The following questions are for you to consider and help guide your reading as you prepare for our Module 4.

MODULE 4

BLOCK 1

1.  What kind of preemption is at issue in Lorillard Tobacco? What does the federal law regulate and what does the state law purport to regulate?  Why doesn’t the Court accept the state’s assertion of its interests?

2.  Can you describe the difference between “conflicts preemption” and “preemption because state law impedes the achievement of a federal objective”?

3.  Which types of preemption are at issue for the separate provisions of state law in Arizona v. United States?

BLOCK 2

1.  In Philadelphia v. New Jersey, what does New Jersey argue is the purpose of its landfill law? If there is not a discriminatory purpose, why does the Court hold that the law burdens interstate commerce? 

2.  Is the North Carolina apple labeling law at issue in Hunt v. Washington Apple Commission explicitly discriminatory against out of state apple producers? How does the NC law differ from the NJ law in Philadelphia?

3.  Which commercial entities are burdened by Maryland’s law in Exxon v. Maryland? Are there other commercial entities from outside of the state who are not burdened?  Is Exxon completely forbidden to sell oil/gas in Maryland?

4.  How is Exxon different from Hunt, or are they exactly the same, as Justice Blackmun argues in his dissent?

BLOCK 3

1.  What is the heightened scrutiny test under the dormant Commerce Clause? Who bears the burden of satisfying the test?

2.  What is the balancing test under the dormant Commerce Clause? Who bears the burden of satisfying the test?

BLOCK 4

1.  Can you identify the reasons for the market participant exception to the dormant Commerce Clause? Do they make sense?  Why doesn’t the Court apply the market participant exception in South-Central Timber v. Wunnicke?

2.  What is the purpose of the Article IV Privileges and Immunities Clause?

3.  In what ways is the Article IV Privileges and Immunities Clause broader than the dormant Commerce Clause and in what ways is it narrower?

Justice O’Connor delivered the opinion of the Court, Parts I, II-C, and II-D of which were unanimous; Parts II-A, II-B of which were joined by Rehnquist, C.J., and Scalia, Kennedy, and Thomas, JJ.

In January 1999, the Attorney General of Massachusetts promulgated comprehensive regulations governing the advertising and sale of cigarettes, smokeless tobacco, and cigars. The first question presented for our review is whether certain cigarette advertising regulations are pre-empted by the Federal Cigarette Labeling and Advertising Act (FCLAA).

I

[P]ursuant to his authority to prevent unfair or deceptive practices in trade, the Massachusetts Attorney General (Attorney General) promulgated regulations governing the sale and advertisement of cigarettes, smokeless tobacco, and cigars. The purpose of the regulations is “to eliminate deception and unfairness in the way tobacco products are marketed, sold and distributed in Massachusetts in order to address the incidence of tobacco use by children under legal age . . . [and] in order to prevent access to such products by underage consumers.”

The cigarette and smokeless tobacco regulations being challenged before this Court provide:

(2) Retail Outlet Sales Practices. Except as otherwise provided, it shall be an unfair or deceptive act or practice for any person who sells or distributes cigarettes or smokeless tobacco products through a retail outlet located within Massachusetts to engage in any of the following retail outlet sales practices:

(c) Using self-service displays of cigarettes or smokeless tobacco products;

(d) Failing to place cigarettes and smokeless tobacco products out of the reach of all consumers,     and in a location accessible only to outlet personnel.

(5) Advertising Restrictions. Except as provided, it shall be an unfair or deceptive act or practice for any manufacturer, distributor or retailer to engage in any of the following practices:

(a) Outdoor advertising, including advertising in enclosed stadiums and advertising from within a retail establishment that is directed toward or visible from the outside of the establishment, in any location that is within a 1,000 foot radius of any public playground, playground area in a public park, elementary school or secondary school;

(b) Point-of-sale advertising of cigarettes or smokeless tobacco products any portion of which is placed lower than five feet from the floor of any retail establishment which is located within a one thousand foot radius of any public playground, playground area in a public park, elementary school or secondary school, and which is not an adult-only retail establishment.

II

Before reaching the First Amendment issues, we must decide to what extent federal law pre-empts the Attorney General’s regulations. The cigarette petitioners contend that the FCLAA pre-empts the Attorney General’s cigarette advertising regulations.

A

In the FCLAA, Congress has crafted a comprehensive federal scheme governing the advertising and promotion of cigarettes. The FCLAA’s pre-emption provision provides:

(a) Additional statements

No statement relating to smoking and health, other than the statement required by section 1333 of this title, shall be required on any cigarette package.

(b) State regulations

No requirement or prohibition based on smoking and health shall be imposed under State law        with respect to the advertising or promotion of any cigarettes the packages of which are labeled     in conformity with the provisions of this chapter.

The FCLAA’s pre-emption provision does not cover smokeless tobacco or cigars.

In this case, our task is to identify the domain expressly pre-empted, because “an express definition of the preemptive reach of a statute. . . supports a reasonable inference . . . that Congress did not intend to pre-empt other matters.” Congressional purpose is the “ultimate touchstone” of our inquiry. Because “federal law is said to bar state action in [a] field of traditional state regulation,” namely, advertising, we “wor[k] on the assumption that the historic police powers of the States [a]re not to be superseded by the Federal Act unless that [is] the clear and manifest purpose of Congress.” In the pre-emption provision, Congress unequivocally precludes the requirement of any additional statements on “cigarette packages beyond those provided in [the statute].” Congress further precludes States or localities from imposing any requirement or prohibition based on smoking and health with respect to the advertising and promotion of cigarettes. Without question, the second clause is more expansive than the first; it employs far more sweeping language to describe the state action that is pre-empted. We must give meaning to each element of the pre-emption provision. We are aided in our interpretation by considering the predecessor pre-emption provision and the circumstances in which the current language was adopted.

