inferred an additi ona l judicia lly enforce- able r u le against cer tain, especia lly discr iminatory, state laws adopted even against the backdrop of congressi ona l si- lence. But “ `extreme cauti on' ” is warranted before a cour t deploys th is implied author ity. Tracy, 519 U. S., at 310 (quoting No r thw est Airl ines, Inc. v. M inneso ta, 322 U. S. 292, 302 (1944) (Black, J., concurr ing)). Preventing state offcia ls from enforcing a democratica lly adopted state law in the name of the dor mant Commerce Clause is a matter of “ex- treme delicacy, ” someth ing cour ts shou ld do only “where the infracti on is clear. ” Co nw ay v. Tay l o r's Execu t o r, 1 Black 603, 634 (1862).

Petiti oners wou ld have us cast aside cauti on for boldness.

They have failed—repeatedly—to persuade Congress to use its express Commerce Clause author ity to adopt a unifor m r u le for pork producti on. And they disavow any reliance on th is Cour t's core dor mant Commerce Clause teach ings fo- cused on discr iminatory state leg islati on. Instead, petiti on- ers invite us to endorse two new theor ies of implied judicia l power. They wou ld have us recog nize an “a lmost pe r se” r u le against the enforcement of state laws that have “extra- terr itor ia l effects”— even though th is Cour t has recog nized since G ibbo n s that vir tua lly a ll state laws create r ipple ef- fects beyond their borders. Alter natively, they wou ld have

Cite as: 598 U. S. 356 (2023) 391 Sotomayor, J., concurring in part

us prevent a State from reg u lating the sa le of an ordinary consumer good w ith in its own borders on nondiscr iminatory ter ms— even though the P i ke line of cases they invoke has never before y ielded such a resu lt. Like the cour ts that faced th is case before us, we decline both of petiti oners' in- cauti ous invitati ons.

The judg ment of the Ninth Circuit is A ffr med.

Justice Sotomayor, w ith whom Justice Kagan joins, concurr ing in par t. I join a ll but Par ts IV–B and IV–D of Justice Gorsuch's opini on. Given the fractured nature of Par t IV, I wr ite sep- arately to clar ify my understanding of why petiti oners' P i ke claim fails. In shor t, I vote to affr m the judg ment because petiti oners fail to a llege a substantia l burden on interstate commerce as required by P i ke, not because of any fundamen- ta l rework ing of that doctr ine.

* * * In P i ke v. Br uce Church, Inc., 397 U. S. 137 (1970), the C o u r t d i s t i l l e d a g e n e r a l p r i n c i p l e f r o m i t s p r i o r c a s e s .

“Where [a] statute reg u lates even-handedly to effectuate a leg itimate loca l public interest, and its effects on interstate commerce are only incidenta l, it w ill be upheld unless the burden imposed on such commerce is clear ly excessive in re- lati on to the putative loca l benefts. ” Id., at 142. Fur ther, “ the extent of the burden that w ill be tolerated w ill of course depend on the nature of the loca l interest involved, and on whether it cou ld be promoted as well w ith a lesser impact on interstate activities. ” Ib i d.

As the Cour t's opini on here explains, P i ke's ba lancing and tailor ing pr inciples are most frequently deployed to detect the presence or absence of latent economic protecti onism.

See an te, at 377– 380. That is no surpr ise. Warding off state discr iminati on against interstate commerce is at the

Sotomayor, J., concurring in part

hear t of our dor mant Commerce Clause jur ispr udence. See an te, at 369, 371– 373, 377– 378.

As the Cour t's opini on a lso acknowledges, however, the Cour t has “genera lly le[f t] the cour troom door open” to claims premised on “even nondiscr iminatory burdens. ” De- par tmen t o f Rev enue o f Ky. v. Dav is, 553 U. S. 328, 353 (2008); see an te, at 379. Indeed, “a sma ll number ” of th is Cour t's cases in the P i ke line “ have inva lidated state laws . . . that appear to have been genuinely nondiscr iminatory” in nature. Gene ral M o t o rs Co r p. v. Tracy, 519 U. S. 278, 298,

n. 12 (1997); see an te, at 379. Of ten, such cases have ad-

dressed state laws that impose burdens on the ar ter ies of commerce, on “ tr ucks, trains, and the like. ” Ib i d., n. 2.

Yet, there is at least one excepti on to that traditi on. See Ed gar v. MITE Co r p., 457 U. S. 624, 643 – 646 (1982) ( inva li- dating a nondiscr iminatory state law that reg u lated tender offers to shareholders). P i ke claims that do not a llege discr iminati on or a burden on an ar tery of commerce are fur ther from P i ke's core. As The Chief Justice recog nizes, however, the Cour t today does not shut the door on a ll such P i ke claims. See an te, at 379 – 380, and n. 2; post, at 395 – 396. Thus, petiti oners' fail- ure to a llege discr iminati on or an impact on the instr umen- ta lities of commerce does not doom their P i ke claim.

Nor does a major ity of the Cour t endorse the view that judges are not up to the task that P i ke prescr ibes. Justice Gorsuch, for a plura lity, concludes that petiti oners' P i ke claim fails because cour ts are incapable of ba lancing eco- nomic burdens against noneconomic benefts. See an te, at 380 – 383. I do not join that por ti on of Justice Gorsuch's opini on. I acknowledge that the inquiry is diffcu lt and deli- cate, and federa l cour ts are well advised to approach the matter w ith cauti on. See an te, at 390. Yet, I agree w ith The Chief Justice that cour ts genera lly are able to weigh disparate burdens and benefts against each other, and that they are ca lled on to do so in other areas of the law w ith

Cite as: 598 U. S. 356 (2023) 393 Barrett, J., concurring in part

some frequency. See post, at 396 – 397. The means-ends tailor ing ana lysis that P i ke incorporates is likew ise familiar to cour ts and does not raise the asser ted incommensurability problems that trouble Justice Gorsuch.

