Divided Argument

Horse Sausage

Episode Summary

We provided an extended preview of the arguments in one of the October cases, National Pork Producers Council v. Ross, which takes us into a long discussion of the "dormant" Commerce Clause and extraterritorial regulation. But first we discuss some statements from Justice Alito and Ginni Thomas, the newest circuit justice assignment, and some updates from last episode.

Episode Notes

We provided an extended preview of the arguments in one of the October cases, National Pork Producers Council v. Ross, which takes us into a long discussion of the "dormant" Commerce Clause and extraterritorial regulation. But first we discuss some statements from Justice Alito and Ginni Thomas, the newest circuit justice assignment, and some updates from last episode.

Episode Transcription


Dan: Welcome to Divided Argument, an unscheduled, unpredictable Supreme Court podcast. I'm Dan Epps.

Will: And I'm Will Baude. It's our first non-live show of the season.

Dan: Yes, this is Season 3. Can you believe we're in our third season?

Will: Feels like forever to me. 

Dan: I don't know if it’s a--[crosstalk] 

Will: It's a good thing. 

Dan: Yeah. It's not even really three full seasons, because we started Season 1 in the middle of the term. This is our second full season. We'll know if it's a full season if we make it. But in theory, a second full season. It's good to be back, back in the studio after a great trip to Colonial Williamsburg. I think you have to call it Colonial Williamsburg as I've said. We're less of a gap, what, it's just a couple of weeks, right? 

Will: Yeah. 

Dan: Not whatever, five- or six-week gap that we had last time. 

Will: Summer's over, my friend. 

Dan: Yeah, we're back first Monday in October. We are recording this on Friday, September 30th. So hopefully, this will get to you sometime over the weekend. So, a lot going on. We are going to jump back in. I'm still getting my head back into the court. I had multiple reporters ask me stuff about the term, and I don't even remember. This stuff totally leaves my brain for a blissful month or two right around August. And then, I have to get sucked back in. I'm out, they pull me back in.

Will: I'm sorry to say the Supreme Court never leaves my brain.

Dan: Yeah, I mean, the Supreme Court is your brain.

Will: [laughs] I wish. I've gotten a lot of feedback, not all of it friendly, from our conversation, a lot of friendly disagreement at Williamsburg. I don't know about you.

Dan: Not as much. Just one, trivial one, and then you can-- I'm sure you've got substantive ones, because I wasn't sure what to make of this one. This is a bad review on the Apple Podcast where it says, "This is my first time listening to the show, and I might have to stop after about 10 minutes. One guy's mic is perfect with crisp audio. The other guy sounds like he's in a hole and mumbles and trails off in every sentence. He's not speaking human language. He sounds more like a punctured tire that's given up on life. He speaks two words and whisper mumbles ten. Rinse and repeat." I first read that and I thought this is about Will in the bad audio episode, but I'm not sure because I feel like I do more trailing off than you do.

Will: I hope that's about me. No, we're both mumblers, unfortunately.

Dan: Yeah, maybe so.

Will: Weird that two members can survive on a podcast together.

Dan: Yeah, well, I guess we have lost listener, SelpSelp is not on the team, and so we will have to persist without SelpSelp's enjoyment of the show, but you have some more substantive stuff. Bring it on.

Will: I'll just say, obviously, a lot of people were horrified by the suggestion I made that we could still do the show even if you were part of the Maoist takeover.

Dan: Yeah, that's an insane position. Your position on this is insane.

Will: Including several of my actual friends. So, I just want to--[crosstalk] 

Dan: Unlike me, is that what you're saying? 

Will: No. [laughs] We're friends too, I hope, but this is actually--

Dan: Just the way you said that, "Well, my actual friends."

Will: I just mean not just people who listen to the show.

Dan: Not randos, not SelpSelp.

Will: Not [chuckles] even just friends of the show. Friends of non-show.

Dan: Friends of you.

Will: I do think we totally collapsed for lots of reasons, things like collegiality with things like friendship, is one of those, there's like actually a huge span of being friends with somebody, and then being able to participate in an activity collegially. I think we, being actual friends, covered a whole range of that, and that's actually a much more complicated-- One of my students who listens to the show complained that Aristotle, in fact, distinguishes between a number of different kind of friend relationships, like friendships of convenience, friendships of virtue, and friendships of pleasure. Even there, we get into a lot of different gradations. So, I just want to say, I probably oversimplified a lot of that stuff.

Dan: Well, there's only so much you can do on the fly. Can I just say one overarching thought I had coming out of that? 

Will: Yeah. 

Dan: Which is that I totally see-- I think that you're coming from this as a place of like you're seeing-- and I agree with you that a lot of this stuff. There's way too much eagerness to cancel people or to not platform people or just refuse to hear arguments, all sorts of stuff like that, but I feel you have taken that. Your reaction has just been to go all the way to the other extreme and basically say it is never ever appropriate to declare something out of bounds. It just seems there should be some limits on polite society somewhere. We don't have to have the whole conversation again, but it seems there should-- the fact that maybe where society or where certain segments of society wants to draw that line is way too soon. I still think-- I don't want to have to be cordial to someone who's espousing Nazi race hatred. I don't want to be on the stage with that person. I don't want to talk to that person.

Will: I'll say this. I try very hard to say what I actually think on this podcast and all the weird stuff I say, I try very hard for that all to be genuine. But you're probably right about my psychology, you're probably right about this. 

Dan: I'm not saying you don't believe it. I'm just saying that maybe you have--

Will: You're probably right of my reaction to that. You're probably right about that. One other thing is we talked a lot about this Yeshiva University case at the court where that Yeshiva lost and was sent back to the lower courts to try to figure out the dark arts of New York appellate procedure. And I just wanted to flag a couple of developments. As I understand it, this is still unfolding for all I know, it'll be folded again by the time that comes out. But as I understand it, Yeshiva University's initial response to losing was to cancel all of the student clubs entirely. We talked about some of these reactions like, "Ah, that's equal treatment," if just no clubs can do anything, while we go sort of try to negotiate the state process. And then, as I understand it-- this is not reflected on an official docket that I can find, but as I understand it, then the student group, then volunteered to not seek recognition right now, so consented to a stay if Yeshiva would let the other student groups come back, because they didn't want to be--[crosstalk] 

Dan: [crosstalk] 

Will: Well, they didn't want to be in the position of having all their fellow students suffering because of the hardline Yeshiva was taking against them. So, I think there's a negotiated ceasefire in a way, while this can now go through the state court process. Maybe that's ill informed, maybe something else will happen, but I think that's where the case rests, which is interesting.

Dan: Yeah. But ceasefire but not the end of hostilities.

Will: Not a truce, not a treaty. 

Dan: So, we will expect a decent chance that that will return. What else? Justice Jackson had her formal investiture. She already was a Justice, but now she's like really, really Justice.

Will: Well, that has no legal effect. 

Dan: No, I know. It's just a ceremony.