In 1964, the groundbreaking Report of the Surgeon General’s Advisory Committee on Smoking and Health concluded that “[c]igarette smoking is a health hazard of sufficient importance in the United States to warrant appropriate remedial action.” In 1965, Congress enacted the FCLAA as a proactive measure in the face of impending regulation by federal agencies and the States. The purpose of the FCLAA was twofold: to inform the public adequately about the hazards of cigarette smoking, and to protect the national economy from interference due to diverse, nonuniform, and confusing cigarette labeling and advertising regulations with respect to the relationship between smoking and health. The FCLAA prescribed a label for cigarette packages. Section 5 of the FCLAA included a pre-emption provision in which “Congress spoke precisely and narrowly.” Subsection 5(a) prohibited any requirement of additional statements on cigarette packaging. Subsection 5(b) provided that “[n]o statement relating to smoking and health shall be required in the advertising of any cigarettes the packages of which are labeled in conformity with the provisions of this Act.”

In 1969, House and Senate committees held hearings about the health effects of cigarette smoking and advertising by the cigarette industry. The bill that emerged from the House of Representatives strengthened the warning and maintained the pre-emption provision. The Senate amended that bill, adding the ban on radio and television advertising, and changing the pre-emption language to its present form.

The final result was the Public Health Cigarette Smoking Act of 1969, in which Congress, following the Senate’s amendments, made three significant changes to the FCLAA. First, Congress drafted a new label that read: “Warning: The Surgeon General Has Determined That Cigarette Smoking Is Dangerous to Your Health.” Second, Congress declared it unlawful to advertise cigarettes on any medium of electronic communication subject to the jurisdiction of the FCC. Finally, Congress enacted the current pre-emption provision, which proscribes any “requirement or prohibition based on smoking and health . . . imposed under State law with respect to the advertising or promotion” of cigarettes. The new pre-emption provision, like its predecessor, only applied to cigarettes, and not other tobacco products.

In 1984, Congress again amended the FCLAA in the Comprehensive Smoking Education Act. The purpose of the Act was to “provide a new strategy for making Americans more aware of any adverse health effects of smoking, to assure the timely and widespread dissemination of research findings and to enable individuals to make informed decisions about smoking.” The Act established a series of warnings to appear on a rotating basis on cigarette packages and in cigarette advertising, and directed the Health and Human Services Secretary to create and implement an educational program about the health effects of cigarette smoking.

The FTC has continued to report on trade practices in the cigarette industry. In 1999, the first year since the master settlement agreement, the FTC reported that the cigarette industry expended $8.24 billion on advertising and promotions, the largest expenditure ever. Substantial increases were found in point-of-sale promotions, payments made to retailers to facilitate sales, and retail offers such as buy one, get one free, or product giveaways. Substantial decreases, however, were reported for outdoor advertising and transit advertising.

The scope and meaning of the current pre-emption provision become clearer once we consider the original pre-emption language and the amendments to the FCLAA. Without question, “the plain language of the pre-emption provision in the 1969 Act is much broader.” Rather than preventing only “statements,” the amended provision reaches all “requirement[s] or prohibition[s] . . . imposed under State law.” And, although the former statute reached only statements “in the advertising,” the current provision governs “with respect to the advertising or promotion” of cigarettes. Congress expanded the pre-emption provision with respect to the States, and at the same time, it allowed the FTC to regulate cigarette advertising. Congress also prohibited cigarette advertising in electronic media altogether. Viewed in light of the context in which the current pre-emption provision was adopted, we must determine whether the FCLAA pre-empts Massachusetts’ regulations governing outdoor and point-of-sale advertising of cigarettes.

B

Turning first to the language in the pre-emption provision relied upon by the Court of Appeals, we reject the notion that the Attorney General’s cigarette advertising regulations are not “with respect to” advertising and promotion. The Attorney General argues that the cigarette advertising regulations are not “based on smoking and health,” because they do not involve health-related content in cigarette advertising but instead target youth exposure to cigarette advertising. To be sure, Members of this Court have debated the precise meaning of “based on smoking and health,” but we cannot agree with the Attorney General’s narrow construction of the phrase.

As Congress enacted the current pre-emption provision, Congress did not concern itself solely with health warnings for cigarettes. In the 1969 amendments, Congress not only enhanced its scheme to warn the public about the hazards of cigarette smoking, but also sought to protect the public, including youth, from being inundated with images of cigarette smoking in advertising. In pursuit of the latter goal, Congress banned electronic media advertising of cigarettes. And to the extent that Congress’s contemplated additional targeted regulation of cigarette advertising, it vested that authority in the FTC.

The context in which Congress crafted the current pre-emption provision leads us to conclude that Congress prohibited state cigarette advertising regulations motivated by concerns about smoking and health. Massachusetts has attempted to address the incidence of underage cigarette smoking by regulating advertising, much like Congress’s ban on cigarette advertising in electronic media. At bottom, the concern about youth exposure to cigarette advertising is intertwined with the concern about cigarette smoking and health. Thus the Attorney General’s attempt to distinguish one concern from the other must be rejected.

The Attorney General next claims that the State’s outdoor and point-of-sale advertising regulations for cigarettes are not pre-empted because they govern the location, and not the content, of advertising. This is also Justice Stevens’ main point with respect to pre-emption.