In my view, and as Justice Gorsuch concludes for a sepa- rate plura lity of the Cour t, petiti oners' P i ke claim fails for a much narrower reason. Reading petiti oners' a llegati ons in light of the Cour t's decisi on in Exxo n Co r p. v. Gov e r no r o f Mar y l and, 437 U. S. 117 (1978), the complaint fails to a llege a substantia l burden on interstate commerce. See an te, at 383 – 387. Alleg ing a substantia l burden on interstate com- merce is a threshold requirement that plaintiffs must satisfy before cour ts need even engage in P i ke's ba lancing and tai- lor ing ana lyses. Because petiti oners have not done so, they fail to state a P i ke claim.

Justice Barret t, concurr ing in par t. A state law that burdens interstate commerce in clear ex- cess of its putative loca l benefts funks P i ke ba lancing. P i ke v. Br uce Church, Inc., 397 U. S. 137, 142 (1970). In most cases, P i ke's “genera l r u le” refects a commonsense pr inciple: Where there's smoke, there's fre. Ib i d. Under our dor mant Commerce Clause jur ispr udence, one State may not discr iminate against another 's producers or consumers. A law whose burdens fa ll incommensurately and inexplicably on out-of-state interests may be doing just that.

But to weigh benefts and burdens, it is axi omatic that both must be judicia lly cog nizable and comparable. See Depar t- men t o f Rev enue o f Ky. v. Dav is, 553 U. S. 328, 354 – 355 (2008). I agree w ith Justice Gorsuch that the benefts and burdens of Propositi on 12 are incommensurable. Ca li- for nia's interest in eliminating a llegedly inhumane products from its markets cannot be weighed on a sca le opposite dol- lars and cents—at least not w ithout second-g uessing the mora l judg ments of Ca lifor nia voters or mak ing the k ind of policy decisi ons reserved for politicians. An te, at 380 – 383;

Opinion of Roberts, C. J.

Dav is, 553 U. S., at 360 (Sca lia, J., concurr ing in par t). None of our P i ke precedents requires us to attempt such a feat.

That said, I disagree w ith my colleag ues who wou ld hold that petiti oners have failed to a llege a substantia l burden on interstate commerce. An te, at 383 – 387; an te, at 393 (So- tomayor, J., concurr ing in par t). The complaint plausibly a lleges that Propositi on 12's costs are pervasive, burden- some, and w ill be felt pr imar ily ( but not exclusively) outside Ca lifor nia. See post, at 399 – 400 (Roberts, C. J., concurr ing in par t and dissenting in par t). For th is reason, I do not join Par t IV– C of Justice Gorsuch's opini on. If the bur- dens and benefts were capable of judicia l ba lancing, I wou ld per mit petiti oners to proceed w ith their P i ke claim.

Chief Justice Roberts, w ith whom Justice Alito, Justice Kavanaugh, and Justice Jackson join, concurr ing in par t and dissenting in par t. I agree w ith the Cour t's view in its thoughtfu l opini on that many of the leading cases invok ing the dor mant Commerce Clause are proper ly read as inva lidating statutes that pro- moted economic protecti onism. See an te, at 371– 373. I a lso agree w ith the Cour t's conclusi on that our precedent does not suppor t a pe r se r u le against state laws w ith “extra- terr itor ia l” effects. See an te, at 373 – 376. But I cannot agree w ith the approach adopted by some of my colleag ues to ana lyzing petiti oners' claim based on P i ke v. Br uce Church, Inc., 397 U. S. 137, 142 (1970). See an te, at 377– 380 (major ity opini on); an te, at 380 – 389 (opini on of Gorsuch, J.); an te, at 393 (Sotomayor , J., concurr ing in par t); an te, at 393 – 394 (Barret t, J., concurr ing in par t).

P i ke provides that nondiscr iminatory state reg u lati ons are va lid under the Commerce Clause “unless the burden im- posed on [interstate] commerce is clear ly excessive in rela- ti on to the putative loca l benefts. ” 397 U. S., at 142. A major ity of the Cour t th inks that petiti oners' complaint does not make for “an auspici ous star t” on that claim. An te, at

Cite as: 598 U. S. 356 (2023) 395 Opinion of Roberts, C. J.

380. In my view, that is through no fau lt of their own. The

Ninth Circuit misapplied our existing P i ke jur ispr udence in eva luating petiti oners' a llegati ons. I wou ld fnd that peti- ti oners have plausibly a lleged a substantia l burden against interstate commerce, and wou ld therefore vacate the judg- ment and remand the case for the cour t below to decide whether petiti oners have stated a claim under P i ke.

The Ninth Circuit stated that “ [w]h ile the dor mant Com- merce Clause is not yet a dead letter, it is moving in that directi on. ” 6 F. 4th 1021, 1033 (2021). Today's major ity does not pu ll the plug. For good reason: Although P i ke is susceptible to misapplicati on as a freewheeling judicia l weigh ing of benefts and burdens, it a lso refects the basic concer n of our Commerce Clause jur ispr udence that there be “free pr ivate trade in the nati ona l marketplace. ” Gene ral M o t o rs Co r p. v. Tracy, 519 U. S. 278, 287 (1997) (quoting Reev es, Inc. v. Stake, 447 U. S. 429, 437 (1980)); see a lso Hun t

v. Wash ing t o n Sta te Apple Adv e r t ising Co mm'n, 432 U. S.

