Courthouse Steps Oral Argument: National Pork Producers Council v. Ross

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Dean Reuter:  Welcome to Teleforum, a podcast of The Federalist Society's practice groups. I’m Dean Reuter, Vice President, General Counsel, and Director of Practice Groups at The Federalist Society. For exclusive access to live recordings of practice group Teleforum calls, become a Federalist Society member today at fedsoc.org.

 

 

Jack Derwin:  Hello, and welcome to this Federalist Society virtual event. My name is Jack Derwin, and I'm Associate Director of Practice Groups here at The Federalist Society. Today, we're excited to host a Courthouse Steps discussion on today's oral arguments, "National Pork Producers Council v. Ross," featuring Mr. Ilya Shapiro. Ilya is currently a Senior Fellow and Director of Constitutional Studies at the Manhattan Institute. Previously, he was Executive Director and senior lecturer at the Georgetown Center for the Constitution, and, before that, a vice-President of the Cato Institute and Director of Cato's Robert A. Levy Center for Constitutional Studies.

 

I'll keep his intro there for now, but feel free to visit our website at fedsoc.org to view his full bio. After Ilya's presentation, we'll go to audience Q&As. Please enter any questions into the Q&A function at the bottom right of your Zoom window. Finally, I'll note that, as always, all expressions of opinion on today's program are those of our guest speaker. With that, Ilya, the virtual floor is yours.

 

Ilya Shapiro:  Thanks Jack. And it's good to be with you all. This was a fascinating and long argument. I want to emphasize long. It went two hours and twelve minutes. That's like two arguments in the before-times. Nobody can complain that they didn't have their views fully entertained by the justices, I think. There were four counsel arguing. That also extended the time. I'll take those up as we go through the way argument worked.

 

      I'll put the bottom-line up front. You're getting the value of my prediction at about what you paid for it. But this could be one of these "left and right against the middle" sort of decisions, where, if you're into the Dormant Commerce Clause or the National Pork Producers v. Ross case enough to be listening to this, then you know that Justices Thomas and Gorsuch are skeptical, to say the least, of the Dormant Commerce Clause.

 

Well, in addition to them, at this argument, the other three justices most skeptical were those on the left: Kagan, Sotomayor, and Jackson. So I think California wins, is my prediction — again, worth what you're paying for it — either five or six, maybe seven in the majority. But the strongest ones, as I said, are Gorsuch and Thomas, and then the three on the left. The strongest, probably, pro-challenger was Justice Alito. And then, I think, Kavanaugh and Roberts in there as well. Barrett was hard to read. So that's where my overall prediction lies, but more important than that, because, again you can't really take that to the bank. But fascinating discussion of issues.

 

      So, first, Mr. Bishop, the lawyer for the pork producers who are saying that California's law that regulates the amount of space that's to be given to breeding sows and, the argument goes, would impose substantial burdens on almost entirely out-of-state pork producers, thereby, that that violates the Dormant Commerce Clause. That's California regulating extraterritorially. And so Justice Thomas let off that that is now the Court's practice. Justice Ginsburg was almost always the first out of the gate. Now Justice Thomas, as the Senior Associate Justice, typically goes first. And he is asking questions at most arguments, which is also a change.

 

      So he asked, "When is a regulation impermissibly extra-territorial?" He wanted just the basic rule that the challengers were looking for, and the answer was that when the regulation applies to out-of-state production. And this would be one of the themes throughout the course of the argument -- that, for example, something like labeling, or something else that is post-production, is much easier to deal with. It's either de minimis or it doesn't affect having to trace back to where something — the very first widget, or, in this case, breeding sow — in the process lies, which is difficult to do in the pork industry because different cuts come from different states, and are hard to trace that way.

 

      So Justice Kagan followed that up by saying, "Anytime a rule changes a manufacturing process," and there was this discussion of exactly under the Pike balancing test case from 1970, "Does this mean that any burden is significant?" And the answer is, well, there's a balance there. It depends on how strong the interests that the state is asserting. And the challenger would not back down from this idea that whenever there is a state, as controlling out-of-state operations, that's the important part.