The content versus location distinction has some surface appeal. The pre-emption provision immediately follows the section of the FCLAA that prescribes warnings. The pre-emption provision itself refers to cigarettes “labeled in conformity with” the statute. But the content/location distinction cannot be squared with the language of the pre-emption provision, which reaches all “requirements” and “prohibitions” “imposed under State law.” A distinction between the content of advertising and the location of advertising in the FCLAA also cannot be reconciled with Congress’ own location-based restriction, which bans advertising in electronic media, but not elsewhere. We are not at liberty to pick and choose which provisions in the legislative scheme we will consider, but must examine the FCLAA as a whole.

Justice Stevens maintains that Congress did not intend to displace state regulation of the location of cigarette advertising. There is a critical distinction, however, between generally applicable zoning regulations, and regulations targeting cigarette advertising. The latter type of regulation, which is inevitably motivated by concerns about smoking and health, squarely contradicts the FCLAA. The FCLAA’s comprehensive warnings, advertising restrictions, and pre-emption provision would make little sense if a State or locality could simply target and ban all cigarette advertising.

In sum, we fail to see how the FCLAA and its pre-emption provision permit a distinction between the specific concern about minors and cigarette advertising and the more general concern about smoking and health in cigarette advertising, especially in light of the fact that Congress crafted a legislative solution for those very concerns. We also conclude that a distinction between state regulation of the location as opposed to the content of cigarette advertising has no foundation in the text of the pre-emption provision. Congress pre-empted state cigarette advertising regulations like the Attorney General’s because they would upset federal legislative choices to require specific warnings and to impose the ban on cigarette advertising in electronic media in order to address concerns about smoking and health. Accordingly, we hold that the Attorney General’s outdoor and point-of-sale advertising regulations targeting cigarettes are pre-empted by the FCLAA.

Justice Stevens, with whom Justices Souter, Ginsburg, and Breyer join, dissenting [on the preemption issue].

As the majority acknowledges, under prevailing principles, any examination of the scope of a preemption provision must “‘start with the assumption that the historic police powers of the States [are] not to be superseded by . . . Federal Act unless that [is] the clear and manifest purpose of Congress.’” Cipollone v. Liggett Group, Inc. (1992). As the regulations at issue in this suit implicate two powers that lie at the heart of the States’ traditional police power—the power to regulate land usage and the power to protect the health and safety of minors—our precedents require that the Court construe the preemption provision “narrow[ly].” If Congress’s intent to preempt a particular category of regulation is ambiguous, such regulations are not preempted.

The text of the preemption provision must be viewed in context, with proper attention paid to the history, structure, and purpose of the regulatory scheme in which it appears. An assessment of the scope of a preemption provision must give effect to a “reasoned understanding of the way in which Congress intended the statute and its surrounding regulatory scheme to affect business, consumers, and the law.”

This task, properly performed, leads inexorably to the conclusion that Congress did not intend to preempt state and local regulations of the location of cigarette advertising when it adopted the provision at issue in this suit. In both 1965 and 1969, Congress made clear the purposes of its regulatory endeavor, explaining with precision the federal policies motivating its actions. According to the acts, Congress adopted a “comprehensive Federal program to deal with cigarette labeling and advertising with respect to any relationship between smoking and health,” for two reasons: (1) to inform the public that smoking may be hazardous to health and (2) to ensure that commerce and the interstate economy not be “impeded by diverse, nonuniform, and confusing cigarette labeling and advertising regulations with respect to any relationship between smoking and health.”

In order to serve the second purpose it was necessary to preempt state regulation of the content of both cigarette labels and cigarette advertising. If one State required the inclusion of a particular warning on the package of cigarettes while another State demanded a different formulation, cigarette manufacturers would have been forced into the difficult and costly practice of producing different packaging for use in different States. To foreclose the waste of resources that would be entailed by such a patchwork regulatory system, Congress expressly precluded other regulators from requiring the placement on cigarette packaging of any “statement relating to smoking and health.” Similar concerns applied to cigarette advertising. If different regulatory bodies required that different warnings or statements be used when cigarette manufacturers advertised their products, the text and layout of a company’s ads would have had to differ from locale to locale. The resulting costs would have come with little or no health benefit. Moreover, given the nature of publishing, it might well have been the case that cigarette companies would not have been able to advertise in national publications without violating the laws of some jurisdictions. In response to these concerns, Congress adopted a parallel provision preempting state and local regulations requiring inclusion in cigarette advertising of any “statement relating to smoking and health.”

There was, however, no need to interfere with state or local zoning laws or other regulations prescribing limitations on the location of signs or billboards. Laws prohibiting a cigarette company from hanging a billboard near a school in Boston in no way conflict with laws permitting the hanging of such a billboard in other jurisdictions. Nor would such laws even impose a significant administrative burden on would-be advertisers, as the great majority of localities impose general restrictions on signage, thus requiring advertisers to examine local law before posting signs whether or not cigarette-specific laws are preempted.

The legislative history of the provision also supports such a reading. The record does not contain any evidence that Congress intended to expand the scope of preemption beyond content restrictions. To the contrary, the Senate Report makes it clear that the changes merely “clarified” the scope of the original provision. Even as amended, Congress perceived the provision as “narrowly phrased” and emphasized that its purpose is to “avoid the chaos created by a multiplicity of conflicting regulations.” According to the Senate Report, the changes “in no way affect the power of any state or political subdivision of any state with respect to . . . the sale of cigarettes to minors . . . or similar police regulations.”