Will: I like ceremony. I got married.

Dan: You didn't join the Supreme Court bar though, that's a ceremony.

Will: Well, that's partly because I want the ceremony and then you want me to do it in the mail, and then it all--

Dan: We didn't get press invites to this event. We're not hard passholders, but maybe we'll just keep doing enough of these episodes, we will. I don't think we're even on the public information office email distribution list. I don't even know if they'll let us do that, but if they're listening, please do. Related to that, we had a not super consequential order. But one that happens every time there's a new Justice who joins the court, which is that you see this, well, we have a new shuffling of-- not really much of a shuffling. 

Will: Yeah, no shuffle.

Dan: Circuit Justices. Justice Breyer was the Circuit Justice for the First Circuit. And now, Justice Jackson will take that spot. Circuit Justice, it's hard to describe what this is to people who don't totally know. It's like, you're the godfather of that Federal Circuit Court. 

Will: I think it's more like the regional manager.

Dan: Yeah, you've limited authority, you get to go to their fancy judicial conference, and they get to claim you. And then, the real substantive thing that matters is that you are then the person in charge handling requests for various kinds of shadow docket type things that come up from that circuit. So, if you're a potential petitioner seeking the Supreme Court review in the First Circuit, and you need an extra 30 days, you would go to Justice Jackson now.

Will: And this used to be more important, because I think Justice Scalia had a very idiosyncratic stingy view of when you should get extra time when he had the Fifth Circuit. So, Supreme Court petitioners in the Fifth Circuit just had three months less to work on their cases than anybody else did, because Justice Scalia wouldn't give them time. [crosstalk] 

Dan: My sense is that there's still some variation when I was there. It was funny, because Justice Stevens would give anybody however much time they want it, just automatically. You want 60 days, you get 60 days. Justice Scalia would give nobody time unless they had eight of the attorneys on this case have died, and he'd would give you like 15 days or something. Very, very stingy. And then, Justice Kennedy would usually split the difference. So, you have to-- [crosstalk] 

Will: Like you have the time you've asked for or--?

Dan: Yeah, often, like people would request 60 days and you would give them 30, just maps on to their judicial approaches.

Will: [laughs] Yeah.

Dan: Honestly, I thought that was pretty reasonable of him. Maybe there's something wrong with just automatically giving them all the time. There's nothing wrong with being so stingy, and maybe just being reasonable is actually the right way to do it. 

Will: When your students want extensions, do you grant them or do you split the difference?

Dan: It depends. It depends on the circumstances. I don't do that many-- I mostly do exam-based classes, so it doesn't come up. But I mean, people have to give reasons. You're supposed to give a reason, at least in your motion for extension of time, and usually--[crosstalk] 

Will: Right. But again, some people want-- yeah.

Dan: Sometimes, they're being used strategically too, to push the case off of a particular conference. You and I just had a little bit of an exchange about this the other day, because you sent me this older piece by John Elwood about looking at grants over the summer and the long conference and which distributions they came from, and then trying to game out whether it mattered, whether the newly hired clerks or there were outgoing clerks reviewed a petition, which is interesting. So, some savvy lawyers might use extensions to try to push the case beyond a certain conference to get the new clerks or get the-- [crosstalk] 

Will: Or sometimes you want to push it to a new presidential administration. Like if you think you want the SG to intervene and maybe if we can-- that doesn't happen all the time. But one other thought, I think the one other thing that Circuit Justices do, as I understand it, maybe this is just customary when the court appoints an amicus to defend the judgment below, like in this weird cases where the lower court does something that no party wants to defend, it seems to be the custom that that person is picked by the Circuit Justice of the Circuit. So, the 11th Circuit people get picked by Justice Thomas, and the Sixth Circuit people get picked for Justice Kagan, at least that they have different--[crosstalk] 

Dan: Yes. And they're often picking former clerks.

Will: And often, their own former clerks. If you're a former Justice Jackson's clerk, really trying to get your first argument, now's the time to move to Massachusetts, I think.

Dan: But you don't have to be--

Will: I guess that's right. 

Dan: You have to just get involved in a case coming out of that circuit.

Will: Well, you don't want to be too involved--[crosstalk]

Dan: No, you can't be involved in that. 

Will: There's developed expertise [crosstalk] the cases. 

Dan: You have no role in that case. 

Will: Yeah. Okay. Never mind. 

Dan: I think Kate Shaw had an article about this, looking at the practices of these appointments over the years and how many of them really are these kind of like-- I mean, basically handouts to--

Will: Patronage appointments.

Dan: Yeah, to former-- I'm trying to decide if 'patronage' was the right word there, but I think it works, former clerics. Have you ever gotten one of these?

Will: [laughs] Been invited by the court to argue--? [crosstalk] 

Dan: Yeah.

Will: No, I would have talked about it in the show.

Dan: But you're the kind of person who's going to be.

Will: I would be flattered. I would set aside all my work. 

Dan: You have a really good chance because the Chief Justice is the Circuit Justice for three Circuits. 

Will: That's true, but I'm not sure he--

Dan: Do you see Federal Circuit and Fourth Circuit?

Will: I don't think he likes me that much. 

Dan: You've said nothing but good things about him on the show if he's listening.

Will: I try. I think actually the Chief Justice got his first argument this way, is my memory, is that his very first argument was an appointment in a sort of pro bono criminal procedure case. 

Dan: That was before he went to the SG's office. We just took a break for Will to do some research. And it turns out that the thing he said was right, that John Roberts, his first argument was an appointment in a case called, was it United States v. Halper?

Will: That's right. A sort of complicated double jeopardy case. Double jeopardy, False Claims Act Medicare against Michael Dreeben.

Dan: Michael Dreeben got in trouble for the False Claims Act?

Will: No, he's the one who got people in trouble--[crosstalk] 

Dan: Ah, okay. He was the lawyer, so it wasn't like a case against him. So, I'm not going to get one of those because the Justice I clerked for has now left the court. So, I'm not holding my breath on one of those. Sometimes, they go to random law professors, but they're usually like people who teach at Harvard. But I do a good job, I think. Sometimes people don't do-- I've heard stories about people or professors getting these and then they don't make the best arguments because they don't agree with them. And it's like, well, your job isn't to just make your own theory. Your job is actually to make the most persuasive arguments for the court, I think, in that role.

Will: It is a weird-- since you're an amicus, but your client is the judgment, is that like a real attorney-client relationship where you're trying to zealously represent the judgment or is that--?

Dan: Your client is yourself, but you are the amicus. The caption of the brief and the lawyer name is you, but you've been told to argue in support of the judgment below. So, you have to make the best arguments, is the judgment below, right?

Will: Yes. No, I agree. I would do that.