 

      Justice Kagan pressed on this, and said, "Well, what if this was Wyoming or Rhode Island passing a law?" Presumably, it's easier to just exit those markets. They're not that significant. California, here, even though the production is negligible of pork, it is consuming something like 15 percent of national pork. So that's not insignificant. But what about Wyoming or Rhode Island? And the answer was, legally speaking, there would be no difference.

 

      Justice Gorsuch jumped in, and we all knew what to expect: that he would probably be, ironically, or, again the case, showing odd bedfellows, if you will. He would be favoring California here, because he's asking the challengers, "Are you expecting us to apply a freewheeling balancing test to protect liberty, something like Lochner?" Now, I'd expect Chief Justice Roberts to invoke the specter of Lochner in a negative way, but not Gorsuch, who, in other circumstances — at least when it comes to the positive Commerce Clause — is skeptical of Congressional interference with economic liberty of different kinds. But, regardless, here, he came out of the gate with that.

 

      And before they began their opening -- this was still in the freewheeling portion of the argument -- again, the new argument format is they have this -- they can interrupt each other, although they're interrupting each other a lot less than they were before. But anybody can ask questions, and then, after that, they go in order of seniority, to see if there's any additional questions. So the last one in the free-for-all was Justice Sotomayor, and she asked, "Well, what about -- is this really a morality regulation about animal cruelty? Or is it a health regulation?" Some people believe — there's an amicus brief — that closer confinement leads to less healthful pork, and disease transmission, these kinds of concerns. And the reply there, well, first of all, this is a motion to dismiss, not an evidentiary question, and it seems like California is leaning more on morality anyway.

 

      What about alternatives? This would come up -- a less burdensome alternative, for example, labeling. Justice Barrett brought this up. Why is labeling okay, as the challenger has conceded? And again, the answer is, it doesn't affect operations. It's a post-production or marketing sort of issue. And also, another major theme of the argument came out that the challengers were saying that morals regulations can't count as a state interest, unlike health and safety. We can't have states asserting interest to regulate what's going on, or affecting other states significantly, when it's on the basis of morality, rather than health and safety, which, of course, leads to the, perhaps paradoxical, conclusion that a complete ban on a product — here, pork — would be okay, but a regulation of this kind that would impose costs, would not be. Does not the greater include the lesser?

 

      And that was a fairly nuanced argument about the nature of the regulation versus the relative burden. And if California thinks that pork is bad or a particular type of product is bad, it can certainly exercise its police power in that way. But that doesn't have such a significant out-of-state impact on operations. And it came out that California might have a stronger case — I think Justice Alito asked this question — if there were insignificant in-state producers, because then it would be effectively an anti-discrimination or a level-playing-field regulation, if it subjected the in-state producers to these kinds of regulations about how you raise sows, then you want to have a level playing field. But that's not this case.

 

      Then the U.S. government, the Deputy Solicitor General, Ed Kneedler -- and here, the Biden administration is supporting the challengers, again, against California — one of those rare cases — because it doesn't want the "Balkanization of the national economic union." Justice Thomas asked, "Well, wouldn't you avoid this problem by just having national legislation to the same effect? And the answer was, "Yes, Congress can do this." But, of course, that doesn't answer the question, because that's the whole crux of the inverse commerce clause.

 

      Congress could have this kind of agricultural regulation. It has chosen not to. What is the significance of that? Justice Alito probed further this question about safety versus morality, and asked, "What about applying these kinds of regulations to Mexico or Canada?" And the response was, "Well, that might implicate the foreign commerce clause or violate certain treaties that the United States has." And, of course, treaties, being part of federal law, trump state law to the contrary.

 

      Justice Kagan asks an interesting hypothetical about pre-civil-war days, before the Thirteenth Amendment, "What if a state had a regulation saying no product that's been produced by slavery can be sold in the state? Or what about a ban on horse meat? We're okay with that. Certain states ban that. But this is a lesser regulation, and a lot of interesting hypotheticals here." Later on, there was the Texas versus California battle. Let's say that Texas had a rule that no fruit can be sold in the state that's been handled by people who were in the country illegally. Ultimately, California's counsel conceded that that might be okay, because there might be a state interest that's particular for that. California might not like that, but the California Solicitor General, Mike Mongan, conceded that that was okay.