I am firmly convinced that, when Congress amended the preemption provision in 1969, it did not intend to expand the application of the provision beyond content regulations. I, therefore, find the conclusion inescapable that the zoning regulation at issue in this suit is not a “requirement or prohibition . . . with respect to . . . advertising” within the meaning of the 1969 Act. Even if I were not so convinced, however, I would still dissent from the Court’s conclusion with regard to preemption, because the provision is, at the very least, ambiguous. The historical record simply does not reflect that it was Congress’s “‘clear and manifest purpose,’” to preempt attempts by States to utilize their traditional zoning authority to protect the health and welfare of minors. Absent such a manifest purpose, Massachusetts and its sister States retain their traditional police powers.

Justice Brennan delivered the opinion of the Court.

Section 792 of California’s Agricultural Code, which gauges the maturity of avocados by oil content, prohibits the transportation or sale in California of avocados which contain “less than 8 per cent of oil, by weight excluding the skin and seed.” In contrast, federal marketing orders approved by the Secretary of Agriculture gauge the maturity of avocados grown in Florida by standards which attribute no significance to oil content. This case presents the question of the constitutionality of the California statute insofar as it may be applied to exclude from California markets certain Florida avocados which, although certified to be mature under the federal regulations, do not uniformly meet the California requirement of 8% of oil.

We consider first appellants’ challenge under the Supremacy Clause. That the California statute and the federal marketing orders embody different maturity tests is clear. However, this difference poses, rather than disposes of the problem before us.

A holding of federal exclusion of state law is inescapable and requires no inquiry into congressional design where compliance with both federal and state regulations is a physical impossibility for one engaged in interstate commerce. That would be the situation here if, for example, the federal orders forbade the picking and marketing of any avocado testing more than 7% oil, while the California test excluded from the State any avocado measuring less than 8% oil content. No such impossibility of dual compliance is presented on this record, however. As to those Florida avocados of the hybrid and Guatemalan varieties which were actually rejected by the California test, the District Court indicated that the Florida growers might have avoided such rejections by leaving the fruit on the trees beyond the earliest picking date permitted by the federal regulations, and nothing in the record contradicts that suggestion. Nor is there a lack of evidentiary support for the District Court’s finding that the Florida varieties marketed in California “attain or exceed 8% oil content while in a prime commercial marketing condition,” even though they may be “mature enough to be acceptable prior to the time that they reach that content.” Thus the present record demonstrates no inevitable collision between the two schemes of regulation, despite the dissimilarity of the standards.

Justice White delivered the opinion of the Court.

The turning of swords into plowshares has symbolized the transformation of atomic power into a source of energy in American society. To facilitate this development the federal government relaxed its monopoly over fissionable materials and nuclear technology, and in its place, erected a complex scheme to promote the civilian development of nuclear energy, while seeking to safeguard the public and the environment from the unpredictable risks of a new technology. Early on, it was decided that the states would continue their traditional role in the regulation of electricity production. The interrelationship of federal and state authority in the nuclear energy field has not been simple; the federal regulatory structure has been frequently amended to optimize the partnership.

This case emerges from the intersection of the federal government’s efforts to ensure that nuclear power is safe with the exercise of the historic state authority over the generation and sale of electricity. At issue is whether provisions in the 1976 amendments to California’s Warren-Alquist Act, which condition the construction of nuclear plants on findings by the State Energy Resources Conservation and Development Commission that adequate storage facilities and means of disposal are available for nuclear waste, are preempted by the Atomic Energy Act of 1954.

I

A nuclear reactor must be periodically refueled and the “spent fuel” removed. This spent fuel is intensely radioactive and must be carefully stored. The general practice is to store the fuel in a water-filled pool at the reactor site. For many years, it was assumed that this fuel would be reprocessed; accordingly, the storage pools were designed as short-term holding facilities with limited storage capacities. As expectations for reprocessing remained unfulfilled, the spent fuel accumulated in the storage pools, creating the risk that nuclear reactors would have to be shut down. This could occur if there were insufficient room in the pool to store spent fuel and also if there were not enough space to hold the entire fuel core when certain inspections or emergencies required unloading of the reactor. In recent years, the problem has taken on special urgency. Some 8,000 metric tons of spent nuclear fuel have already accumulated, and it is projected that by the year 2000 there will be some 72,000 metric tons of spent fuel. Government studies indicate that a number of reactors could be forced to shut down in the near future due to the inability to store spent fuel.

There is a second dimension to the problem. Even with water-pools adequate to store safely all the spent fuel produced during the working lifetime of the reactor, permanent disposal is needed because the wastes will remain radioactive for thousands of years. A number of long-term nuclear waste management strategies have been extensively examined. These range from sinking the wastes in stable deep seabeds, to placing the wastes beneath ice sheets in Greenland and Antarctica, to ejecting the wastes into space by rocket. The greatest attention has been focused on disposing of the wastes in subsurface geologic repositories such as salt deposits. Problems of how and where to store nuclear wastes has engendered considerable scientific, political, and public debate. There are both safety and economic aspects to the nuclear waste issue: first, if not properly stored, nuclear wastes might leak and endanger both the environment and human health; second, the lack of a long-term disposal option increases the risk that the insufficiency of interim storage space for spent fuel will lead to reactor-shutdowns, rendering nuclear energy an unpredictable and uneconomical adventure.

The California laws at issue here are responses to these concerns. Two [provisions] are before us. Section 25524.1(b) provides that before additional nuclear plants may be built, the Energy Commission must determine on a case-by-case basis that there will be “adequate capacity” for storage of a plant’s spent fuel rods “at the time such nuclear facility requires such . . . storage.” The law also requires that each utility provide continuous, on-site, “full core reserve storage capacity” in order to permit storage of the entire reactor core if it must be removed to permit repairs of the reactor.

