Today’s guest post is from friend-of-the-Blog Richard Dean of Tucker Ellis. For years he has been advocating greater defense use of the dormant Commerce Clause, and given the discussion of that constitutional defense in the pivotal Alito concurrence in the recent Mallory v. Norfolk Southern Railway Co., ___ S. Ct. ___, 2023 WL 41877494 (U.S. June 27, 2023), personal jurisdiction decision, he is back again. He’s too nice to say “I told you so,” but he’s earned the right. As always our guest bloggers deserve 100% of the credit, and any blame, for what they write.

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This post takes up where Bexis left off in “Litigation Tourism Lives – Mallory Revisited” – whether the dormant Commerce Clause (“DCC”) can be used to upend consent statutes after the Supreme Court ignored its carefully crafted personal jurisdiction precedents of the last ten years (precedent substantially contributed to by the defense bar in the pharmaceutical space). The Blog ended that post by discussing Justice Alito’s concurrence where he noted-

A State’s assertion of jurisdiction over lawsuits with no real connection to the State may violate fundamental principles that are protected by one or more constitutional provisions or by the very structure of the federal system that the Constitution created.

Mallory v. Norfolk Southern Railway Co., 600 U.S. ___, ___ S. Ct. ___, 2023 WL 4187749, at *14 (U.S. June 27, 2023) (concurring in part). Justice Alito noted that the Pennsylvania statute before the Court imposed a significant burden on interstate commerce by requiring a foreign corporation to defend itself as to claims with no forum connection and found no “legitimate local interest” in such statutes. So Justice Alito’s concurrence lays out a road map for challenging such statutes under the DCC. The Blog noted caution because it would take a confident Pennsylvania state court judge to find a violation of the DCC so “we are not holding our collective breaths.” As someone who has argued many post-Mensing preemption arguments to state court judges, I understand the psychological hurdle involved here.

But there is a powerful legal argument here not based on a concurrence of one justice but starting with the fact that the Supreme Court has decided this very issue albeit a long time ago—indeed citing the very same concern Justice Alito did in the language quoted above. Davis v. Farmers’ Co-op Equity Co., 262 U.S. 312 (1923). Davis squarely held that the DCC invalidated a registration statute since it imposed a serious and unreasonable burden on interstate commerce. Sure, it is a 100 years old, but it was written by Justice Brandeis and has often been cited. My prior guest post introduced readers of the Blog to Davis and more recent follow-on authority in 2016. I revisited that topic, here, discussing a comprehensive law review article that those making this challenge should review:  J. Preis, “The Dormant Commerce Clause as a Limit on Personal Jurisdiction,” 102 Iowa L. Rev. 121 (Nov. 2016) (citing numerous cases supporting a DCC challenge to such statutes), which Justice Alito cites in footnote 7 of his concurrence.  And finally, on DCC grounds, the Supreme Court rejected a Tennessee statute that required two years of residency to open a liquor store finding the law “blatantly favors the State’s residents and has little relationship to public health and safety…” Tennessee Wine and Spirits Retailer Ass’n v. Thomas, 588 U.S. __, 139 S. Ct. 2449, 2456 (2019). It is not a registration case, but it is a clear example of the court finding state protectionism negatively impacting interstate commerce. See here (guest post of July 9, 2019) for a discussion of Tennessee Wine.

So Mallory is remanded for further consideration with the obvious question − what of the DCC issue. And that question may be raised in new cases where that challenge is mounted at the beginning of a case.