Dan: Okay, so what else? Ginni Thomas testified before the January 6th Commission, Justice Thomas's wife. And I think the testimony as such is not currently public, but it was a five-hour closed door session, and we've heard some snippets have come out. It doesn't seem great. I think she said something along the lines of asserting that the 2020 election was fraudulent. So, continues to believe that, which is not great. It does not inspire confidence in our system that regardless of what you think, you shouldn't necessarily ascribe people's views to their spouses. I don't feel great about the fact that any one of our Justices seems to be married to somebody who's a crackpot. It's not great.

Will: I agree, although I think the number of crackpots in the country is not great. I wish this were rare.

Dan: I guess I would like that the people in the upper echelons of the halls of power, mixed sort of a metaphor or something, would be less likely to be surrounded by the crackpots.

Will: According to the various-- we don't know if these sources are accurate. But the sources seem to have said she read some sort of opening statement to the committee that was a flat statement that her husband has never spoken to her about pending cases at the court. It's an ironclad rule in her house. And she doesn't talk about her political work much to him, because he doesn't care about politics, and she's never practiced law. As I understand the statement, the law-politics divide is strictly observed in the Thomas household with Justice Thomas on the law side and Ginni Thomas on the politics side. I don't know if anybody believes that any more than they believe in the law-politics divide ever, but that's their story.

Dan: Yeah, that strikes me-- I don't know what to say about that.

Will: We have no knowledge of how the Thomas marriage works.

Dan: Yeah, I would like to read a transcript. I guess we won't ever get it like a recording, but maybe at some point we'll get a transcript. 

Will: Yeah. 

Dan: Okay. Other spicy, contentious Supreme Court stuff going on. Justice Alito.

Will: Talked to the Wall Street Journal?

Dan: Yeah, shot back at the critics who were questioning the Supreme Court's legitimacy. And what did he say? Do you have that [crosstalk] in front of you?

Will: Justice Alito said, "It goes without saying that everyone is free to express disagreement with our decisions and to criticize our reasoning as they see fit. But saying or implying that the court is becoming an illegitimate institution or questioning our integrity crosses an important line." This is apparently a statement of the Wall Street Journal. I can't figure out what question he was asked to produce this statement. So, this is being put in all the news stories as sort of in response to Justice Kagan suggesting that the court is losing its legitimacy, and Chief Justice Roberts saying that it shouldn't lose its legitimacy. I can't tell if he's talking back to Justice Kagan to the Wall Street Journal, or whether he was just asked some question about like, "Do you have a comment about the Supreme Court's legitimacy?", and he decided to say this, in which case, it's kind of anodyne.

Dan: Yeah, well, I'm not sure it's anodyne under any of those. But who is crossing the line, I guess, is the question. Does he think like just all people cross the line when they question the court's legitimacy? Because that strikes me as both wrong and-- [crosstalk] 

Will: I think it's right, that there's a line. I think it's one thing to disagree with the decisions and it crosses a line. Now, whether it's good or bad to cross the line, there are two kinds of critique. There's legitimacy critique and the decisions are wrong critique. And there is an important line between them. That's the part that seems anodyne. I think it's implied that if you're questioning the legitimacy side of the line, that's the bad side of the line that you shouldn't be on. But I don't think the statement-- maybe that's obvious, but--

Dan: It sounds sort of threatening though. It's like, "Well, you got a right to do this, but if you do that, you cross an important line."

Will: It's the vague kind of threatening. It's not like is unacceptable or is intolerable. It's just like, "You crossed a line." I mean, I think you can say this to Sam Moyn, and he'd be like, "You're damn right I crossed the line." 


Will: I'm trying to cross the line.

Dan: Yeah, it's pretty striking though, right?

Will: The genre is the more striking like-- it's just weird that the Justices don't usually come at this crap. So that he bothered to comment at all to the Wall Street Journal is striking, I think.

Dan: Yeah. I'm not super comfortable with the Justices hitting back at critics like this. It feels like an argument that you lose by participating in it. 

Will: Yes. [crosstalk] 

Dan: If you start getting in the media and be like, "No, we really are legitimate."

Will: I apologize to the Chief but do you remember during the Trump era when Trump started complaining about a district judge in [unintelligible [00:19:13] California who was assigned to, I think, it was cases about the wall or something, and he called them an Obama judge, and then the Chief Justice answered a comment from a reporter saying, "We have no Bush judges and no Obama judges. We're all just judges." 

Dan: Yep. 

Will: That was an example. Normally, Justices don't do that, and then Trump immediately sort of tweeting the Chief and it wasn't clear that--[crosstalk] 

Dan: That was not self-defeating though. I thought that was a good comment by the Chief. You thought that was self-defeating?

Will: Well, I think it is the same. I mean, maybe you just think comments by Alito are bad and comments by the Chief-- [crosstalk]

Dan: No, I don't think that's right. First of all, lots of things to say. One, there, you had a conservative Justice, sort of like publicly criticizing a Republican president, sort of counterpartisan. He's defending a democratic judge and he's saying like very anodyne stuff. Whereas like the Alito thing, who is a conservative judge defending his own turf from liberal critics and people in the political sphere, and he's doing so in like a menacing way, I don't know. I feel like the public reaction to Roberts was mostly was not as controversial as that to this.

Will: Well, everybody likes Roberts more than Alito. The similarity is like, "Supreme Court Justice says Supreme Court is not political in response to politician." [Dan laughs] It's sort of one of those conversations that's hard to win. In the same way that like, "Justice Alito says Supreme Court is legitimate in response to people who say Supreme Court is illegitimate." It's one of those like, "Of course, you'd say that. How does it help us?"

Dan: Yeah. He has a beard now. 

Will: Sorry?

Dan: These remarks he gave earlier in the summer, where he was making fun of foreign leaders who had criticized his Dobbs decision-- [crosstalk] yeah, and saying that Boris Johnson lost because he criticized-- it was actually funny, but it was a little bit unusual, maybe crossing an important line. And he had a beard during those remarks. I don't know, is he like a beard guy now?

Will: Maybe it's a pandemic beard.

Dan: It's like, "I did what I came here to do. I overturned Roe. Now, it's beard time." Just let loose. Alito unleashed, which is quite scary to me.

Will: Yeah. There was that Scalia beard for a year or two.

Dan: Yeah, I don't know what that was about either. Okay, should we do talk about this [crosstalk] stuff that's like a case?

Will: Yeah. Do you know what we want to talk about? 

Dan: [crosstalk] -offer some expertise. So, we got this Pork case, which I was only dimly aware of until you told me that we should talk about it yesterday. And now I'm aware of it and I've read some stuff.

Will: If you judged Supreme Court cases by the number of times they've been discussed at the University of Chicago roundtable where we have lunch, this would be the most important Supreme Court case of the term and maybe of the past, like several years. 

Dan: Well, this one is of very high interest to academics. So, this case is called National Pork Producers Council v. Ross. National Pork Producers Council is an industry trade group for the folks who produce pork, as the name might suggest. I've learned a bit more about the pork industry than I really wanted to. I'm probably not going to eat pork for a little bit after this. This is super interesting. I have no handle on what the answer should be here, what even the right analytical structure is. I think like nobody does as far as I can tell from reading the briefs. What's going on here is state of California, our biggest most populous state-- it's the most populous. Is it the biggest by landmass? 