Section 25524.2 deals with the long-term solution to nuclear wastes. This section imposes a moratorium on the certification of new nuclear plants until the Energy Commission “finds that there has been developed and that the United States through its authorized agency has approved and there exists a demonstrated technology or means for the disposal of high-level nuclear waste.” “Disposal” is defined as a “method for the permanent and terminal disposition of high-level nuclear waste. . . .” Such a finding must be reported to the state legislature, which may nullify it.

[II]

Petitioners, the United States [the United States was a party in the lower court proceedings even though it is not named in the caption], and supporting amici, present three major lines of argument as to why §25524.2 is preempted. First, they submit that the statute—because it regulates construction of nuclear plants and because it is allegedly predicated on safety concerns—ignores the division between federal and state authority created by the Atomic Energy Act, and falls within the field that the federal government has preserved for its own exclusive control. Second, the statute, and the judgments that underlie it, conflict with decisions concerning the nuclear waste disposal issue made by Congress and the Nuclear Regulatory Commission. Third, the California statute frustrates the federal goal of developing nuclear technology as a source of energy. We consider each of these contentions in turn.

A

Even a brief perusal of the Atomic Energy Act reveals that, despite its comprehensiveness, it does not at any point expressly require the States to construct or authorize nuclear power plants or prohibit the States from deciding, as an absolute or conditional matter, not to permit the construction of any further reactors. Instead, petitioners argue that the Act is intended to preserve the federal government as the sole regulator of all matters nuclear, and that §25524.2 falls within the scope of this impliedly preempted field. But as we view the issue, Congress, in passing the 1954 Act and in subsequently amending it, intended that the federal government should regulate the radiological safety aspects involved in the construction and operation of a nuclear plant, but that the States retain their traditional responsibility in the field of regulating electrical utilities for determining questions of need, reliability, cost, and other related state concerns.

Need for new power facilities, their economic feasibility, and rates and services, are areas that have been characteristically governed by the States. [This] is not particularly controversial. But deciding how §25524.2 is to be construed and classified is a more difficult proposition. At the outset, we emphasize that the statute does not seek to regulate the construction or operation of a nuclear powerplant. It would clearly be impermissible for California to attempt to do so, for such regulation, even if enacted out of non-safety concerns, would nevertheless directly conflict with the NRC’s exclusive authority over plant construction and operation. Respondents appear to concede as much. Respondents do broadly argue, however, that although safety regulation of nuclear plants by states is forbidden, a state may completely prohibit new construction until its safety concerns are satisfied by the federal government. We reject this line of reasoning. State safety regulation is not preempted only when it conflicts with federal law. Rather, the federal government has occupied the entire field of nuclear safety concerns, except the limited powers expressly ceded to the states. A state moratorium on nuclear construction grounded in safety concerns falls squarely within the prohibited field. Moreover, a state judgment that nuclear power is not safe enough to be further developed would conflict directly with the countervailing judgment of the NRC, that nuclear construction may proceed notwithstanding extant uncertainties as to waste disposal. A state prohibition on nuclear construction for safety reasons would also be in the teeth of the Atomic Energy Act’s objective to insure that nuclear technology be safe enough for widespread development and use—and would be preempted for that reason.

That being the case, it is necessary to determine whether there is a non-safety rationale for §25524.2. California has maintained, and the Court of Appeals agreed, that §25524.2 was aimed at economic problems, not radiation hazards. The California Assembly Committee on Resources, Land Use, and Energy, which proposed a package of bills including §25524.2, reported that the waste disposal problem was “largely economic or the result of poor planning, not safety related.” Without a permanent means of disposal, the nuclear waste problem could become critical leading to unpredictably high costs to contain the problem or, worse, shutdowns in reactors.

B

Petitioners’ second major argument concerns federal regulation aimed at the nuclear waste disposal problem itself. It is contended that §25524.2 conflicts with federal regulation of nuclear waste disposal, with the NRC’s decision that it is permissible to continue to license reactors, notwithstanding uncertainty surrounding the waste disposal problem, and with Congress’ recent passage of legislation directed at that problem.

Pursuant to its authority under the Act, the AEC, and later the NRC, promulgated extensive and detailed regulations concerning the operation of nuclear facilities and the handling of nuclear materials. The NRC’s imprimatur, however, indicates only that it is safe to proceed with such plants, not that it is economically wise to do so. Because the NRC order does not and could not compel a utility to develop a nuclear plant, compliance with both it and §25524.2 are possible. Moreover, because the NRC’s regulations are aimed at insuring that plants are safe, not necessarily that they are economical, §25524.2 does not interfere with the objective of the federal regulation.

C

Finally, it is strongly contended that §25524.2 frustrates the Atomic Energy Act’s purpose to develop the commercial use of nuclear power. It is well established that state law is preempted if it “stands as an obstacle to the accomplishment of the full purposes and objectives of Congress.” Hines v. Davidowitz (1941).

There is little doubt that a primary purpose of the Atomic Energy Act was, and continues to be, the promotion of nuclear power. The Act itself states that it is a program “to encourage widespread participation in the development and utilization of atomic energy for peaceful purposes to the maximum extent consistent with the common defense and security and with the health and safety of the public.”

The Court of Appeals is right, however, that the promotion of nuclear power is not to be accomplished “at all costs.” The elaborate licensing and safety provisions and the continued preservation of state regulation in traditional areas belie that. Moreover, Congress has allowed the States to determine—as a matter of economics — whether a nuclear plant vis-à-vis a fossil fuel plant should be built. The decision of California to exercise that authority does not, in itself, constitute a basis for preemption. Therefore, while the argument of petitioners and the United States has considerable force, the legal reality remains that Congress has left sufficient authority in the states to allow the development of nuclear power to be slowed or even stopped for economic reasons. Given this statutory scheme, it is for Congress to rethink the division of regulatory authority in light of its possible exercise by the states to undercut a federal objective. The courts should not assume the role which our system assigns to Congress.