But any such approach must deal with a new DCC case decided by the Supreme Court a few weeks before Mallory. National Pork Producers Council v. Ross, 598 U.S. __, 143 S. Ct. 1142 (2023). The blog discussed FDCA-related implications of National Pork a few weeks ago, here, but Mallory raises the stakes significantly. National Pork is even more fractured than the 4-1-4 split in Mallory.  Indeed, you would need the equivalent of a baseball scorecard that went into extra innings to figure out where the judges stood on various issues. Via Proposition 12, California adopted a law that forbade the in-state sale of whole pork that comes from breeding pigs that are “confined in a cruel manner” which is defined as preventing pigs from “lying down, standing up fully extending limbs and turning around freely.” 143 S. Ct. at 1150-51. Pork producers challenged this law on the ground that it impermissibly burdened interstate commerce, since out of state producers would have to incur increased costs over what they now incurred in order to sell pork in California. They argued that California had little interest in the welfare of pigs raised in other states and discounted California’s health interests, though acknowledging at oral argument that states may sometimes ban the in-state sale of products they deem unethical or immoral. 143 S. Ct. at 1160. The District Court held this claim failed to state a claim on which relief could be granted.  That decision was affirmed by the Ninth Circuit and the Supreme Court.

Here is how the “majority” got to 5. Justices Gorsuch, Thomas, and Barrett concluded that it was impossible to weigh the non-economic interest of California relating to morality and health against the pork producers increased costs. 

So even accepting everything petitioners say, we remain left with a task no court is equipped to undertake. On the one hand, some out-of-state producers who choose to comply with Proposition 12 may incur new costs. On the other hand, the law serves moral and health interests of some (disputable) magnitude for in-state residents. Some might reasonably find one set of concerns more compelling. Others might fairly disagree. How should we settle that dispute? The competing goods are incommensurable. Your guess is as good as ours.

143 S. Ct. at 1160.  That’s three.

Justices Kagan and Sotomayor did not agree with the Gorsuch opinion’s reasoning, but they both found that the complaint did not state a claim entitling the producers to relief under the DCC because petitioners failed to allege a substantial burden on interstate commerce. 143 S. Ct. at 1166. That is five justices voting to affirm.

Chief Justice Roberts and Justices Alito, Kavanaugh, and Jackson concluded that a viable claim was set forth and further that nothing precluded the Court from weighing the competing interests. In responding to the problem of weighing the competing interests, Chief Justice Roberts “appreciate[d] the concern, but sometimes there is no avoiding the need to weigh seemingly incommensurable values.” 143 S.Ct. at 1168 (citation omitted). Paraphrased: it’s hard work, but this is what judges do.

So, in National Pork six justices concluded that the weighing function could be carried out regarding the economic versus non-economic interests at play. As Justice Kavanaugh observes in footnote 3 of his concurrence, a DCC weighing test is still viable since the “majority” opinion on that issue has only three adherents and the “dissent” has six. 143 S. Ct. at 1174 n.3. I would note that the Gorsuch view, had it commanded a majority, would have been a massive rejection of precedent that relied on various balancing tests—such as the current test found in Pike v. Bruce Church, Inc., 397 U.S. 197 (1970). But there had been a balancing test long before Pike addressed balancing in detail. Davis found the registration statute imposed a serious and unreasonable burden on interstate commerce without that detailed formula.  In re Syngenta AG MIR 162 Corn Litigation, 2016 WL 2866166 (D. Kan. 2016) embraced the DCC in invalidating a registration statute by noting both a general discriminatory effect and citing to Pike’s balancing test but without a specific discussion of its factors.  Id. at *6.

It is an understatement to say that the holding in National Pork turned on the unique law in California that spawned competing interests admittedly hard to resolve. But six justices reaffirmed that this is what judges are supposed to do and, more importantly, consent statutes of the sort involved in Mallory don’t raise such difficult questions. They have been resolved by multiple courts, including the Supreme Court, itself and in the numerous cases cited in the Pries article.  And as the Blog pointed out, Justice Alito was “hard-pressed to identify an legitimate local interest that is advanced” by such statutes.  See 2023 WL 4187749, at *19. So it is not difficult to weigh interests when you can’t find any legitimate interests on one side of the scale.  Thus, National Pork thus should not stand as a roadblock to a DCC challenge to consent statutes.