333, 350 (1977) (P i ke protects “a nati ona l `common market' ”).

“Our system, fostered by the Commerce Clause, is that every far mer and every craf tsman sha ll be encouraged to produce by the cer tainty that he w ill have free access to every mar- ket in the Nati on, that no home embargoes w ill w ithhold h is expor ts, and no foreig n state w ill by customs duties or reg u lati ons exclude them. ” H. P. Hood & So n s, Inc. v. D u M o nd, 336 U. S. 525, 539 (1949).

The major ity's discussi on of our P i ke jur ispr udence h igh- lights two types of cases: those involving discr iminatory state laws and those implicating the “ instr umenta lities of in- terstate transpor tati on. ” An te, at 379, n. 2. But P i ke has not been so narrowly typecast. As a major ity of the Cour t acknowledges, “we genera lly leave the cour troom door open to plaintiffs invok ing the r u le in P i ke, that even nondiscr imi- natory burdens on commerce may be str uck down on a show-

Opinion of Roberts, C. J.

ing that those burdens clear ly outweigh the benefts of a state or loca l practice. ” Depar tmen t o f Rev enue o f Ky. v.

Dav is, 553 U. S. 328, 353 (2008); see a lso Un i ted Haule rs Assn., Inc. v. O ne i da-He rkime r So l i d Waste Man agemen t Au tho r i ty, 550 U. S. 330, 346 (2007) (plura lity opini on) (P i ke applies to “a nondiscr iminatory statute like th is one”). Nor have our cases applied P i ke only where a State reg u lates the instr umenta lities of transpor tati on. P i ke itself addressed an Ar izona law reg u lating canta loupe packag ing. See 397 U. S., at 138. And we have since applied P i ke to inva lidate nondis- cr iminatory state laws that do not concer n transpor tati on.

Ed gar v. MITE Co r p., 457 U. S. 624, 643 – 646 (1982). As a major ity of the Cour t agrees, P i ke extends beyond laws either concer ning discr iminati on or gover ning interstate transpor tati on. See an te, at 392 (opini on of Sotomayor, J.); post, at 403 (Kavanaugh, J., concurr ing in par t and dissent- ing in par t).

Speak ing for three Members of the Cour t, Justice Gor- such objects that ba lancing competing interests under P i ke is simply an impossible judicia l task. See an te, at 380 – 383. I cer tainly appreciate the concer n, see Un i ted Haule rs, 550

U. S., at 343, 347, but sometimes there is no avoiding the

n e e d t o w e i g h s e e m i n g l y i n c o m m e n s u r a b l e v a l u e s . S e e,

e. g., Schne i de r v. Sta te (To w n o f Ir v ing t o n), 308 U. S. 147,

162 (1939) (weigh ing “ the purpose to keep the streets clean and of good appearance” against the “ the constituti ona l pro- tecti on of the freedom of speech and press”); Win st o n v. Lee, 470 U. S. 753, 760 (1985) (“ The reasonableness” under the Four th Amendment “of surg ica l intr usi ons beneath the sk in depends on a case-by-case approach, in wh ich the individua l's interests in pr ivacy and secur ity are weighed against soci- ety's interests in conducting the procedure. ”); Add ing t o n v.

Texas, 441 U. S. 418, 425 (1979) (“In consider ing what stand- ard shou ld gover n in a civil commitment proceeding, we must assess both the extent of the individua l's interest in not being involuntar ily confned indefnitely and the state's interest in

Cite as: 598 U. S. 356 (2023) 397 Opinion of Roberts, C. J.

committing the emoti ona lly disturbed under a par ticu lar standard of proof. ”). Here too, a major ity of the Cour t agrees that it is possible to ba lance benefts and burdens under the approach set for th in P i ke. See an te, at 392 – 393 (opini on of Sotomayor, J.); post, at 403 (opini on of Kavanaugh, J.).

Th is case comes before us on a Federa l Ru le of Civil Proce- dure 12( b)(6) moti on to dismiss, and in my view the cour t below erred in how it ana lyzed petiti oners' a llegati ons under P i ke. The Ninth Circuit reasoned that “ [f ]or dor mant Com- merce Clause purposes, laws that increase compliance costs, w ithout more, do not constitute a sig nifcant burden on inter- state commerce. ” 6 F. 4th, at 1032. The panel then dis- missed petiti oners' claim under P i ke by concluding that the complaint a lleged only an increase in compliance costs due to Propositi on 12. 6 F. 4th, at 1033. But, as I read it, the complaint a lleges more than simply an increase in “compli- ance costs, ” unless such costs are defned to include a ll the fa llout from a cha llenged reg u latory reg ime. Petiti oners identify broader, market-w ide co n sequences of compliance— economic har ms that our precedents have recog nized can amount to a burden on interstate commerce. I wou ld there- fore fnd that petiti oners have stated a substantia l burden against interstate commerce, vacate the judg ment below, and remand th is case for the Ninth Circuit to consider whether petiti oners have plausibly claimed that the burden a lleged outweighs any “putative loca l benefts” under P i ke. 397

U. S., at 142.

Our precedents have long disting uished the costs of com- ply ing w ith a g iven state reg u lati on from other economic har ms to the interstate market. Bibb v. Nav ajo Fre i gh t Lines, Inc., 359 U. S. 520 (1959), illustrates the point. In that case, we considered an Illinois law requir ing that tr ucks and trailers use a par ticu lar k ind of mudg uard. The “cost

Opinion of Roberts, C. J.