Will: Alaska.

Dan: Alaska. Right. Alaska is the biggest. California, our most populous state, by citizen initiative, passed something called Proposition 12. And Proposition 12, it's designed to be like an anti-animal cruelty bill. What it does, I think it imposes some rules that govern raising pork, raising pigs in the state of California. But apparently, there's just very few. That's just not a thing that people do in California, for whatever reason. It's not pig central, but almost all pork production happens elsewhere. So, it also has this requirement about pork sold in California. So, it makes it a crime and civil violation to sell pork in California unless the pig that it is, the former pig, was born to a sow, is that what you say, sow? 

Will: I think so. 

Dan: Adult female pig, housed with 24 square feet of space in an enclosure that let her turn around without touching the enclosure. As I understand, this is aimed at eliminating these -- what's the word for them that--

Will: Factory farms.

Dan: No, not factory, but for the things. Like breeding pens, birthing cages? I forget the word. It's in the brief somewhere. That's California. Normally, states can say what you can sell there or not. But this is actually a big deal, and it's a big deal outside of California. So, why is that?

Will: Why is it a big deal outside of California? 

Dan: Yeah. We're still setting the stage. 

Will: Yeah. All the pigs come from Iowa or places like that, where they don't have the same restrictions. If this law passes, given the California is one of the major parts of the market and given that--[crosstalk] 

Dan: Or did pass, or even if it like passes constitutional-- [crosstalk] 

Will: Yeah, if it's upheld, given that pigs are also sold in parts, it practically would be very hard for other states to avoid complying with this law. 

Dan: Well, that's the argument. 

Will: Right.

Dan: That's actually disputed in this case. But the argument of the pork producers is-- some people might have heard the phrase the "California effect," which is if California, our most populous state, regulates some product in X way, then the rest of the country will have to follow suit, because it's too complicated to make California-specific products and not for the other states. And the argument is, now this was going to change the pork industry all over the country and can have all these economic consequences.

Will: Yes. 

Dan: And so, people are mad about that. The pork producers are mad.

Will: But the legal question is whether California has the power to regulate pork sold in California, right?

Dan: Well, that's one way to phrase it. Another way that the petitioners here, the pork crew want to phrase it, is does California have the power to regulate pork production outside the state of California?

Will: Right, because they're regulating the sale of pork in California, but based on how it was produced outside of California. So, this is one of these great law professor hypos. If you think California can't regulate the production of pork in Iowa, that's not their business and we can get back to whether that's actually true. But if we assume that California can regulate what's sold in California, then how do you draw the line between a regulation of Iowa farming versus a regulation of California sales? Right?

Dan: Yeah, and the reason why this might be a problem is the so-called Dormant Commerce Clause. Sometimes, they call it Negative Commerce Clause. There's some other phrases.

Will: That clause is not in my Constitution, Dan. Is it in yours?

Dan: It's maybe like a bracketed footnote. So, the idea being that Constitution gives Congress the power to regulate interstate commerce. And so, by implication, states like that power. And the states can't do anything that interferes with interstate commerce. And there are, I think, some pretty clear examples of things that people traditionally have thought to be covered by this, like states just can't set up on the border and be like, "You have to pay a tariff anytime to bring certain kinds of products through our state, through New Jersey on the way to New York," that's probably not okay, right?

Will: Yes. Although it's not clear you need the Dormant Commerce Clause to tell you that's not okay. One of things that’s controversial, there are several Justices in the court, at least Justice Thomas, maybe Justice Gorsuch, who don't believe in this whole thing. And one thing they would say is there are a bunch of other clauses of the Constitution, like a ban on imports and export, that states can have duties on imports and exports and states have to respect the privileges or immunities of citizens of other states, that if we took those seriously would take care of all these hypos. That's not the way the doctrine has progressed. The doctrine has put these under the Commerce Clause for 22 years. So, we don't really have a fully worked out, like all history doctrine for how those things would work. 

Dan: Yeah. 

Will: The other thing that's weird about this idea is that when the Commerce Clause was limited to commerce between the states, it makes sense. I think there's like a negative version. There's a part of commerce that Congress can regulate, other parts for the states and whatever the line is, one part goes to Congress, one part goes to the states. Now, Congress' power over interstate commerce has been expanded to include almost everything, almost everything Congress does is--

Dan: Involving like money or--

Will: Involving wheat, involving any federal criminal law. The ban on possession of guns near schools is based on the Commerce Clause out of the theory that if the gun was--[crosstalk] 

Dan: That’s not upheld though.

Will: Well, Congress amended the statute, after Lopez to say--

Dan: To add a hook.

Will: To add a hook. If the gun once traveled in interstate commerce, the Congress could regulate it. If that's the theory, then a strong negative Commerce Clause would say, "Well, states can't regulate any gun that ever passed an interstate commerce because Congress can." So, we now don't really have this idea of Congress' power implies a negative state power.

Dan: Yeah, either one of those two things are wrong or there must be some overlapping sphere of authority.

Will: Right. But we still have some sense that, yeah, there's a lot of doctrine within Dormant Commerce Clause and limits of what states can do to interstate commerce. And then, the doctrine is already messy. Famously, people complain it about a lot. And then, the messiest prong of the doctrine, easiest prong of the doctrine is where the state sort of explicitly discriminates against out of state commerce, south of the border and says, "No, no foreign commerce." There's a sort of messier prong where there's a balancing task so they don't formally do that but if you're out there doing it-- and that's one of the agreements in the case, but the messiest prong is three cases where the court has specifically said that laws that effectively regulate extraterritorially via the Dormant Commerce Clause. But what that means and how we draw the line to what counts as extraterritorial is weird. And why the Dormant Commerce Clause cares about extraterritoriality is weird. So, this is actually one of the great cases the courts to take, because they can actually clear up a ton of confused Dormant Commerce Clause doctrine.

Dan: Yeah. The folks who would just jettison this-- so, Thomas would definitely just jettison this. Gorsuch, same or a little bit more-- is he a little bit more--?

Will: I believe he would also jettison it. He joined one of Justice Thomas' opinions in Tennessee Wine and Spirits v. Thomas. He actually wrote the dissent. So, it's complicated because it's an alcohol case and alcohol has its own special rules. 

Dan: [crosstalk] -21st Amendment, right? 

Will: Yeah. So, I believe that puts him in the skeptical category, but I haven't gone through to carefully figure out whether it's only for alcohol, or-- so we could put them both in the skeptical category.

Dan: And then, maybe a little bit less information about some of the other newer conservatives. 

Will: Right. 

Dan: My sense is that Chief Justice Roberts believes this is a thing.