 

      How unusual is this law, and does that matter? Justice Kavanaugh and Justice Barrett asked that repeatedly. And the answer here is that it is pretty unusual, because it's a moral regulation that has a significant extraterritorial effect, and, moreover, if this is upheld, then that would invite a further attempt to regulate other states. So if this law falls, the answer was, not too many other laws would have to fall. None could be identified, perhaps. But if it's upheld, then that might invite more regulations of other states on various kinds of moral grounds.

 

      That led to an interesting discussion, ultimately, with the lawyer for the Humane Society. That's the fourth counsel. It's rare that an amicus for a non-sovereign — for not a state or the solicitor general's office — gets to argue. But here we had the Humane Society. And an interesting part came out here from Justice Barrett, who asked what morality is, or followed up on Justice Thomas, who asked, "How would you define 'immoral' or a cognizable state interest in morality?" And Justice Barrett said, "Let's dig deeper on that. Is it kind of a parallel to substantive due process," she said, "deeply rooted in our nation's history and traditions?"

 

      And the answer was, "Well, you have to look at the closeness of the fit of the moral interest or the regulation." But, ultimately, at one point Mr. Lamken, the counsel for the Humane Society, said that, indeed, there's a difference between deeply-rooted long-recognized cultural traditions and something that's new. Justice Alito said, "Hold on a sec, are you really saying that old morality is okay, but new morality is not, at least for purposes of an interest that can survive a Dormant Commerce Clause analysis?" And my view is that that, indeed, is kind of interesting, transposing that unsatisfying substantive due process standard onto questions of federalism and this heterodox consideration of the Dormant Commerce Clause.

 

      Justice Kagan, at one point, asked whether the idea was you have an anti-leveraging principle as the idea that as long as a state is passing laws for its own sincere interest and isn't trying to leverage its own power to affect national change, that's okay. Justice Thomas earlier — but this kind of goes into this discussion — asked whether it matters if the extra-territorial effect is the real purpose of the legislation, or whether it's just a collateral effect. And, of course, here, Prop 12 was a state referendum. So who knows what each individual voter, or a plurality of them -- why they wanted to require these kinds of regulations for raising livestock.

 

      Was it concerns about health, whether based in science or not? Or was it a morality/animal cruelty-related interest? Lots of line-drawing issues here. A lot of them are very tough — as Justice Kavanaugh, especially, drew out — with various kinds of hypotheticals or, as Justice Alito put later on to California's SG, "What if a state says, 'We simply don't want products produced in an immoral way,' and that morality could include Oregon saying the workers don't have a certain level of health insurance; another state saying that we don't want it produced by workers who are not vaccinated; another state, the Texas example, 'We don't want it produced by people who are in the country illegally'?" All sorts of different things that could be countered as morals legislation.

 

      I'm not sure. This doesn't change my bottom-line prediction that California's likely to win, but what kind of standard the justices are likely to draw is very unclear because it does seem that none of them were satisfied with the rule of law that either side, or that any of the four sides, I suppose, was proposing. At one time, Justice Kavanaugh asked whether the California Solicitor General wants Pike and that balancing test to be overturned for some sort of clear rule, and he said, "No." So I don't know. The conventional wisdom going into this argument — and I shared this — was that they were going to use this case to change the Pike standard to have some sort of clear delineation between state laws that violated the Dormant Commerce Clause and those that didn't.

 

      This seems to be a period where the Court is reconsidering a lot of precedent from the gaudy legal wallpaper of the 1970's, as I've put it elsewhere. But I don't know what the ultimate standard or rule of decision will be here. But, again, it does look like there are at least five votes to uphold the California regulation, because it's neither discriminatory against other states facially — a tariff-style trade barrier — nor is there a way of drawing a line between a permissible and an impermissible morals regulation.

 

      The conclusion -- I'll end with this -- and that's the final statement from the rebuttal by the challengers -- when asked, were saying that if the challengers don't win, this would bring us back to the pre-Constitutional Convention picture of Balkanized markets that destroys the twin purposes of the Commerce Clause, which is to maintain the national economic union and territorial sovereignty of the states.