of insta lling ” the mudg uards was “$30 or more per veh icle, ” amounting to “$4,500 to $45,840” for the tr uck ing companies at issue. Id., at 525. But beyond documenting those direct costs of comply ing w ith the Illinois law, we a lso noted other der ivative har ms fow ing from the reg u lati on. The mud- g uard r u le threatened “sig nifcant delay in an operati on where prompt movement may be of the essence. ” Id., at

527. Also, chang ing mudg uard types when crossing into Il-

linois from a State w ith a different standard wou ld require “ two to four hours of labor ” and cou ld prove “exceeding ly dangerous. ” Ib i d. We concluded that “ [c]ost taken into considerati on” together w ith those “o the r factors” cou ld con- stitute a burden on interstate commerce. Id., at 526 (em- phasis added). Subsequent cases followed Bibb's log ic by ana lyzing economic impact to the interstate market sepa- rately from immediate costs of compliance. See Kassel v.

Co n so l i da ted Fre i gh tw ays Co r p. o f Del., 450 U. S. 662, 674 (1981) (plura lity opini on) (separating “ increas[ed] . . . costs” from the fact that the cha llenged “ law may aggravate . . . the problem of h ighway accidents” in descr ibing the burden on interstate commerce); Raymo nd M o t o r Tran sp., Inc. v.

Rice, 434 U. S. 429, 445, and n. 21 (1978) (ana lyzing an in- crease in “cost” independently of other consequentia l effects, such as “slow[ing] the movement of goods”). P i ke itself did not confate har ms to the interstate market w ith compliance costs. In P i ke, we ana lyzed an Ar izona law requir ing that canta loupes grown in the State be packed pr i or to sh ipment across state lines. 397 U. S., at 138. We noted repeatedly that the reg u lati on wou ld require the ap- pellee to constr uct an unneeded pack ing facility in Ar izona at a cost of $200,000. Id., at 140, 144, 145. But we consid- ered that cost together w ith the “nature” of a reg u lati on “requir ing business operati ons to be perfor med in the home State. ” Id., at 145. The Cour t in P i ke found both compli- ance costs and consequentia l market har ms cog nizable in de- ter mining whether the law at issue imper missibly burdened interstate commerce.

Cite as: 598 U. S. 356 (2023) 399 Opinion of Roberts, C. J.

The der ivative har ms we have long considered in th is con- text are in no sense “noneconomic. ” An te, at 389 (opini on of Gorsuch, J.). Reg u lati ons that “aggravate . . . the prob- lem of h ighway accidents, ” Kassel, 450 U. S., at 674, or “slow the movement of goods, ” Rice, 434 U. S., at 445, impose eco- nomic burdens, even if those burdens may be diffcu lt to quantify and may not ar ise immediately. Our cases provide no license to cha lk up ev e r y economic har m—no matter how der ivative—to a mere cost of compliance.

Nor can the foregoing cases be dismissed because they either involved the instr umenta lities of transpor tati on or a state law bor n of discr iminatory purpose. As discussed above, we have applied P i ke to state laws that neither con- cer ned transpor tati on nor discr iminated against commerce.

See Ed gar, 457 U. S., at 643 – 646. The P i ke ba lance may well come out differently when it comes to interstate trans- por tati on, an area presenting a strong interest in “nati ona l unifor mity. ” Tracy, 519 U. S., at 298, n. 12. But the error below does not concer n a par ticu lar ba lancing of interests under P i ke; it concer ns how to ana lyze the burden on inter- state commerce in the frst place.

As in our pr i or cases, petiti oners here a llege both compli- ance costs and consequentia l har ms to the interstate market.

With respect to compliance costs, petiti oners a llege that Propositi on 12 demands sig nifcant capita l expenditures for far mers who w ish to sell into Ca lifor nia. “Producers . . . w ill need to spend” between $290 and $348 milli on “of addi- ti ona l capita l in order to reconstr uct their sow housing and overcome the productivity loss that Propositi on 12 imposes. ” App. to Pet. for Cer t. 214a. All told, compliance w ill “ in- crease producti on costs per pig by over $13 dollars per head, a 9.2% cost increase at the far m level. ” Ib i d.

Separate and apar t from those costs, petiti oners asser t har ms to the interstate market itself. The complaint a lleges that the interstate pork market is so interconnected that pro-

Opinion of Roberts, C. J.

ducers w ill be “forced to comply” w ith Propositi on 12, “even though some or even most of the cuts from a hog are sold in other States. ” Id., at 213a, 239a. Propositi on 12 may not expressly reg u late far mers operating out of state. But due to the nature of the nati ona l pork market, Ca lifor nia has enacted r u les that carry implicati ons for producers as far fung as Indiana and Nor th Carolina, whether or not they sell in Ca lifor nia. The panel below acknowledged petiti on- ers' a llegati on that, “ [a]s a practica l matter, g iven the inter- connected nature of the nati onw ide pork industry, a ll or most hog far mers w ill be forced to comply w ith Ca lifor nia require- ments. ” 6 F. 4th, at 1028.

We have found such sweeping extraterr itor ia l effects, even if not considered as a pe r se inva lidati on, to be per tinent in apply ing P i ke. In Ed gar, we assessed the constituti ona lity of an Illinois corporate takeover statute that author ized the secretary of state to scr utinize tender offers, even for trans- acti ons occurr ing wholly beyond the State's borders. As the major ity explains, only a plura lity of the Cour t in Ed gar concluded that the Illinois statute constituted a pe r se vi ola- ti on of the dor mant Commerce Clause. See an te, at 376,

n. 1. But a major ity in Ed gar ana lyzed those same extrater-

r itor ia l effects under our approach in P i ke, concluding that the “nati onw ide reach” of Illinois's law constituted an “obvi- ous burden . . . on interstate commerce. ” 457 U. S., at 643.

