“A house divided cannot stand.” The Founding Fathers were wise. They understood that there were circumstances where the states could inflict economic warfare on each other. The Founding Fathers also understood that this nation could not survive economic warfare among the states. The Founding Fathers were also worried about large and wealthy states abusing smaller states and imposing their agenda on nonresidents. It was because of these concerns that the Founding Fathers created the Dormant Commerce Clause.
The Dormant Commerce Clause essentially prohibits states from making laws that would economically discriminate against the citizens of one state in order to benefit the citizens of another state. It has also been used to protect the industries of one state from being abused by another state. The nation was an agricultural country at its founding, and it was important to the founders that commerce could be freely traded between the states.
Unfortunately, the Supreme Court appeared to have forgotten those principles and just gave California the right to control agricultural practices for the rest of the country. In a 5-4 decision, the Supreme Court upheld Proposition 12. Proposition 12 was a law made in California prohibiting pork from being sold in the state that is not being raised following very strict and economically unrealistic standards. California’s requirements would cost pork producers nationally hundreds of millions, if not billions of dollars to conform to, which will in turn increase the costs of pork for everyone—whether they live in California or not. The case ultimately turned in California’s favor because the Court ruled that California has a right to regulate industries within its jurisdiction and it is Congress’s role to regulate commerce and prevent abusive state laws.
While a state certainly has a right to regulate the industries within its borders, the problem is that the effect of California’s law extends well beyond its borders. California hardly produces any pork, but the state holds a 13% share of the consumer pork market, making it “economically infeasible for many pig farmers and pork producers to exit the California market.” So, if a pig farmer in Iowa wants to continue existing, that farmer will have to either completely change his or her practices or lose a large share of his market. According to the court, so long as a law does not specifically discriminate against a Californian compared to a Kansan, then the law does not violate the Constitution. Ultimately, California’s law undermines our state boundaries and the sovereignty of those states by forcing individuals and businesses in one state to conduct their farming, manufacturing, and production practices in a manner required by the laws California.
So, the court’s ruling begs an avalanche of questions … do we really want to open this Pandora’s box? When do your state’s rights violate my state’s right? Should a state be allowed to create laws that impose its moral values on its neighboring states? Should a state be allowed to deny market access to out-of-state industries for controversial policies? Should New York be able to create a state law banning the sale of goods produced by workers paid less than $20 per hour? Should Texas be allowed to prohibit the sale of goods produced by companies that pay for employees’ birth control or abortions? If the answer is that a state’s right to create its own laws trumps the right of an out-of-state worker to lawfully make a living in their own state, then perhaps we should do away with state borders because they will mean very little if we continue to go down this path.
Conner Nicklas is an attorney at Budd-Falen Law Offices licensed in Wyoming, Colorado, and Montana who specializes in representing local governments and landowners regarding natural resource and property right issues.