Will: I think he's applied it, but I think since Kavanaugh and Barrett are in the court, I don't think there's been a major Dormant Commerce Clause case given their more moderate views on precedent and on other non-textual doctrines. I don't know. Yeah, you could imagine different possibilities.

Dan: Yeah. Probably not going to get rid of this whole thing in this case, but might clarify it, limit it. I can say, I don't really know what to make of all of this. Maybe start at the bottom line. I think that the law should probably be upheld. That's where I land. Where do you land on this? Then, we can try to reason backwards.

Will: I don't even know if I know. 

Dan: Not even there. 

Will: I'm going to with probably the law should be upheld.

Dan: This one is interesting, because I think that there are some ideological stakes in Dormant Commerce Clause cases, it does seem like at least the Conservatives are more skeptical. But maybe that's just methodological. This one, I'm not totally clear what the ideological stakes of this case. I think it produced some weird, strange bedfellows. What were you going to say?

Will: I take it the sort of the first level political analysis is industry and big business is on the petitioner side, and liberal regulation is on California side.

Dan: So, I chose the side I was supposed to choose. 

Will: Yes. But then, with the exception this is one of the cases where Justice Thomas bends around the end, because he doesn't believe in the doctrine. And I think of the Dormant Commerce Clause challenges brought in the real world, I think a huge number of them are brought by businesses and industry. So, I think sort of like federal preemption in that sense, it's an area where--

Dan: Yeah. The thing I really want is free travel for alcohol. I know we've got the 21st Amendment stuff to deal with there too. I should be able to order booze from anywhere in the country. It will come in the mail, no restrictions. 

Will: Well, you got Granholm v. Heald.

Dan: Yeah, that helped. I think it didn't get all the way to the world I want. 

Will: My dad used to litigate those cases. 

Dan: Oh, really, because he was a big wine guy.

Will: He's a big wine guy in Indiana, which does not have a big wine industry.

Dan: Ah.

Will: But worse, it has a small wine industry. So, it has a lot of that's trying to stop you from ordering wine to California to force you to instead drink Indiana wine.

Dan: Which is probably really bad. 

Will: And actually, he argued one of the cases in Seventh Circuit, and then he was the plaintiff in another one of the Seventh Circuit cases that-- actually the cert petition in that case was filed the year I was clerking. So, you know how-- the court clerks were like, " Baude v. Heath, that's a funny coincidence. What do you think?" And I was like, "Oh, I really can't talk about this case. I was recused from this case as possible to be."

Dan: What was the outcome?

Will: So basically, in Granholm, the first Supreme Court case, the Supreme Court said states can't have discriminatory laws against alcohol. If you let the Indiana wineries ship people wine, you have to let the California wine ship people wine. So, after that, Indiana did a bunch of clever workarounds, one of which was upheld in Seventh Circuit, one of which was struck down. So, one of the clever workarounds was to say, "You can't ship wine to Indiana unless you have a brick-and-mortar business in Indiana." And Seven Circuit said, "No, you can't do that." But when that was upheld, they said, "You can't ship wine to Indiana unless the customer has been to your winery in person and presented their ID in person so you could check that they were over 21." That is a burden on both Indiana wineries and California wineries. But, of course, California wineries are farther away. And the court said, "Well, it's just sort of a disparate impact. So, that's okay."

Dan: What would you expect from Hoosiers?

Will: Yeah, but you don't care about interstate pork. You can get good pork anyway. So, you don't, you-- [crosstalk]

Dan: Yeah, and I don't even want it. There's some pretty graphic stuff about how pigs are kept and it's just even the pork brief is more graphic than I really felt comfortable with, talking about how like one pig gets like sliced up and sent 20 different ways all over-- it's just like--

Will: Yeah.

Dan: I read the main briefs in the case, and I think you did as well. I read the petitioners' brief, the blue brief for the Pork Council. It was weirdly law free. They talked about the big cases, but I didn't think it like built up the doctrine from first principles and made more just practical economic arguments.

Will: I think that's fair. That is partly to their credit, and that's partly following the court's lead. If you've read the cases, it's not they have a lot of law or explain where they're coming from either. Maybe there are-- [crosstalk] 

Dan: Yeah, but to the extent that there are new Justices, and you're trying to get them on board for--[crosstalk] 

Will: Yeah. I do think this is unsatisfying. I think part of the reason it's so satisfying is, there's this deep intuition as a matter of first principles that, of course, there's some sort of territoriality between California and other states. And like, of course, California can't just directly announce, "Here's the new law of Iowa." But why that's true and what it has to do with the Dormant Commerce Clause is already weird.

Dan: Yeah. Because it seems like California shouldn’t be able to do that whether it's commerce regulation or anything else, right? 

Will: Right. 

Dan: They shouldn't be able to punish assaults that occur in Iowa, involving Iowans with no nexus to California, right?

Will: Right, exactly. That's the other thing about the ideological stakes in this case, by the way, is that the other extraterritoriality issue that the Supreme Court has heard of recently and must know is out there in the world is the abortion extraterritoriality issue, where the politics are the opposite, where California's power over Iowa would become Texas' power over Illinois, and everybody [unintelligible 00:37:06]. It's nice that's considered here and then, presumably, they'll be [crosstalk] there. 

Dan: What this law doesn't do is, it doesn't say it's a crime to drive to Nevada and eat pork there. It doesn't say it's a crime to give people money to drive to Nevada and eat pork there. It's saying that pork that was made in this way, you just can't sell here. It's much less extraterritorial than some things that we could be talking about.

Will: Although again, the weird thing about the law is that when you look at the pork crossing state lines, you can't even tell by looking at it, or frankly, even by any amount of scientific tests you could do on it, whether it's good pork or bad pork, legal pork or illegal pork. The only way you can know whether it's legal or illegal pork is to know where it came from. The obvious extrapolation of this, if California can do this, could they say, "Nobody could ship any goods to California, unless they are manufactured in the state that has abortion legal on demand." There's nothing to just say, like, "We want the goods to be made in certain states with certain rights and not others," that seems like it's obviously an attempt to extraterritorially import California's abortion laws. There's less of-- maybe it's an extension from this case, but it raises the same principle, which is why this one's a little bit--[crosstalk] 

Dan: It's definitely different because it ties it specifically to the state having certain kinds of laws, rather than saying, like, "You can only sell stuff that's been prepared in this way." Right? 

Will: Right. Yeah, so maybe you could start with, you have to pay your workers the California minimum wage. So, you've repaired both cruelty free-- not free, but reduced cruelty for the pork, reduce cruelty for the pork workers, so on.

Dan: Yeah. But you can imagine any number of other examples where it's like California just has some regulation on the ingredients that can be in things labeled certain ways. Like the ingredients that can be in chocolate has to be 66%, whatever, some percentage cacao. And then it's like, well, all of a sudden, is that an extraterritorial application because people who are making chocolate in other states have to make it to a certain specification? That doesn't seem right.

