Commerce in the Balance

Abstract

In 2018, California passed a law prohibiting the in-state sale of any pork that was raised inhumanely. This law was quickly challenged by the pork industry on the grounds that it unduly burdened interstate commerce under the Supreme Court’s Pike balancing test. In a fractured decision that pitted animal welfare concerns against the economic interests of out-of-state pork producers, the Supreme Court upheld California’s animal welfare law. Justice Neil Gorsuch, writing for a plurality of the Court, invoked a common objection to Pike balancing: It requires the impossible—the balancing of incommensurable goods (here, animal welfare and economic benefits). As Justice Scalia once quipped, Pike balancing is like asking whether a particular line is longer than a particular rock is heavy. But I argue that invoking “incommensurability” as a reason to reject Pike says far too much. It implicitly weighs in on a highly contentious debate in moral theory about the incommensurability of different values. And it implies that much state legislation is arbitrary. I argue that there is a better reason to reject Pike’s balancing test. The real problem with Pike is that it undermines a state’s ability to choose among otherwise constitutionally permitted moral frameworks. Nothing about the Commerce Clause can plausibly be construed as imposing that kind of limit.