National Pork Producers Council v. Ross: The Puzzling Constitutional Law and Politics of the Dormant Commerce Clause

National Pork Producers Council v. Ross illustrates the puzzling constitutional law and constitutional politics of what is known as the “dormant commerce clause” or “negative radiations of the commerce clause.” The puzzle concerns what the Supreme Court should do in the face of congressional silence when state laws have a significant effect on interstate commerce. The absence of federal regulation might signal congressional belief that states should be free to regulate. Alternatively, congressional silence might express a commitment to leaving how pigs are bred for pork on the interstate market unregulated. The constitutional politics of the dormant commerce clause is also an enigma. Attitudinal models that divide the justices into more liberal and more conservative blocs rarely explain votes when the justices consider state power to regulate commerce in the absence of federal law.