Will: I think that's right. Or even just a matter in California just says like, "You can't sell pork in California at all." I think there is litigation about a lot of states and maybe now the federal government have a ban on selling horse meat for consumption. That was another one of these California propositions because Robert Redford really likes horses and he put in a lot of money on [unintelligible 00:39:38] proposition. I think there were Dormant Commerce Clause challenges by the small horse [crosstalk] industry.

Dan: Who are these people? Who would be shameless enough to bring that? 

Will: There's some cases about it.

Dan: Have you eaten horse?

Will: Not to my knowledge. Not on purpose.

Dan: I have a little bit.

Will: Really.

Dan: In Uzbekistan.

Will: How was it? 

Dan: It was not very good. I wasn't excited about it, but we were trying to go find a place that would serve plov which is Uzbek's plov dish with rice and meat. We had some and it was really good, but then we went to another place, and they served it but they served it with like horse sausage, which was not my favorite. 

Will: But California could totally ban the consumption of horse and it could take--

Dan: Could they criminally punish me for doing that in Uzbekistan? 

Will: No, but they could say you can't bring horse into California because nobody could serve horse in California. And yes, that will have the indirect effect of saying, "Stop farming horses if you want to sell them in California," and that'd be fine. Can I say one thing that irritated me about the briefs, [unintelligible 00:40:34] with the briefs, more generally, including all the amicus briefs?

Dan: You read all the amicus briefs?

Will: I word searched them.

Dan: There's 50 on each side.

Will: This is not the first time this problem has come up in the law. In the early 20th century, we had a lot of fights about the regulation of child labor, and before that of prison labor, especially in the era when southern states were using prison labor to basically evade the 13th Amendment. So, extensive convict labor looked a lot like slavery, and lots of states were uncomfortable with it. So, there were questions about whether states could ban the importation of goods made using prison labor, which I think is a much closer analogy. Again, you look at the good, it's not like the good has a certain amount of cacao in it. Like the chair is the same chair, regardless of how it was made. But there's something about the way the good was made that makes the state disapprove of it and not allowed to be for sale in that state, that's sort of a regulation will happen the other state. 

There are cases about this, most famously Kentucky Whip & Collar Co. v. Illinois Central Railroad Company and Whitfield v. Ohio. It's a complicated setting, because there were some federal statutes enacted. Like when the states were doing this, there were questions whether they could do it. So, Congress enacted a statute clearly saying they could do it, which is exactly what the Dormant Commerce Clause has asked Congress to do, is if you want to allow states to regulate interstate commerce, you should pass legislation. But in one of the cases, Whitfield v. Ohio, the court talks about the specific question of whether or not the state of Ohio can ban the sale of convict-made goods in Ohio based on the fact how they're made in Alabama. It says yes, it could unless they were in the original package, in which case it couldn't. But then Congress regulates, so the original package comes in. These cases are not cited. So, I Shepardize them. The cases are not cited in any brief in the case at all. None of these historians who are supposed to help the court context like--

Dan: It's bizarre. Why? You're the only person who knows these cases, how do you know these cases?

Will: I found them because I wanted to see how the court treated the earlier era. I just typed, whatever, child labor and import, the right words. I started following the thread, because when Congress passed the Fair Labor Standards Act regulating child labor, they dealt with this problem. And so, I just spent 10 minutes reading about it and remembered the contract labor problem. And so, I went back and looked at it. And Kentucky Whip & Collar is extensively cited in Congress, as they're debating Dormant Commerce Clause principles. Maybe the problem is nobody wants to cite them, because it's actually not clear who they help, because they come from a slightly different context and we don't have the original package doctrine anymore. If you actually want to think through it, it's not like--

Dan: Were those Commerce Clause cases? 

Will: Commerce and Dormant Commerce Clause cases, because they both have to deal with what's the state power, and then what happens when Congress steps in and how they work together. So, I think if you've sent these cases, maybe if you're an associate and found these cases, the National Pork Producers, they'd be like, "Ah, I'm not sure if that helps us. Let's stick to our economic theory." But you think there'd be some--

Dan: Yeah, there's a lot of briefs in this case. That is weird. 

Will: So hopefully, some Gorsuch clerk has found them.

Dan: They will now.

Will: Somebody ought to look at them. And again, this is a major episode in American history. It's a little weird that we're acting like it is a totally new problem. Except that we never really solved it. In that sense, it's like alcohol where we had tons in interstate commerce debates like this over alcohol. We had all these cases about can you stop them from shipping the alcohol through your state? Or, what if the train moves it from one to another? What if it's in the original package? What if they break the bulk? The cases were just a mess, and then we did Prohibition and undid it, so we just never really figured it out. But I think that's the world we're in again. I think pork is the new alcohol.

Dan: I think so. Okay, talking about the briefs a little bit more, some interesting things going on here. So, I liked one of the briefs, I think, a bit more maybe than you did because you found them all not helpful.

Will: Yeah, you tried to sell me on this. 

Dan: I liked this brief by the Humane Society. I think they're the intervenors below, and so they're one of the respondents, in addition to the state of California is also respondent. So, we have two red respondent briefs in this case, but this one was filed by a set of people. The most well known in terms of Supreme Court litigation, I think is Jeff Lamken of MoloLamken in DC with the counsel record is Bruce Wagman of Riley Safer Holmes & Cancila LLP in San Francisco. 

Will: Which one of them is going to argue? 

Dan: I don't know, I haven't looked at the hearing list. Maybe we can look at that in a second. I thought this was a strong brief. It had a lot of sharp language, and nothing that crossed an important line, as we say, in the business, but I thought it really called out a bunch of the arguments that the petitioners were making and showed how they don't make sense or how they lead to crazy results. And I thought it did a few things well. One is it at least gestured towards building things up from first principles. It did more in terms of history, you might not have liked the history but at least tried there. And then, it a lot of engaging with academic writing and get cited like a dozen, two dozen law review articles by really smart people--

Will: You like that?

Dan: No, I don’t. I don't want to rather than cite law review articles by dumb people like me, but I do like it when they try. And also, I just thought hit back in some ways that were strategically smart. Like the petitioner, the pork people, try to paint this law as dumb, because it's regulating other states based on moral objections rather than economic, which is the only thing that matters. And this brief did a good job of being like, "Well, look at every world religion has regulated food consumption, and the way in which like meat is processed and consumed," which I thought was nicely done, because it's obviously going to appeal to the more religious liberty focused Justices, at least atmospherically. So, I thought it was really good brief. What was missing other than Kentucky Whip & Collar? 

Will: Well, I feel it's very negative. If you think you win the case-- and obviously, the other respondents, if you win the case by shooting down the petitioners' theory, certainly, they have a theory of how they should strike this down but--

Dan: The posture in the case is that the suit has been dismissed at an early stage. And the question is whether it should be allowed to go forward.

