Michael S. Knoll & Ruth Mason · November 2022
91 Geo. Wash. L. Rev. Arguendo 1
In October 2022, the U.S. Supreme Court heard oral argument in National Pork Producers Council v. Ross, a Ninth Circuit case out of California, dismissing a challenge to Proposition 12, which, inter alia, bans the sale of wholesome pork (without regard to where it was produced) from the offspring of breeding sows confined in a manner California voters consider “cruel.” National Pork thus puts the Court in the position of choosing between the often-criticized undue-burden strand of the dormant Commerce Clause and California’s request that the Court approve its ban on out-of-state pork not because of the products’ qualities, but merely because Californians are offended by the manner in which such pork was produced. The parties in the case and most of the amici rightly argue that the case must be analyzed using undue-burden balancing,. Relying on Bibb Balancing, an article we wrote that is forthcoming in this Journal, this Note explains that regulatory mismatch cases receive a different kind of balancing analysis from the Supreme Court than do more run-of-the-mill cases. Because National Pork is a regulatory mismatch case, in our view, Bibb v. Navajo Freight Lines, Inc. is a more relevant precedent than is Pike v. Bruce Church, Inc.
