The dormant Commerce Clause has undergone many doctrinal shifts in its two centuries of existence. Courts and commentators have strained to discern exactly when a state excessively restricts interstate commerce. Some Supreme Court Justices have even called the Court’s dormant Commerce Clause jurisprudence a “quagmire.”
In 2023, the Supreme Court decided National Pork Producers Council v. Ross. National Pork, a dormant Commerce Clause case, involved California’s Proposition 12, which prohibited the in-state sale of pork when the pigs involved had been “confined in a cruel manner.” One significant outcome of National Pork was the Court’s narrowing of the “extraterritoriality doctrine” of the dormant Commerce Clause. This doctrine is generally concerned with state regulation of commerce that is insufficiently connected to the home state, and it has been considered the “least understood” and “most dormant” strand of dormant Commerce Clause jurisprudence. After National Pork, some went as far as to declare the doctrine dead.
Nevertheless, lower court cases after National Porkshow the dormant Commerce Clause’s extraterritoriality doctrine is still alive, albeit in a narrower form than before National Pork. While pre–National Pork jurisprudence asked whether state laws had the “practical effect” of regulating extraterritorially, post–National Pork cases have avoided analyzing a law’s practical effects and instead focus on whether state laws “directly” regulate commerce occurring wholly outside of the regulating state.
On the other hand, some have argued that the extraterritoriality doctrine after National Pork is even narrower. In her note discussing the impact of National Pork on Minnesota’s 2023 Renewable Energy Law, Marley Jones asserts that National Pork held that the extraterritoriality doctrine only applies to price-fixing and price-affirmation statutes. After analyzing Minnesota’s Renewable Energy Law under this rule, Jones concludes the law would likely withstand an extraterritoriality doctrine challenge. This Note agrees with Jones on that point, even after applying a broader version of the extraterritoriality doctrine. Nevertheless, debate regarding the breadth of the extraterritoriality doctrine after National Pork indicates that higher courts should clarify its implications.