 

      I certainly agree with that sentiment. I actually should have disclosed this sooner: I filed a brief at the cert stage on the Cato Institute's behalf, urging the Court to take up the case and clarify the Dormant Commerce Clause. But, in any event, I think I'll leave things there. And I'm happy to take the questions that you might have. But really a fascinating argument. And I hope I did at least decent justice to what went longer than two hours, as I said.

 

Jack Derwin:  Thanks so much, Ilya. Very impressive of you to keep that to about 20 minutes, given the length of the arguments. And so I have a few questions coming. I'll remind our audience you can enter questions on the bottom right of your screen, using the Q&A function. So we have one here, "Did anyone advert to the current practice of California setting more restrictive standards for automotive car specifications and pollution controls -- also, seasonal blends of gasoline in retail sales? Might this case affect those concurrent California regulations that influence national markets?"

 

Ilya Shapiro:  Yeah, this is from Ted Cooperstein, it says on my screen. Hi Ted. The emission standards did come up, and the challengers were questioning about this, and they distinguished it by saying that, "Well, pollution crosses state lines and affects everyone directly. That's a health and safety regulation. It's different from a morals regulation." Didn't get into the specifics about seasonal blends or car specifications, but just a general point about perhaps something extra-territorial that California is best known for -- its emission standards. And so that was that point.

 

      And I'll take the next question that's popped up here, from Solveig Singleton, who asks, "Was there any discussion of how these principles might apply to state internet regulation? California's internet privacy law also potentially has a considerable effect in other states." The short answer to that is "No." Wayfair came up briefly, in passing. That's the case a few years ago about taxation of businesses that don't have any physical presence in a state, but that was mostly a taxing power case. The Dormant Commerce Clause issues work a little differently because they are selling products into the state. It's not trying to regulate sales or operations that are purely out-of-state. But, other than those couple of fleeting references to Wayfair, there was not discussion of internet regulation.

 

      Then we have Allen Charles, who asks, "What importance, if any, does the fact that the California regulation was adopted through voter referendum, rather than by the California legislature or executive regulation?" That's a really good question. And I mention one place where it came up, where I think it's Justice Thomas asked, "Does it matter what the purpose was, or whether we can even tell what the purpose is? Or does it matter whether the impact is felt, because that's the purpose of California or just because it's a collateral consequence?"

 

      And there, there was a bit of a discussion of how, with the referendum, who knows what the purpose is, even to the extent we care about legislative intent or legislative history. But, short of that, the argument was not parsing the difference between laws adopted by referendum versus legislation, versus executive regulation.

 

      The next question from Robert Crutcher, "Was there discussion of whether California may bar California sale of goods not manufactured under Cal/OSHA rules?" I don't think so. I'm sort of mentally thinking through the various hypotheticals that were asked. I don't remember OSHA rules. That's kind of subsumed by other questions about states regulating health and safety, I suppose, that weren't asked, specifically, about working conditions.

 

      There were a couple of questions about either right-to-work, or other worker-rights guarantees — right-to-work, of course being that you don't have to join a union — and can states draw those kinds of rules? And not really a satisfactory answer. Of course, the challenger said, "No," because that's even a greater intrusion than what this might be. And the state kind of hemmed and hawed and said "You have to look at the operation of the regulation versus the strength of the state's interest." But no clear discussion there.

 

      Steven — I assume this is Baden, but it shortened your name for some reason, this Q&A screen that I'm looking at — anyway, two questions. "One, did anyone note that under California's law, California sends inspectors to other states to enforce Prop 12? If so, what effect did that have on the justices' reasoning?" That was one of the -- got a lot of play in some of the editorializing about the case beforehand. And that was only mentioned in the challenger's counsel's opening statement. Other than that, that did not seem to play a role, which was surprising to me, to be honest.

 

      And second, did the fact that this case was dismissed at the motion to dismiss stage come into play, given the fact-heavy nature of the Pike balancing test? Yes, that definitely came up at certain times when Justice Sotomayor was talking about scientific evidence. And the response was, "Well, we're not even there. This is motion to dismiss." Justice Jackson also — perhaps showing her experience as a trial judge, as a district judge — did talk about the motion to dismiss stage and how we're supposed to look only at the four corners of the complaint. So I think that may well play a role in how this is decided. That is, to the extent California wins, that I'm predicting it won't be because it's brought evidence to support a particular claim of interest.

