California enacted a regulation prohibiting the sale of pork products within the state if the pigs were not raised in an environment with a specified number of square feet. The regulation applied to pigs raised both inside and outside the state. The Supreme Court just ruled 5-4 that the California regulation was a valid exercise of the state’s police powers. The groupings of justices concurring and dissenting did not follow the usual partisan lines.
Why does this matter? Because American economic success is largely based on the existence of a single market, which is underpinned by judicial interpretations of the Commerce Clause. In today’s political climate, we can expect both blue and red states to be more aggressive in the regulation of business: blue states, largely for environmental reasons; and red states, in an effort to control “woke capital.” In addition, red state regulations against abortion are usually designed to have extraterritorial effect, just as the pig regulation in the instant case did. All of these initiatives will undermine, at least to some extent, the single market; all of them will be justified in the future by this decision.
Does the pig case mean a further balkanization of America? Since the vote was so close, it is hard to say. It certainly doesn’t help, however.