Will: Right. If you think that you're in the district court or something, are you just trying to say, like, "Hey, they've got a theory of the case. And the theory of the case doesn't work. So, we should win." I get that. But if you think it's like the Supreme Court is confronting a long running problem that it knows is going to come up again. And so, you need to sell them on a theory, even a negative theory, so that they know that ruling for you isn't going to lead to weird results later. And other place this comes up a lot is the internet, and to what extent can states regulate things on the internet, which often have the same kind of extraerritoriality problem where like, technically, I'm only regulating the receipt of tweets in Texas, but there's an obvious effect on the sending of tweets of other places. And the court is smart enough to know that's a problem, and to need not just to know that the petitioner's brief doesn't work, but to have a theory of how they should think about this. 

Dan: Yeah, I thought it did some of that, and that it just tried to paint all the cases as being about protectionism and discrimination. And I think that does--

Will: As you understand it, can California ban Twitter in California? 

Dan: Could they ban people from using it?

Will: Yeah. Or even ban the sending of tweets to California, ban the importation of tweets to California?

Dan: Putting aside all the First Amendment stuff? 

Will: Sure. 

Dan: Right. I don't see why not. If they could ban pork altogether, why couldn't they ban--? 

Will: Yeah. And doesn't that make it really hard to run Twitter? You don't even know where your users aren't necessarily.

Dan: That could be, but there's lots of things that are hard and--[crosstalk] 

Will: Fine. But that seems like a problem for them. [crosstalk] 

Dan: There's different questions here though. Could they make it illegal to use Twitter? And then, who can they enforce that against? So, could they punish Twitter for just having their service that is accessed by people in California or do they have to focus their enforcement efforts on users in California?

Will: California regularly lets you sue out-of-state manufacturers for sending things into California permissibly. So, you get personal jurisdiction-- like International Shoe was literally about this. I think that's Washington. So, presumably, California could allow civil lawsuits against. I mean, Twitter's in California, so maybe we can make it Texas.

Dan: But then, they'd have to potentially get that enforced in other jurisdictions. Twitter is a California-based company, so they'd have to flee to Texas.

Will: Have Texas ban Twitter, that’s more likely.

Dan: Yeah. And mandate people use Truth Social.

Will: I guess, what I mean is this is the obvious can of worms you open by rejecting any extraterritoriality or any strong extraterritoriality doctrine into Dormant Commerce Clause. I think probably that's the right answer. But if I were the court, I wouldn't be satisfied until I had a general story about this. Another option that friend of the show, Jack Goldsmith, has written about. I think he and Eugene Volokh have a pending article on Dormant Commerce Clause. He has another article on pork case that people should read. So, maybe we'd say, "Look, actually Twitter can figure out where you are," because the internet is very good at geolocation. So it's not that hard for Twitter to press a button saying like, "No tweets to Texas," and that would work. 

Dan: People can get around that with VPNs and things.

Will: Right, and maybe that'll be the rule, as long as--

Dan: Make a reasonable effort or something. 

Will: Yeah, something that the senator can comply with, that okay. But just these quickly get-- I mean, it's good lawyering, I guess.

Dan: This seems more like practical issues than issues that should control what the power of the state is. I don't know. I agree that--

Will: Spoken like a true formalist.

Dan: Yeah, no, but I just agree that it would be messy. It's hard to know exactly how to operationalize it if a state wants to ban certain kinds of internet content from reaching its users in the state. But that's a separate question of how exactly it's going to work and when it's appropriate, who it's appropriate to put those burdens on is different from--

Will: Maybe we're on the same page. But that's the thing I find unsatisfying so far about the briefs and that's the thing that hopefully gets hashed out in argument. When you have the response at brief, you obviously don’t want to say, "Now, look, let me anticipate for you a bunch of tough hypos you're going to give us and let me give you our best answers." And obviously, maybe you can just say, "Yep, state regulation of the internet's going to be a mess until Congress preamps it," or maybe you just have something else to say. 

Dan: And Jeff Lamken is arguing for the Humane Society, by the way. So, he's going to do a good job. 

Will: They get divided argument. 

Dan: Yes. There's actually four advocates in the case, because this is something I want to talk about next. But we've got petitioners. And then you've got Edwin Kneedler on behalf of the Department of Justice as amicus curiae on one side, and then we have two respondents. We have Michael Mongan, who's the California SG, and Jeff Lamken. 

Sometimes when there's like multiple parties, the court makes them pick, but I think when maybe it's when it's a state and then a private party, it doesn't work that way and both get to argue.

Will: That's interesting. 

Dan: I'm not sure, but sometimes they just say, "You have to pick or we're going to pick. You can't have divided argument between two different parties." That flags me that I think I was going to ask, is the SG's office is on the side of Pork. And I don't really know why. I mean, I don't really know why-- I'm not saying I think they should clearly be on the other side. But I don't totally know what the considerations are that led them to go in one direction versus the other. What do you think? 

Will: Well, it's interesting. They're on the side of Pork, but they're not on the side of extraterritoriality. This is like a classic-- this is like an old John of SG's briefs where it's a complicated case, and we come in with either a middle path or a path that's more modest when you get there, in the sense are agreeing with the Lamken brief that we shouldn't think of this as an extraterritoriality case, this is a normal case. But they also don't want to concede to open up the can of worms to the full California effect. So, they want to decide all of this under a balancing test.

A balancing test, they did not invent. A balancing test that Supreme Court articulated once in a case called Pike, usually the rational basis test of Dormant Commerce Clause doctrine. In theory, you ask, does the state have a sufficiently good reason for doing this, given that burden is commerce, but in practice, you almost always lose these cases when you're challenging the law. And then, that's the federal interest, in the sense that they don't necessarily want to dramatically change what the states can do, open up a whole set of new can of worms. But they also want to have a way to say when the states regulate the internet in some way that that really bothers them, like, "Ah, this just goes too far." And they're pretty happy having the federal courts just get to exercise like this "goes too far" button.

Dan: Yeah. I guess the greater the scope of the Dormant Commerce Clause, the greater federal authority is, because the states can't do as much. And Congress can let them do it or not, if it wants to.

Will: Yeah. And because this is another SG move. I think it takes advantage of the procedural posture of the case, this is still the motion to dismiss stage. So, I think their position in the brief is, there is a balancing test. Petitioners plausibly allege that the law fails the balancing test. So, I think they could still reserve the right to later come into this case and even uphold the law to say like, "Let the district court find out how bad is this going to be for Iowa and how good is it going to be for California." So, I could say that will be attractive to some of the Justices. Methodologically, it's a tough sell, I think, for a lot of the more conservative Justices, because this is the least easy to justify part of the Dormant Commerce Clause doctrine.

Dan: Because it's kind of a fuzzy balancing test?

Will: Right. Yeah, it's one thing to say there's a line or the states can't discriminate, but to just say, like, "Federal courts should decide which state laws have a sufficiently good purpose in light of their other effects." I mean, that sounds like--[crosstalk] 

Dan: Yeah. 

Will: But good luck, not bad luck.