 

      Well, that relates right into the next question by Tom Palmer, "Was there scientific evidence on the pain of pigs?" And there wasn't too much, wasn't dueling briefs so much. But this came to the end of the opening line of questioning of Mr. Bishop, the pork producer's counsel, when Justice Sotomayor talked about the health effects, and there was reference to dueling amicus briefs that were submitted. But, beyond that, I think, at one point, it was asked, "Do we decide this based on the strength of the evidence?" And the answer was "No, it's motion to dismiss stage."

 

      Eric Lipman asks, "For members of the Society, or listeners who observe the kosher dietary laws, would a victory by California in this case presumably authorize a state to ban ritual slaughtering of livestock on animal cruelty grounds?" Well, that's interesting. It might depend on who you ask. The Humane Society, of all places, might have said "No," because that's deeply rooted, whereas California might say it would allow the state the do it, because that's a matter of state power. I'm not sure. For practical purposes, I'm not sure either, because it depends, really, on how the Court writes its opinion. Under Pike balancing, who knows, it depends what kind of judge you get on any given day. So that's why I really hope whoever wins that they do clarify the test.

 

Jack Snyder asks, "Thanks for your insights, as always." You're welcome. "Do you think the petitioners could have more success in future challenge if they can show, on an as-applied basis, that the California pork law has the effect of increasing prices on consumers in the other 49 states?" Now, the issue of price did come up. Is price impact enough to show a burden under Pike balancing? Is it a matter of, well, the price burden has to be significant? Or is it just an increase in price? Is that enough extra-territorial effect to endanger the law? And I'm unclear. It wasn't touched on too much.

 

The focus of the challengers was that it affected operations, because this is the pork producers, after all. The United States focused on the national market, national union, economic union issue. So we didn't have a consumer's representative or a public interest organization, perhaps. They would have been focusing on that. But there was some discussion. We'll see how price increases, as opposed to interference with manufacturing processes or operations, how that affects the analysis.

 

      Clarke Forsythe asks, "Do you see implications of this case for state extra-territorial enforcement of their criminal law, such as prostitution or sexual trafficking or abortion?" That's interesting. It did come up. States can ban things that they don't like. Some states legalize marijuana now. Some states still ban it completely. Neither of those is a Dormant Commerce Clause issue. I don't know what the rule would be, how this would come up. Someone who commits a crime, it would be extraditing someone to a state. Where something is criminal, where it's not, where they're apprehended -- that would be more of a choice of law issue, I suppose, and a compact clause, than a Dormant Commerce Clause issue.

 

So, off the top of my head, just looking at this, I can't give it to you right here -- the criminal stuff like that. Morality regulation certainly came up, again, in the sense of production -- Commerce Clause-related stuff. And you can imagine, at one point, Kavanaugh said, "I can give you plenty of examples of social issues where a state wants to enforce its view of morality, whether with respect to — he didn't give this one, but I suppose, in light of this question — we don't want this to be made in a place where workers don't have easy access to abortion. But that's not the criminal law, right? You get to, then, the propriety of morals regulation, and, I guess, the closeness of the tie, the asserted state interest to the burden imposed on other states, under Pike balancing, again, before they rewrite the standard to whatever it will be.

 

      Brad Silvernail says, "Can you say which justices will be for and against California and the state?" That's a good reprise. I said this at the outset. Again, my prediction is probably the least important part of this presentation. Certainly, I think, worth the least. I hope you see it this way. So, I think, Thomas and Gorsuch, who are always skeptical of Dormant Commerce Clause claims, are probably for California. I'd say Kagan and Sotomayor were very strongly for California. Jackson a smidge less so, but she was focused on line-drawing issues, I suppose. But I would definitely put her in the California camp. And then, in decreasing order of California favorability, I [inaudible 00:30:29] Barrett, then Kavanaugh, then Roberts, then Alito, who is least likely to be for California. So I think it's going to be at least five, as high as probably seven, something like that, for California. But again, they could do something, rewrite a standard, change stuff around. That's just my quick and dirty calculus here.