Justice KENNEDY delivered the opinion of the Court.

To address pressing issues related to the large number of aliens within its borders who do not have a lawful right to be in this country, the State of Arizona in 2010 enacted a statute called the Support Our Law Enforcement and Safe Neighborhoods Act. The law is often referred to as S.B. 1070, the version introduced in the State Senate. Its stated purpose is to “discourage and deter the unlawful entry and presence of aliens and economic activity by persons unlawfully present in the United States.” The law's provisions establish an official state policy of “attrition through enforcement.” Ibid. The question before the Court is whether federal law preempts and renders invalid four separate provisions of the state law.

I

The United States filed this suit against Arizona, seeking to enjoin S.B. 1070 as preempted. Four provisions of the law are at issue here. Two create new state offenses. Section 3 makes failure to comply with federal alien-registration requirements a state misdemeanor. Section 5, in relevant part, makes it a misdemeanor for an unauthorized alien to seek or engage in work in the State; this provision is referred to as § 5(C). Two other provisions give specific arrest authority and investigative duties with respect to certain aliens to state and local law enforcement officers. Section 6 authorizes officers to arrest without a warrant a person “the officer has probable cause to believe ... has committed any public offense that makes the person removable from the United States.” Section 2(B) provides that officers who conduct a stop, detention, or arrest must in some circumstances make efforts to verify the person's immigration status with the Federal Government.

II

A

1

The Government of the United States has broad, undoubted power over the subject of immigration and the status of aliens. See Toll v. Moreno, 458 U.S. 1, 10 (1982). This authority rests, in part, on the National Government's constitutional power to “establish an uniform Rule of Naturalization,” Art. I, § 8, cl. 4, and its inherent power as sovereign to control and conduct relations with foreign nations.

The federal power to determine immigration policy is well settled. Immigration policy can affect trade, investment, tourism, and diplomatic relations for the entire Nation, as well as the perceptions and expectations of aliens in this country who seek the full protection of its laws. Perceived mistreatment of aliens in the United States may lead to harmful reciprocal treatment of American citizens abroad.

It is fundamental that foreign countries concerned about the status, safety, and security of their nationals in the United States must be able to confer and communicate on this subject with one national sovereign, not the 50 separate States. This Court has reaffirmed that “[o]ne of the most important and delicate of all international relationships ... has to do with the protection of the just rights of a country's own nationals when those nationals are in another country.” Hines v. Davidowitz, 312 U.S. 52, 64 (1941).

Federal governance of immigration and alien status is extensive and complex. Congress has specified categories of aliens who may not be admitted to the United States.

Discretion in the enforcement of immigration law embraces immediate human concerns. Unauthorized workers trying to support their families, for example, likely pose less danger than alien smugglers or aliens who commit a serious crime. The equities of an individual case may turn on many factors, including whether the alien has children born in the United States, long ties to the community, or a record of distinguished military service. Some discretionary decisions involve policy choices that bear on this Nation's international relations. Returning an alien to his own country may be deemed inappropriate even where he has committed a removable offense or fails to meet the criteria for admission. The foreign state may be mired in civil war, complicit in political persecution, or enduring conditions that create a  real risk that the alien or his family will be harmed upon return. The dynamic nature of relations with other countries requires the Executive Branch to ensure that enforcement policies are consistent with this Nation's foreign policy with respect to these and other realities.

B

The pervasiveness of federal regulation does not diminish the importance of immigration policy to the States. Arizona bears many of the consequences of unlawful immigration. Hundreds of thousands of deportable aliens are apprehended in Arizona each year. Unauthorized aliens who remain in the State constitute, by one estimate, almost 6% of the population. And in the State's most populous county, these aliens are reported to be responsible for a disproportionate share of serious crime.

Statistics alone do not capture the full extent of Arizona's concerns. Accounts in the record suggest there is an “epidemic of crime, safety risks, serious property damage, and environmental problems” associated with the influx of illegal migration across private land near the Mexican border.

IV

A

Section 3

Section 3 of S.B. 1070 creates a new state misdemeanor. It forbids the “willful failure to complete or carry an alien registration document ... in violation of 8 United States Code § 1304(e) or 1306(a).” In effect, § 3 adds a state-law penalty for conduct proscribed by federal law. The United States contends that this state enforcement mechanism intrudes on the field of alien registration, a field in which Congress has left no room for States to regulate.

The Court discussed federal alien-registration requirements in Hines, supra. In 1940, as international conflict spread, Congress added to federal immigration law a “complete system for alien registration.” The Court found that Congress intended the federal plan for registration to be a “single integrated and all-embracing system.” Id., at 74. Because this “complete scheme ... for the  registration of aliens” touched on foreign relations, it did not allow the States to “curtail or complement” federal law or to “enforce additional or auxiliary regulations.” Id., at 66–67. As a consequence, the Court ruled that Pennsylvania could not enforce its own alien-registration program.

The framework enacted by Congress leads to the conclusion here, as it did in Hines, that the Federal Government has occupied the field of alien registration. The federal statutory directives provide a full set of standards governing alien registration, including the punishment for noncompliance. It was designed as a “ ‘harmonious whole.’ ”Where Congress occupies an entire field, as it has in the field of alien registration, even complementary state regulation is impermissible. Field preemption reflects a congressional decision to foreclose any state regulation in the area, even if it is parallel to federal standards.

