August 26, 2022

Nessel, Raoul Lead Amicus Coalition Arguing for States’ Rights

Lori Kalani, Bernard Nash

Cozen O'Connor

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Cozen O'Connor

On August 18, 2022, a multistate coalition of AGs, led by Illinois AG Kwame Raoul and Michigan AG Dana Nessel, filed an amicus brief in the United States Supreme Court case National Pork Producers Council v. Ross, arguing that the dormant Commerce Clause does not preclude states from regulating conduct within their borders merely because the regulations incidentally affect out-of-state conduct.
The case arises from a challenge to California’s Proposition 12, which prohibits the sale within California of pork products produced from animals confined in a manner contrary to Proposition 12’s housing standards. Industry groups argue that the statute violates the dormant Commerce Clause because it has the effect of controlling conduct outside California, regardless of any evidence of discrimination or protectionism.
The AG amici argue that this reading could constitute a dramatic break from long-settled precedent and would significantly expand a limited doctrine aimed at preventing discriminatory and/or protectionist regulations rather than at state regulations that indirectly affect out-of-state conduct or require businesses to adapt to differing statutory schemes. The AGs argue that such regulation is a core exercise of each state’s sovereign authority to protect residents in a variety of ways, including setting consumer product safety standards, preventing price-gouging, and restricting predatory lending, even if such protections have incidental effects outside the state’s borders.

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