The Ninth Circuit did not consider whether, by effectively requir ing compliance by far mers who do not even w ish to sh ip their product into Ca lifor nia, Propositi on 12 has a “nati onw ide reach” similar to the reg u lati on at issue in Ed gar.

The complaint fur ther a lleges other har ms that cannot fair ly be character ized as mere costs of compliance but that the panel below seems to have treated as such. Because of Propositi on 12's square footage requirements, far ms w ill be compelled to adopt group housing, wh ich is likely to produce “worse hea lth outcome[s] ” and “sprea[d] pathogens and dis-

Cite as: 598 U. S. 356 (2023) 401 Opinion of Roberts, C. J.

ease. ” App. to Pet. for Cer t. 229a. Such housing changes w ill a lso “upen[d] generati ons of anima l husbandry, training, and knowledge. ” Id., at 211a. And “ [ b]y preventing the use of breeding sta lls dur ing the 30 to 40 day per i od between weaning and confr mati on of preg nancy, Propositi on 12 puts sows at greater r isk of in jury and stress dur ing the vu lnera- ble stages of breeding and gestati on. ” Id., at 223a. These consequentia l threats to anima l welfare and industry prac- tice are diffcu lt to quantify and are not susceptible to catego- r izati on as mere costs of compliance.

Wr iting for a plura lity of the Cour t, Justice Gorsuch relies on th is Cour t's decisi on in Exxo n Co r p. v. Gov e r no r o f Mar y l and, 437 U. S. 117 (1978), to conclude that petiti oners' complaint does not plead a substantia l burden against inter- state commerce. See an te, at 383 – 387; see a lso an te, at 393 (opini on of Sotomayor, J.) (a lso rely ing on Exxo n). In Exxo n, petroleum producers sued af ter Maryland proh ibited their sa le of retail gas w ith in the State. 437 U. S., at 119.

The Cour t concluded that “ interstate commerce is not sub- jected to an imper missible burden simply because an oth- er w ise va lid reg u lati on causes some business[es] to sh if t from one interstate supplier to another. ” Id., at 127. Fair enough. But the complaint before us pleads facts going far beyond the a llegati ons in Exxo n. The producers in Exxo n operated w ith in Maryland and w ished to continue doing so.

By contrast, petiti oners here a llege that Propositi on 12 w ill force compliance on far mers who do not w ish to sell into the Ca lifor nia market, exacerbate hea lth issues in the nati ona l pig popu lati on, and undercut established operati ona l prac- tices. In my view, these a llegati ons amount to economic har ms against “ the interstate market”—not just “par ticu lar interstate fr ms, ” ib i d.—such that they constitute a substan- tia l burden under P i ke. At the very least, the har ms a l- leged by petiti oners are categor ica lly different from the cost of insta lling $30 mudg uards, Bibb, 359 U. S., at 525, or of

Opinion of Roberts, C. J.

constr ucting a $200,000 canta loupe pack ing facility, P i ke, 397

U. S., at 140.

Justice Gorsuch asks what separates my approach from the pe r se extraterr itor ia lity r u le I re ject. An te, at 387. It is the difference between mere cross-border effects and broad impact requir ing, in th is case, compliance even by pro- ducers who do not w ish to sell in the reg u lated market.

And even then, we only inva lidate a reg u lati on if that burden proves “clear ly excessive in relati on to the putative loca l benefts. ” P i ke, 397 U. S., at 142. Adher ing to that estab- lished approach in th is case wou ld not conver t the inquiry into a pe r se r u le against extraterr itor ia l reg u lati on.

Rather than ana lyze petiti oners' a lleged har ms to the in- t e r s t a t e m a r k e t o n t h e i r o w n t e r m s , t h e N i n t h C i r c u i t reasoned that the “cr ux” of the complaint is “ the cost of compliance w ith Propositi on 12. ” 6 F. 4th, at 1033. Such “cost increases, ” the panel below concluded, “do not qua lify as a substantia l burden to interstate commerce. ” Ib i d.

Those statements ig nore the industry-w ide har ms discussed above.

The panel below itself recog nized that petiti oners “plausi- bly a lleged that Propositi on 12 w ill have dramatic upstream effects and require pervasive changes to the pork producti on industry nati onw ide. ” Ib i d. Yet it never theless reduced the myr iad har ms detailed by petiti oners in their complaint to so-ca lled “compliance costs” and wrote them off as inde- pendently insuffcient to state a claim under P i ke. Our precedents do not suppor t such an approach. A major ity of the Cour t agrees that —were it possible to ba lance benefts and burdens in th is context —petiti oners have plausibly stated a substantia l burden against interstate commerce.

See an te, at 394 (opini on of Barret t, J.) (“ The complaint plausibly a lleges that Propositi on 12's costs are pervasive, burdensome, and w ill be felt pr imar ily ( but not exclusively) outside Ca lifor nia. ”).

Cite as: 598 U. S. 356 (2023) 403 Opinion of Kavanaugh, J.

* * * In my view, petiti oners plausibly a llege a substantia l bur- den against interstate commerce. I wou ld therefore remand the case for the Ninth Circuit to decide whether it is plausi- ble that the “ burden . . . is clear ly excessive in relati on to the putative loca l benefts. ” P i ke, 397 U. S., at 142.

Justice Kavanaugh, concurr ing in par t and dissenting in par t.