Arizona contends that § 3 can survive preemption because the provision has the same aim as federal law and adopts its substantive standards. This argument not only ignores the basic premise of field preemption—that States may not enter, in any respect, an area the Federal Government has reserved for itself—but also is unpersuasive on its own terms. Permitting the State to impose its own penalties for the federal offenses here would conflict with the careful framework Congress adopted. Were § 3 to come into force, the State would have the power to bring criminal charges against individuals for violating a federal law even in circumstances where federal officials in charge of the comprehensive scheme determine that prosecution would frustrate federal policies.

As it did in Hines, the Court now concludes that, with respect to the subject of alien registration, Congress intended to preclude States from “complement[ing] the federal law, or enforc[ing] additional or auxiliary regulations.”Section 3 is preempted by federal law.

B

Section 5(C)

Unlike § 3, which replicates federal statutory requirements, § 5(C) enacts a state criminal prohibition where no federal counterpart exists. The provision makes it a state misdemeanor for “an unauthorized alien to knowingly apply for work, solicit work in a public place or perform work as an employee or independent contractor” in Arizona. Violations can be punished by a $2,500 fine and incarceration for up to six months.The United States contends that the provision upsets the balance struck by the Immigration Reform and Control Act of 1986 (IRCA) and must be preempted as an obstacle to the federal plan of regulation and control.

Congress enacted IRCA as a comprehensive framework for “combating the employment of illegal aliens.” The law makes it illegal for employers to knowingly hire, recruit, refer, or continue to employ unauthorized workers. It also requires every employer to verify the employment authorization status of prospective employees. These requirements are enforced through criminal penalties and an escalating series of civil penalties tied to the number of times an employer has violated the provisions.

This comprehensive framework does not impose federal criminal sanctions on the employee side (i.e., penalties on aliens who seek or engage in unauthorized work). Under federal law some civil penalties are imposed instead.

The legislative background of IRCA underscores the fact that Congress made a deliberate choice not to impose criminal penalties on aliens who seek, or engage in, unauthorized employment. In the end, IRCA's framework reflects a considered judgment that making criminals out of aliens engaged in unauthorized work—aliens who already face the possibility of employer exploitation because of their removable status—would be inconsistent with federal policy and objectives.

The ordinary principles of preemption include the well-settled proposition that a state law is preempted where it “stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.” Under § 5(C) of S.B. 1070, Arizona law would interfere with the careful balance struck by Congress with respect to unauthorized employment of aliens. Section 5(C) is preempted by federal law.

C

Section 6

Section 6 of S.B. 1070 provides that a state officer, “without a warrant, may arrest a person if the officer has probable cause to believe ... [the person] has committed any public offense that makes [him] removable from the United States.” The United States argues that arrests authorized by this statute would be an obstacle to the removal system Congress created.

As a general rule, it is not a crime for a removable alien to remain present in the United States. If the police stop someone based on nothing more than possible removability, the usual predicate for an arrest is absent. When an alien is suspected of being removable, a federal official issues an administrative document called a “Notice to Appear.“ The form does not authorize an arrest. Instead, it gives the alien information about the proceedings, including the time and date of the removal hearing. If an alien fails to appear, an in absentia order may direct removal.

The federal statutory structure instructs when it is appropriate to arrest an alien during the removal process. For example, the Attorney General can exercise discretion to issue a warrant for an alien's arrest and detention “pending a decision on whether the alien is to be removed from the United States.” And if an alien is ordered removed after a hearing, the Attorney General will issue a warrant. In both instances, the warrants are executed by federal officers who have received training in the enforcement of immigration law.

Section 6 attempts to provide state officers even greater authority to arrest aliens on the basis of possible removability than Congress has given to trained federal immigration officers. Under state law, officers who believe an alien is removable by reason of some “public offense” would have the power to conduct an arrest on that basis regardless of whether a federal warrant has issued or the alien is likely to escape. This state authority could be exercised without any input from the Federal Government about whether an arrest is warranted in a particular case. This would allow the State to achieve its own immigration policy. The result could be unnecessary harassment of some aliens (for instance, a veteran, college student, or someone assisting with a criminal investigation) who federal officials determine should not be removed.

This is not the system Congress created. Federal law specifies limited circumstances in which state officers may perform the functions of an immigration officer. A principal example is when the Attorney General has granted that authority to specific officers in a formal agreement with a state or local government.

By authorizing state officers to decide whether an alien should be detained for being removable, § 6 violates the principle that the removal process is entrusted to the discretion of the Federal Government. A decision on removability requires a determination whether it is appropriate to allow a foreign national to continue living in the United States. Decisions of this nature touch on foreign relations and must be made with one voice.

D

Section 2(B)

Section 2(B) of S.B. 1070 requires state officers to make a “reasonable attempt ... to determine the immigration status” of any person they stop, detain, or arrest on some other legitimate basis if “reasonable suspicion exists that the person is an alien and is unlawfully present in the United States.” The law also provides that “[a]ny person who is arrested shall have the person's immigration status determined before the person is released.” The accepted way to perform these status checks is to contact ICE, which maintains a database of immigration records.

Three limits are built into the state provision. First, a detainee is presumed not to be an alien unlawfully present in the United States if he or she provides a valid Arizona driver's license or similar identification. Second, officers “may not consider race, color or national origin ... except to the extent permitted by the United States [and] Arizona Constitution[s].” Ibid. Third, the provision must be “implemented in a manner consistent with federal laws regulating immigration, protecting the civil rights of all persons and respecting the privileges and immunities of United States citizens.”