 

      Michael Tannenbaum asks, "How likely is the Court's decision to turn on the magnitude of the costs or effect that Prop 12 imposes on out-of-state producers? Was there any discussion of how significant the burden on commerce would need to be, or how it's measured?" Yeah, this is inherent in Pike balancing. How strong is the Court's interest, versus the burden that's imposed? And there was a reference by, I think it was by the state, to an economist's brief that was disputing the alleged cost to have to retool the operations. There was also mention that this was potentially a pro-big business, anti-small business regulation, and that, as with any regulations, the big guys can afford their compliance officers, and this could deter smaller players. What effect that has on Dormant Commerce clause analysis, I'm not quite sure.

 

Anonymous asks, "Why are Gorsuch and Thomas skeptical of the Dormant Commerce Clause?" The short answer is because it's not explicit in the text of the Constitution. The slightly longer answer is that they don't want to open things up to a broader conception of the "Woke Commerce Clause." I don't know what the opposite of dormant is. The "Awakened Commerce Clause"? The positive one? The regular old one?  And so they don't want to read broadly here, lest Congress's federal power be read broadly.

 

      Christian Townsend, my former associate, says, "Thanks for the discussion. Based on the justices' questions, do you think this case will be decided more based on the original meaning of the commerce clause, or do you think the Court will rely more on previous case law and tradition?" It's a very good question. It's a very good question. I think different justices might base their votes on -- for different reasons. We could have -- even as I was counting out, gaming out those votes, that doesn't mean it's going to be a clean 5-4, 6-3, 7-2, whatever it is.

 

You could have splintered opinions on varying grounds with Gorsuch and Thomas saying that this is -- at most, the Dormant Commerce Clause is an anti-discrimination provision, and this isn't discriminating, one state against another, while Kagan and Sotomayor and Jackson say that it's under Pike balancing, because we don't need to overturn Pike balancing. The interest is strong enough here. Who knows? I think there might be a mix.

 

      Carl Schneider asks -- keep them coming, folks, this is great stuff.  Carl Schneider asks, "Is the Dormant Commerce Clause doctrine itself in danger?" I think not. I think not. I think there's enough votes that when something is clearly a state barrier, just favoring in-state producers throwing up the equivalent of tariff barriers to all out-of-state producers — again, that came up, that if California had a pork-producing industry at all, and they subjected their own producers to these kinds of regs — then it would be on stronger grounds for subjecting it to imports as well, but it doesn't. I think it's only .2 percent of pork production in the country is in California. So I don't think the doctrine itself is going to be read out. But I think how it's applied, or the standards are going to change.

 

      Allen Charles asks, "Could this set the stage for future state environmental global warming objectives? For example, a California regulation that prohibits the sale of non-organic commodities?" I think it could. I think it could. If this is upheld, then California could say, "No produce that has used pesticides can be sold here." I think that's no less of an interest than an interest in the space that breeding sows have. So I think that certainly is something that becomes possible, if this is approved.

 

      Carolyn Cohen asks, "Relating to California offering abortions and gender operations for minors if other states outlaw it." I don't think that is implicated one way or another here, because that's regulating abortion or practice of medicine inside the state. So, yeah, I don't think that sort of thing is implicated, unless, again, it's one of these social regulations where we don't want something produced by workers who don't have ready access to abortion or where people don't have ready access to state-paid gender-affirming surgery, or something like that.

 

      Okay, Andrew Yurs-, and then it's dot, dot, dot, it broke off the name, asks, "Do you think the Dormant Commerce Clause was the best theory upon which this case could have been brought?" Well, it's the issue that the Court took up. I suppose -- I don't remember whether, in the lower courts, issues like the Privileges and Immunities Clause was litigated. But, again, this isn't a pure anti-discrimination. Some states are treated differently than others, or in-state interests or privilege-type of case. So, I think it does look like a pretty classic Dormant Commerce Clause case.

 

      Jeffrey Wo-something -- again, cut off last name, asks, "If your prediction about the outcome is generally correct, would you extend it to the likely effect on Dormant Commerce Clause jurisprudence? Would it completely overturn the doctrine, minimally cabin it, or somewhere in between?" It just depends on how they write the opinion. Kavanaugh doesn't sound like he wants to change the Pike standard. I think, if anything, I'd predict that he would rule against California, under the existing Pike rules.