In today's fractured decisi on, six Justices of th is Cour t af- fr matively retain the longstanding P i ke ba lancing test for ana lyzing dor mant Commerce Clause cha llenges to state eco- nomic reg u lati ons. An te, at 391– 392 (Sotomayor, J., joined by Kagan, J., concurr ing in par t); an te, at 395 – 396 (Rob- erts, C. J., joined by Alito, Kavanaugh, and Jackson, JJ., concurr ing in par t and dissenting in par t); see P i ke v. Br uce Church, Inc., 397 U. S. 137 (1970). Although Par ts IV–B and IV–D of Justice Gorsuch's opini on wou ld essentia lly overr u le the P i ke ba lancing test, those subsecti ons are not controlling precedent, as I understand it.

But Par t IV– C of Justice Gorsuch's opini on is control- ling precedent for purposes of the Cour t's judg ment as to the plaintiffs' P i ke claim. There, a four-Justice plura lity of the Cour t applies P i ke and re jects the plaintiffs' dor mant Commerce Clause cha llenge under P i ke. The plura lity rea- sons that the plaintiffs' complaint did not suffciently a llege that the Ca lifor nia law at issue here imposed a substantia l burden on interstate commerce under P i ke. I respectfu lly disagree w ith that conclusi on for the reasons well stated in The Chief Justice's separate opini on. 1 I add th is opini on to point out that state economic reg u la- ti ons like Ca lifor nia's Propositi on 12 may raise questi ons not

1 The Court also unanimously re jects plaintiffs' separate claim under Healy v. Beer Inst i tu te, 491 U. S. 324 (1989).

Opinion of Kavanaugh, J.

only under the Commerce Clause, but a lso under the Impor t- Expor t Clause, the Pr ivileges and Immunities Clause, and the Fu ll Faith and Credit Clause.

In the 1780s, the Framers in Ph iladelph ia and the people of the United States discarded the Ar ticles of Confederati on and adopted a new Constituti on. They did so in order to, among other th ings, create a nati ona l economic market and overcome state restr icti ons on free trade—and thereby pro- mote the genera l welfare. By the summer of 1787, when the delegates met in Ph iladelph ia, state interference w ith interstate commerce was cutting off the lifeblood of the Na- ti on. See Tennessee Wine and Sp ir i ts Re tai le rs Assn. v.

Tho mas, 588 U. S. –––, ––– (2019). For the delegates, there- fore, “removing state trade barr iers was a pr incipa l reason for the adopti on of the Constituti on. ” Ib i d. In the state ratify ing conventi ons, moreover, “foster ing free trade among the States was prominently cited as a reason for ratifcati on. ” Id., at –––.

The Constituti on craf ted by the Framers contains severa l provisi ons protecting free trade among the States. The Constituti on's protecti on of free trade among the States has resu lted in an extraordinary 234-year record of progress: It has facilitated robust economic activity w ith in the United States and has helped generate remarkable (a lbeit at times uneven) economic prosper ity and growth in Amer ica relative to the other nati ons of the wor ld.

Th is case involves the Amer ican pork industry, wh ich today is a $20 billi on-plus industry that generates hundreds of thousands of Amer ican jobs and serves milli ons of Amer i- can consumers. Impor tantly for th is case, the vast major ity of pig far ms are located in States other than Ca lifor nia— such as Iowa, Minnesota, Illinois, Indiana, and Nor th Caro- lina. And the vast major ity of pork is likew ise produced in States other than Ca lifor nia.

Cite as: 598 U. S. 356 (2023) 405 Opinion of Kavanaugh, J.

In 2018, Ca lifor nia voters nonetheless passed a ba llot ini- tiative, Propositi on 12, that not only reg u lates pig far ming and pork producti on in Ca lifor nia, but a lso in effect reg u lates pig far ming and pork producti on thro ugho u t the Un i ted Sta tes. Under Propositi on 12, a ll pork sold to consumers in Ca lifor nia must be der ived from pigs raised in compliance w ith Ca lifor nia's str ict standards for pig far ming, including Ca lifor nia's minimum square footage of space required for housing individua l pigs. By its ter ms, Propositi on 12 ap- plies to pigs raised and pork produced o u tsi de Cal i fo r n i a.

Ca lifor nia's requirements for pig far ms and pork produc- ti on depar t sig nifcantly from common agr icu ltura l practices that are lawfu l in major pig-far ming and pork-producing States such as Iowa, Minnesota, Illinois, Indiana, and Nor th Carolina. See Br ief for Indiana et a l. as Amici Cur i ae 24 –

32. Moreover, according to var i ous amici, some of the sci-

entifc literature suggests that Ca lifor nia's requirements cou ld worsen anima l hea lth and welfare. See, e. g., Br ief for Amer ican Associati on of Sw ine Veter inar ians as Amicus Cu- r i ae 4 –19; Br ief for State Pork Producers Associati on of Iowa et a l. as Amici Cur i ae 25 – 34. Regardless of whether the amici are correct on that point, it is evident that absent Ca lifor nia's Propositi on 12, relatively few pig far mers and pork producers in the United States wou ld follow the prac- tices that Ca lifor nia now demands. Yet Amer ican pig far m- ers and pork producers have little choice but to comply w ith Ca lifor nia's reg u latory dictates. It wou ld be proh ibitively expensive and practica lly a ll but impossible for pig far mers and pork producers to segregate individua l pigs based on their u ltimate marketplace destinati on in Ca lifor nia or else- where. And Ca lifor nia's 13-percent share of the consumer pork market makes it economica lly infeasible for many pig far mers and pork producers to exit the Ca lifor nia market.

