Douglas A. Kysar, “State Public Morality Regulation and the Dormant Commerce Clause” (Yale Law School, 2023)

July 3, 2023

Unlike other high-profile cases decided by the Supreme Court in its just-concluded term, granting of certiorari in National Pork Producers Council v. Ross did not immediately portend what the outcome of the case would be. At issue was the constitutionality of California’s Proposition 12, which bans the sale in California of whole pork meat from animals confined in a manner contrary to certain standards said by the state to promote animal welfare and human health and safety. Critically, Proposition 12 applies irrespective of whether meat products sold in California derived from animals raised in a different state. This article uses the badly fractured opinions in the case as a platform for exploring the Dormant Commerce Clause issues raised as well as the larger political economy implications of state level public morality regulation in an era of national political division and dysfunction.

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