Dan: I look quickly at some of the amicus briefs to try to see if there's anything in there that could help me understand it. There was an interesting one. So, I found interesting this brief of Professors Michael Knoll and Ruth Mason as amicus curiae supporting petitioners, because they offered a slightly different way of thinking about these cases. Their argument is what matters in looking at the cases is whether the law in question is internally inconsistent.

Will: What's that mean?

Dan: In this context, what it means is, does the state law do something such that if every state-- they actually referenced the Kantian categorical imperative in the brief. If every state did it, there would be conflicting regulation. And so, they say yes, because California is regulating the production of pork in its state, but also sale, which has implications for the production of pork elsewhere. And if everybody did that, there would be these conflicting regulations, where state one is regulating the production of pork in its state, but also, state two is regulating the pork of production in the state. And so, that's the problem and that's the key. And this sort of made sense to me, but then I got a little deeper into it and they said, "Look, any given state can choose one or the other. It can regulate production or sale." But then, I think you still end up with the conflict problem, because if state one can choose to regulate either production or sale, and it regulates sale, and therefore indirectly regulates production in the other state, and then the other state chooses to regulate production, don't you still have the same problem?

Will: You do. It's a Kantian theory, not like a practical theory. And you could think of it as at least like-- this comes from how the court deals with some of the taxation cases. They derive this from interstate taxation cases, maybe you said that, that you could think this is at least like an outside limit, that you definitely shouldn't let a state adopt a regulation that wouldn't work if everybody did it. Now, what do you do if there are two choices, and either one would work if everybody did it, for right now, some states do it one way and some states do the other way. This method seems to say like, "Well, that's going to be messy, but at least the states are doing something principled. It's not their fault that other states aren't doing it the right way." I guess the idea is that at least that we're in the realm, we could imagine the states could eventually coordinate on the right way to do it or negotiate. But I agree, it's a little unsatisfying. 

Dan: Yeah.

Will: It has a deeper connection to the extraterritoriality thing too in the sense that under the classical legal tradition, or the principles of natural law, or whatever, there are two different theories for how states regulate, one of which is very territorial. It's like states regulate within their borders, whoever's in their borders, they regulate that. And the other one of which is very citizenship-based. States regulate their people, wherever their people are. And both of those pass sort of internal inconsistency test, but, of course, some traditions and jurisdictions focus more than one and some focus more on than the other. So, you end up with inconsistencies. So, I guess I find it similarly unsatisfying.

Dan: Yeah.

Will: But again, this is the court's fault. It's not their fault. They're trying.

Dan: Yeah. So, I don't know. We could keep going on this. I don't know if we've made any progress.

Will: Well, can we do at least a prediction? If we don't know what should happen, do we know what will happen?

Dan: My guess is the California law will be upheld. 

Will: Really? 

Dan: You think it's going to be struck down?

Will: I'm not saying that yet, but I'm just wondering how you [unintelligible [00:58:34].

Dan: Well, let's start off with, we've got a couple Justices who are deep skeptics of this doctrine--[crosstalk] 

Will: Yeah. Let's give Thomas and Gorsuch to California.

Dan: Then, you've got to at least think there's a decent chance of getting some number of the liberal Justices, right? 

Will: Because they like--

Dan: You said ideologically, that's the framing.

Will: Yeah, okay.

Dan: But at least some chance, maybe not. And then, I don't know, there's some like-- it's not so ideological that clearly all the others are going to be in favor of Pork. Like there's some decent arguments here. I just thought that the slippery slope arguments were a lot harder for the petitioner because the petitioner basically just says like something violates the Dormant Commerce Clause if it has a big economic impact on other states. And that can't be right.

Will: I mean, it can be if it's big enough, that's the Pike theory. My gut instinct is that you're right, but the fact that the court granted the case at all makes me thankful probably. 

Dan: Yes.

Will: Especially this is not like an area where the circuit split is so sharp that the court really had to step in. This is an area there has been a bunch of petitions raising this kind of question for like gasoline and ethanol. So, something must have caused them to think, "Okay, this is the one worth getting into." Now, sometimes that's four people in search of a dream. Sometimes, it's just like, "Okay, let's take the case. It's interesting problem," or whatever. But that makes me second guess my gut instinct and think, maybe we're going to just get some weird fractured 7-2 balancing test thing. 

Dan: Yeah. Ideologically, I'm sure some of the Conservatives don't like this idea that California just gets to set policy for the whole country. Generally, I think California is too trigger happy with regulation.

Will: Right. And if you're the Supreme Court, maybe you think like, "Look, it's our slippery slope. So, we can say something, and we can stop it from going all the way down."

Dan: Yeah, maybe they just really like cheap pork. I don't know.

Will: [laughs] I don't live in California. I guess they care about importing it from somewhere else. Yeah. I think this is tricky, both what the other should be and what the-- which is probably reasonable to talk about it, even if our analysis is unsatisfying.

Dan: It's one where I feel like-- I spent a couple hours reading stuff. I feel like this would take me like a week of going back and reading all the cases and thinking about it, and to get to a place where I really understood what was going on. And I'm not going to do that. Maybe someday I will do that. If I write an article about this degree of law, but I'm not there yet.

Will: Maybe my hope, which I don't predict at all, is that this will maybe cause the court to resurrect the original package doctrine, which is what they used back in those old cases that's complaining about the court ignoring, which on the one hand was so totally ridiculous and proved unworkable, but was one of the best legal fictions of the early 20th century.

Dan: And how would that apply here?

Will: I think then California would be able to regulate the pork. Basically, you could ship the pork from Iowa to California. But then at some point, it entered stream of commerce in California and California could regulate it. So, it might actually both probably mostly be a de facto win for the state but be a little more complicated. 

Dan: Right. So, you are not making a prediction or you are predicting that I'm wrong, or what?

Will: I'm predicting the you're wrong. I won't limp out. I predict that the law's going to be struck down on unsatisfying grounds.

Dan: Yeah. Okay. I didn't have a very strong view about it. Okay, so lots more happening, the sitting, that's all we're going to talk about this time. We will maybe circle back if anything interesting happens in one of the other cases' arguments. But got to keep it unpredictable. So, that's where we're going to stop.

[Divided Argument theme playing]

Will: Thanks for listening. Thanks to the Constitutional Law Institute for sponsoring all of our endeavors. Thanks for the reviews and comments you've been leaving online or sending to us. And please keep listening to the show.

Dan: And remember, you can email us at pod@dividedargument.com. Or you can call our voicemail line at 314-649-3790 and leave us a message. We do read and listen to all those. We're not great-- not responding, but we do pay attention to them. And we will occasionally play a voicemail on the show. Go to our website, dividedargument.com. We've got transcripts of the episodes that go up pretty shortly after the episodes air. store.dividedargument.com, we've got some good merchandise. And if there's a long delay between this episode and our next one, it's because we've been subjected to extraterritorial jurisdiction.

Will: It's better than a bacon joke.

[Divided Argument theme playing]


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