 

Kagan, we know, has a strong view of stare decisis, and doesn't like overturning precedent. Maybe that changes now, with Roe gone. I'm not sure, but I don't know. This is up in the air, depending on how they write the opinion. If they just don't change the standard at all, and just say "This passes Pike balancing," then it probably does limit the scope of the Dormant Commerce Clause, going forward.

 

      Douglas Meyer asks, "Did any justice seem to care that this jurisprudence would seem to be a way of letting Congress off the hook to do its job?" Not in so many words. That, of course, was a major theme of the major questions doctrine cases last term, that if they let an agency assume awesome power with Congress being explicit, then that lets Congress off the hook, doesn't make Congress accountable. That could be a consideration, although, of course, the biggest proponent of the major questions doctrine is Justice Gorsuch, who, here, is not a major -- even if you look at his hydraulic forces language in the Gundy case relating to the nondelegation doctrine, it's a bit of a deep cut. But anyway, I don't think it's going to come up that way.

 

      And the last question currently on the books — so if you have anything more, get it up there, because we're going to conclude soon — the last question is from Alan Ira-something. "Other states, like Massachusetts, have proposed regulating this specific issue, but not the same way. And it did come up that Massachusetts and certain other states had certain state regulations, in-state regulation to this effect. How important is the issue, if at all, of potential conflicts between different states seeking to regulate this in other areas? Certainly, the Commerce Clause issues raised by the producers are exacerbated by the potential for a myriad of state regulatory schemes." Yes, you would think that this is precisely the issue that the Solicitor General's office was most concerned about, the disruption and Balkanization of the national economic market.

 

      I think, if California wins, and, again, depending on how -- precisely, under what standard they write, you could enable states to have all sorts of differing standards. And then it's a race to the bottom or race to the top, or manufacturers, producers, will consider whether a given market is worth the cost of segregating or changing operations, depending how easy that is in a given industry. It would certainly introduce complications, in terms of manufacture and retailing.

 

      Anonymous asks, "Could California require all states to pay its minimum wage?" I doubt the Court would want that. That's, again, one of those strings of hypotheticals, a moral sort of thing. "We don't want this produced by anyone who is paid less than minimum wage." Kind of goes to Kagan's hypothetical about slavery, as well, because it's kind of like the -- I guess it's slavery. The maximum wage is zero, in effect. Perhaps more of a moral interest, regarding slavery than the minimum wage, but maybe not, depending on how different states might feel about these issues. So I do think that this would be something that the Court would -- regardless of even if California wins, it would want to have a rule that wouldn't allow something like that.

 

      Anonymous asks, "What was USDA's major objection to the California law?" Well, it wasn't the Department of Agriculture, as such, it was the government as a whole that was appearing. I think that's an important thing. The Department of Agriculture, I don't think, has independent litigation authority. It might. Someone's going to correct me on this. I have seen cases that are USDA, but I think the Solicitor General argues those. So, anyway, the government's -- the US government's major objection was that this would Balkanize the national economic union, have 50 different types of regulation in a given industry, or California would set the stage for everyone else. It wants the national government to regulate nationally.

 

      Another anonymous says, "You noted California has very little pork production. What is their pork consumption?" I think it's 13 or 15 percent. One of those two. So it's .2 percent of the nation's production, something like 13 or 15 percent of its consumption of pork.

 

      That was the last question, so I'm going to filibuster here for a little while, while Jack composes his concluding thoughts. Going once, going twice -- thanks very much for allowing me to entertain and maybe even enlighten you. And, Jack, take it away.

 

Jack Derwin:  Thanks so much, Ilya for gamely taking on all questions today. And thank you to our audience for tuning into today's event. You can check out our website, fedsoc.org, or follow us on all the major social media platforms @fedsoc to stay up to date. And with that, we are adjourned. Thanks again, Ilya.

 

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Dean Reuter:  Thank you for listening to this episode of Teleforum, a podcast of The Federalist Society’s practice groups. For more information about The Federalist Society, the practice groups, and to become a Federalist Society member, please visit our website at fedsoc.org.