Ca lifor nia's required changes to pig-far ming and pork- producti on practices throughout the United States w ill cost Amer ican far mers and pork producers hundreds of milli ons

Opinion of Kavanaugh, J.

( if not billi ons) of dollars. And those costs for pig far mers and pork producers w ill be passed on, in many cases, to Amer ican consumers of pork via h igher pork pr ices nati on- w ide. The increased costs may a lso resu lt in lower wages and reduced benefts (or layoffs) for the Amer ican workers who work on pig far ms and in meatpack ing plants. See gen- era lly Br ief for Indiana et a l. as Amici Cur i ae 29 – 32; Br ief for Nor th Carolina Chamber Lega l Institute et a l. as Amici Cur i ae 9 –13.2 In shor t, through Propositi on 12, Ca lifor nia is forcing mas- sive changes to pig-far ming and pork-producti on practices t h r o u g h o u t t h e Un i t e d S t a t e s . P r o p o s i t i o n 1 2 t h e r e f o r e substantia lly burdens the interstate pork market. See an te, at 399 – 403 (opini on of Roberts, C. J.).

Under the Constituti on, Congress cou ld enact a nati ona l law imposing minimum space requirements or other reg u la- ti ons on pig far ms involved in the interstate pork market.

In the absence of acti on by Congress, each State may of course adopt hea lth and safety reg u lati ons for products sold in tha t Sta te. And each State may reg u late as it sees ft w ith respect to far ming, manufactur ing, and producti on practices in tha t Sta te. Through Propositi on 12, however, Ca lifor nia has tr ied someth ing quite different and unusua l.

It has attempted, in essence, to unilatera lly impose its mora l and policy preferences for pig far ming and pork producti on on the rest of the Nati on. It has sought to deny market access to out-of-state pork producers unless their far ming and producti on practices in those other States comply w ith C a l i f o r n i a 's d i c t a t e s . T h e S t a t e h a s a g g r e s s i v e l y p r o -

2 The majority opinion dismisses this case as not presenting a “weighty” issue. An te, at 364. That phrasing is misplaced. This case presents a weighty constitutional question, as the Framers surely would have recog- nized. And it is important for the American workers, farmers, and con- sumers who will be sig nifcantly affected by the outcome of today's decision.

Cite as: 598 U. S. 356 (2023) 407 Opinion of Kavanaugh, J.

pounded a “Ca lifor nia knows best” economic ph ilosophy— where Ca lifor nia in effect seeks to reg u late pig far ming and pork producti on in all of the United States. Ca lifor nia's ap- proach under mines federa lism and the author ity of individ- ua l States by forcing individua ls and businesses in one State to conduct their far ming, manufactur ing, and producti on practices in a manner required by the laws of a d i ffe ren t State.

Notably, future state laws of th is k ind might not be con- fned to the pork industry. As the amici br ief of 26 States points out, what if a state law proh ibits the sa le of fr uit picked by noncitizens who are unlawfu lly in the country?

Br ief for Indiana et a l. as Amici Cur i ae 33. What if a state law proh ibits the sa le of goods produced by workers paid less than $20 per hour? Or as those States suggest, what if a state law proh ibits “ the retail sa le of goods from producers that do not pay for employees' bir th control or abor ti ons” (or a lter natively, that do pay for employees' bir th control or abor ti ons)? Ib i d.

If upheld against a ll constituti ona l cha llenges, Ca lifor nia's novel and far-reach ing reg u lati on cou ld provide a bluepr int for other States. Ca lifor nia's law thus may foreshadow a n e w e r a w h e r e S t a t e s s h u t t e r t h e i r m a r k e t s t o g o o d s produced in a way that offends their mora l or policy prefer- ences—and in doing so, effectively force other States to reg- u late in accordance w ith those idi osyncratic state demands.

That is not the Constituti on the Framers adopted in Ph ila- delph ia in 1787.3

3 The portions of Justice Gorsuch's opinion that speak for only three Justices (Parts IV–B and IV–D) refer to The Chief Justice's opinion as a “dissent. ” An te, at 380 – 383, 387– 389. But on the question of whether to retain the P i ke balancing test in cases like this one, The Chief Jus- tice's opinion refects the majority view because six Justices agree to retain the P i ke balancing test: The Chief Justice and Justices Alito, Sotomayor, Kagan, Kavanaugh, and Jackson. On that legal issue, Justice Gorsuch's opinion advances a minority view.

Opinion of Kavanaugh, J.

Thus far, lega l cha llenges to Ca lifor nia's Propositi on 12 have focused on the Commerce Clause and th is Cour t's dor- mant Commerce Clause precedents.

Although the Cour t today re jects the plaintiffs' dor mant Commerce Clause cha llenge as insuffciently pled, state laws like Propositi on 12 implicate not only the Commerce Clause, but a lso potentia lly severa l other constituti ona l provisi ons, including the Impor t-Expor t Clause, the Pr ivileges and Im- munities Clause, and the Fu ll Faith and Credit Clause.

First, the Impor t-Expor t Clause proh ibits any State, ab- sent “ the Consent of the Congress, ” from imposing “any Im- posts or Duties on Impor ts or Expor ts, except what may be absolutely necessary for executing ” its “ inspecti on Laws. ” Ar t. I, § 10, cl. 2. Th is Cour t has limited that Clause to im- por ts from fo re i gn co un tr i es. See Woodr uff v. Parham, 8 Wa ll. 123, 133 –136 (1869). As Justice Sca lia and Justice Thomas have explained, that limitati on may be mistaken as a matter of constituti ona l text and h istory: Proper ly inter- preted, the Impor t-Expor t Clause may a lso prevent States “from imposing cer tain especia lly burdensome” taxes and duties on impor ts from other States—not just on impor ts from foreig n countr ies. Co mp tro lle r o f Treasur y o f Md. v.

