The doctrine and its origins
Richard Epstein describes the Commerce Clause as the sole relevant constitutional provision, granting Congress power to regulate commerce with foreign nations, among the several states, and with the Indian tribes. He notes the clause speaks only to what Congress may do and contains no direct statement of what the states cannot do; it also requires a definition of commerce that works for all three markets, and it is not the case that Congress has a huge commerce power over the internal affairs of Great Britain or France. California’s Food Fight (2022)
Epstein dates the first Supreme Court case on the matter to Gibbons v. Ogden, decided around 1824. After that decision, he says, there were intimations in Supreme Court opinions that even where federal legislation was silent, the mere force of the Commerce Clause would block certain activities within the states — the part of the clause that, in his phrase, starts to sleep. Without some enforceable dormant-commerce principle, he warns, there is a risk of serious balkanization in the United States. California’s Food Fight (2022)
In the later episode Epstein restates the doctrine: if Congress does not legislate but a state statute imposes an impediment to the free movement of goods and services across state lines, then the very fact that the Commerce Clause takes over the area means those statutes can be struck down. He characterizes the doctrine as in some disarray today. California Passes the Worst Piece of Legislation Since AB 5 (2023)
From Dean Milk to Pike
Epstein describes a contradiction between the period from 1940 to 1950, when the federal government’s power to consolidate regulation of all farming was extremely strong and was used to set up agricultural cartels that raised prices and reduced output, and cases within five years arguing that the whole purpose of the Dormant Commerce Clause is to make sure competition between the states thrives. That purpose meant a state could not impose on goods coming from outside taxes it did not impose on goods made within the state. He cites Dean Milk, which he says holds that you cannot tell people from Illinois they must pasteurize their milk in a certain way using only Wisconsin facilities, even if some Wisconsin farmers have to yield to it in Madison and others do not. California’s Food Fight (2022)
He then cites Pike, from about 1970, in which the issue was whether Arizona could require certain people who sold goods in Arizona to ship their goods interstate using in-state facilities when out-of-state facilities provided cheaper and better access. Justice Stewart, he says, held that if the burden on interstate commerce is very great and the benefits to people inside the state are only incidental, the state cannot do it. In Epstein’s account, the Dormant Commerce Clause now applies even where there is no discrimination. California’s Food Fight (2022)
Proposition 12 and the pork case
Epstein corrects the framing of Proposition 12: it was a referendum that passed in 2018, not a piece of legislation. He draws a distinction between legislation, which involves compromise and give and take, and a referendum, where like-minded voters face no compromise and turnout may be low, so that a strong majority can favor a measure even if a majority of the state thinks otherwise. California’s Food Fight (2022)
On the substance, Epstein says the measure requires farmers to provide each sow with 24 feet of usable floor space and largely prohibits the use of individual stalls, including during the critical period between weaning and the confirmation of pregnancy. He reports that the briefs argued the way the animals are raised is harmful but never alleged that any pigs actually coming into the state carried a risk of public health in that fashion, so the traditional ground for extraterritorial regulation — an in-state health hazard — was unavailable. California’s Food Fight (2022)
The plaintiffs’ fallback, as Epstein describes it, was psychic income loss: Californians said to suffer deep psychic income loss from knowing food in the state does not meet the standard. He argues the difficulty is that psychic disabilities could take many forms — North Carolinians might feel the same about South Carolina farmers yielding to California regulations — producing a contradiction in which a producer must prepare goods one way for California and another for North Carolina, with 48 other states free to impose their own requirements. California’s Food Fight (2022)
Epstein notes that California has no real pig market, virtually zero, so the classic discrimination concern does not fit. The case reached the Supreme Court after an exhaustive opinion by Judge Sandra Ikuta upheld the California restriction; Epstein notes she is a Republican judge, so the issue is not necessarily partisan. He hazards that the statute would be struck down rather than affirmed. California’s Food Fight (2022)
The extraterritorial question and labor
Returning to the pig case in the later episode, Epstein states the California position: the state says you cannot sell within California pigs slaughtered and prepared elsewhere that do not meet California standards for justice and fair play — the so-called extraterritorial effect. He says the Dormant Commerce Clause arguments are stronger there than in the other matter under discussion. California Passes the Worst Piece of Legislation Since AB 5 (2023)
He raises a labor analogy: if California will not admit perfectly safe pork slaughtered elsewhere because it offends the state’s moral sense, could it also say it will not allow anyone to sell goods and services made in a right-to-work state or by a nonunion firm. In his view the Dormant Commerce Clause says you absolutely cannot do anything like that. He notes that the unions and the state filed a brief in the pork case, and that when confronted with the hypothetical about the Right-to-Work Act, they just punted. California Passes the Worst Piece of Legislation Since AB 5 (2023)
Epstein also discusses the empirical dispute over compliance costs, including whether the roughly 10% price increase posited by the industry is a true number, and whether the case may be remanded on that question. He predicts imitation: another liberal state could borrow the whole California package once the constitutional issues have been ironed out in California’s favor. California Passes the Worst Piece of Legislation Since AB 5 (2023)
The justices and the political alignment
Epstein identifies the late Justice Scalia and Justice Thomas as the two most reluctant members of the Supreme Court in dealing with the Dormant Commerce Clause, but says their objection is not economic — they are constitutionalists skeptical that an implied limitation on the states follows from an affirmative power granted to Congress, so they want a very narrow reading. He adds that Scalia was nonetheless prepared to strike down state tax schemes that taxed foreign and domestic companies equally while rebating domestic companies. California’s Food Fight (2022)
He expects a bipartisan situation, contrasting that alignment with cases where the federal government dictates cartel practices for nationwide industry. He predicts the most likely dissenter would be Justice Thomas, on the ground that there is no real Dormant Commerce Clause and that the case does not fall within a prohibition on discrimination. He argues the conventional wisdom is inverted: the real danger lies where a state has no domestic producers of its own and so faces no domestic opposition when it restricts foreign goods. California’s Food Fight (2022)
Epstein says Justice Breyer, who was retiring, would have been sympathetic to the Dormant Commerce Clause claim, and that the new Justice Jackson, who was Breyer’s clerk, would likely follow the same path. He notes that lower court precedents had drifted in favor of statutes like California’s, and that the Ninth Circuit had upheld the restriction. California’s Food Fight (2022)
Across episodes: what changed
Both episodes turn on the same question — how far one state may impose its production standards on goods made elsewhere — and both are built on Epstein’s account of Gibbons v. Ogden and the doctrine’s origins; the April 2022 episode supplies the doctrinal history (Dean Milk, Pike, the psychic-income argument, the justices’ alignments), while the January 2023 episode narrows to the pig case itself and presses it further, adding the labor and right-to-work analogy, the empirical fight over the roughly 10% price increase, the possibility of remand, and the prospect that other liberal states would imitate California. Epstein appears in both.
What the sources do not cover
The excerpts do not reproduce the text of the Commerce Clause’s judicial construction beyond Epstein’s paraphrase, nor do they state what the Supreme Court ultimately held in the pork case. They give no result for the Proposition 12 litigation and do not describe the outcome of any of the cases Epstein cites as precedent beyond his own summary. The excerpts also do not give the full names or citation numbers of Dean Milk or Pike, nor the disposition of the Ninth Circuit appeal.