Wynne, 575 U. S. 542, 573 (2015) (Sca lia, J., dissenting); see a lso Camps Newfo und /O w a t o nn a, Inc. v. To w n o f Har r iso n, 520 U. S. 564, 621– 637 (1997) (Thomas, J., dissenting); Bro w n

v. Mar y l and, 12 Wheat. 419, 438−439, 449 (1827).

In other words, if one State conditi ons sa le of a good on the use of preferred far ming, manufactur ing, or producti on practices in another State where the good was grown or made, ser i ous questi ons may ar ise under the Impor t-Expor t Clause. I do not take a positi on here on whether such an arg ument u ltimately wou ld prevail. I note only that the questi on warrants additi ona l considerati on in a future case.

Seco nd, the Pr ivileges and Immunities Clause provides that the “Citizens of each State sha ll be entitled to a ll Pr ivi-

Cite as: 598 U. S. 356 (2023) 409 Opinion of Kavanaugh, J.

leges and Immunities of Citizens in the severa l States. ” Ar t. IV, § 2, cl. 1; see So u th Dako ta v. Way fair, Inc., 585

U. S. –––, ––– – ––– (2018) (Gorsuch, J., concurr ing); see a lso

Ty le r P ipe Industr i es, Inc. v. Wash ing t o n Sta te Dep t. o f Rev enue, 483 U. S. 232, 265 (1987) (Sca lia, J., concurr ing in par t and dissenting in par t); J. Eu le, Lay ing the Dor mant Commerce Clause To Rest, 91 Ya le L. J. 425, 446−448 (1982).

Under th is Cour t's precedents, one State's effor ts to ef- fectively reg u late far ming, manufactur ing, or producti on in other States cou ld raise sig nifcant questi ons under that Clause. Again, I express no view on whether such an arg u- ment u ltimately wou ld prevail. But the issue warrants fur- ther ana lysis in a future case.

Th ird, the Fu ll Faith and Credit Clause requires each State to afford “Fu ll Faith and Credit” to the “public Acts” of “every other State. ” Ar t. IV, § 1. That Clause prevents States from “adopting any policy of hostility to the public Acts” of another State. Car ro ll v. L anza, 349 U. S. 408, 413 (1955). A State's effor t to reg u late far ming, manufactur ing, and producti on practices in another State ( in a manner dif- ferent from how that other State's laws reg u late those prac- tices) cou ld in some circumstances raise questi ons under that Clause. See, e. g., M. Rosen, State Extraterr itor ia l Powers Reconsidered, 85 Notre Dame L. Rev. 1133, 1153 (2010) (“ [T]he Fu ll Faith and Credit Clause is the more natura l source for limitati ons on state extraterr itor ia l powers be- cause that clause at its core is concer ned w ith extraterr itor i- a lity”); see a lso D. Laycock, Equa l Citizens of Equa l and Ter- r itor ia l States: The Constituti ona l Foundati ons of Choice of Law, 92 Colum. L. Rev. 249, 290, 296−301 (1992).

For example, the plaintiffs in th is case say that Oh i o law expressly author izes pig far mers in Oh i o to do precisely what Ca lifor nia's Propositi on 12 forbids. Br ief for Petiti oners 30 – 31; see Oh i o Admin. Code §§ 901:12−8−02(G)(4), (5) (2011).

If so, the Fu ll Faith and Credit Clause might preclude Ca li- for nia from enacting conficting reg u lati ons on Oh i o pig far mers.

Opinion of Kavanaugh, J.

Once again, I express no view on whether such an arg u- ment u ltimately wou ld succeed. But the questi on deserves fur ther examinati on in a future case.

* * * As I understand it, the controlling plura lity of the Cour t (refected in Par t IV– C of Justice Gorsuch ’s opini on) today re jects the plaintiffs' dor mant Commerce Clause cha llenge on the ground that the plaintiffs' complaint does not suff- ciently a llege that the Ca lifor nia law at issue here imposes a substantia l burden on interstate commerce under P i ke. See an te, at 383 – 387 (plura lity opini on); an te, at 391– 393 (opini on of Sotomayor, J.). It appears, therefore, that proper ly pled dor mant Commerce Clause cha llenges under P i ke to laws like Ca lifor nia's Propositi on 12 (or even to Propositi on 12 it- self ) cou ld succeed in the future—or at least survive past the moti on-to-dismiss stage. Regardless, it w ill be impor tant in future cases to consider that state laws like Propositi on 12 a lso may raise substantia l constituti ona l questi ons under the Impor t-Expor t Clause, the Pr ivileges and Immunities Clause, and the Fu ll Faith and Credit Clause.

Reporter’s Note

The attached opinion has been revised to refect the usual publication and citation style of the United States Reports. The revised pag ination makes available the offcial United States Reports citation in advance of publication. The syllabus has been prepared by the Reporter of Decisions for the convenience of the reader and constitutes no part of the opinion of the Court. A list of counsel who argued or fled briefs in this case, and who were members of the bar of this Court at the time this case was argued, has been inserted following the syllabus. Other revisions may include adjustments to formatting, captions, citation form, and any errant punctuation. The following additional edits were made:

p. 356, line 8 from bottom, “6 4th 1021” is replaced with “6 F. 4th 1021”

p. 397, line 10 from bottom, “ interests” is replaced with “ benefts”