Consultation between federal and state officials is an important feature of the immigration system. Congress has made clear that no formal agreement or special training needs to be in place for state officers to “communicate with the [Federal Government] regarding the immigration status of any individual, including reporting knowledge that a particular alien is not lawfully present in the United States.” And Congress has obligated ICE to respond to any request made by state officials for verification of a person's citizenship or immigration status.

Congress has done nothing to suggest it is inappropriate to communicate with ICE in these situations, however. Indeed, it has encouraged the sharing of information about possible immigration violations. The federal scheme thus leaves room for a policy requiring state officials to contact ICE as a routine matter.

2

Some who support the challenge to § 2(B) argue that, in practice, state officers will be required to delay the release of some detainees for no reason other than to verify their immigration status.Detaining individuals solely to verify their immigration status would raise constitutional concerns. And it would disrupt the federal framework to put state officers in the position of holding aliens in custody for possible unlawful presence without federal direction and supervision. The program put in place by Congress does not allow state or local officers to adopt this enforcement mechanism.

The nature and timing of this case counsel caution in evaluating the validity of § 2(B). The Federal Government has brought suit against a sovereign State to challenge the provision even before the law has gone into effect. There is a basic uncertainty about what the law means and how it will be enforced. At this stage, without the benefit of a definitive interpretation from the state courts, it would be inappropriate to assume § 2(B) will be construed in a way that creates a conflict with federal law. As a result, the United States cannot prevail in its current challenge. This opinion does not foreclose other preemption and constitutional challenges to the law as interpreted and applied after it goes into effect.

V

Immigration policy shapes the destiny of the Nation. The history of the United States is in part made of the stories, talents, and lasting contributions of those who crossed oceans and deserts to come here.

The National Government has significant power to regulate immigration. With power comes responsibility, and the sound exercise of national power over immigration depends on the Nation's meeting its responsibility to base its laws on a political will informed by searching, thoughtful, rational civic discourse. Arizona may have understandable frustrations with the problems caused by illegal immigration while that process continues, but the State may not pursue policies that undermine federal law.

Justice SCALIA, concurring in part and dissenting in part.

The United States is an indivisible “Union of sovereign States.” Today's opinion, approving virtually all of the Ninth Circuit's injunction against enforcement of the four challenged provisions of Arizona's law, deprives States of what most would consider the defining characteristic of sovereignty: the power to exclude from the sovereign's territory people who have no right to be there. Neither the Constitution itself nor even any law passed by Congress supports this result. I dissent.

I

As a sovereign, Arizona has the inherent power to exclude persons from its territory, subject only to those limitations expressed in the Constitution or constitutionally imposed by Congress.

In light of the predominance of federal immigration restrictions in modern times, it is easy to lose sight of the States' traditional role in regulating immigration—and to overlook their sovereign prerogative to do so. I accept as a given that state regulation is excluded by the Constitution when (1) it has been prohibited by a valid federal law, or (2) it conflicts with federal regulation—when, for example, it admits those whom federal regulation would exclude, or excludes those whom federal regulation would admit.

Possibility (1) need not be considered here: There is no federal law prohibiting the States' sovereign power to exclude (assuming federal authority to enact such a law). The mere existence of federal action in the immigration area—and the so-called field preemption arising from that action, upon which the Court's opinion so heavily relies, cannot be regarded as such a prohibition. We are not talking here about a federal law prohibiting the States from regulating bubble-gum advertising, or even the construction of nuclear plants. We are talking about a federal law going to the core of state sovereignty: the power to exclude. Like elimination of the States' other inherent sovereign power, immunity from suit, elimination of the States' sovereign power to exclude requires that “ Congress ... unequivocally expres[s] its intent to abrogate,” Implicit “field preemption” will not do.

Nor can federal power over illegal immigration be deemed exclusive because of what the Court's opinion solicitously calls “foreign countries['] concern[s] about the status, safety, and security of their nationals in the United States,” Even in its international relations, the Federal Government must live with the inconvenient fact that it is a Union of independent States, who have their own sovereign powers.

What this case comes down to, then, is whether the Arizona law conflicts with federal immigration law—whether it excludes those whom federal law would admit, or admits those whom federal law would exclude. It does not purport to do so. It applies only to aliens who neither possess a privilege to be present under federal law nor have been removed pursuant to the Federal Government's inherent authority. I proceed to consider the challenged provisions in detail.

§2(B)

The Government has conceded that “even before Section 2 was enacted, state and local officers had state-law authority to inquire of DHS [the Department of Homeland Security] about a suspect's unlawful status and otherwise cooperate with federal immigration officers.” That concession, in my view, obviates the need for further inquiry.

The Court therefore properly rejects the Government's challenge, recognizing that, “[a]t this stage, without the benefit of a definitive interpretation from the state courts, it would be inappropriate to assume § 2(B) will be construed in a way that creates a conflict with federal law.”

§6

This provision of S.B. 1070 expands the statutory list of offenses for which an Arizona police officer may make an arrest without a warrant. If an officer has probable cause to believe that an individual is “removable” by reason of a public offense, then a warrant is not required to make an arrest. The Government's primary contention is that § 6 is pre-empted by federal immigration law because it allows state officials to make arrests “without regard to federal priorities.”

Of course on this pre-enforcement record there is no reason to assume that Arizona officials will ignore federal immigration policy (unless it be the questionable policy of not wanting to identify illegal aliens who have committed offenses that make them removable). As Arizona points out, federal law expressly provides that state officers may “cooperate with the Attorney General in the identification, apprehension, detention, or removal of aliens not lawfully present in the United States,”; and “cooperat[ion]” requires neither identical efforts nor prior federal approval. It is consistent with the Arizona statute, and with the “ cooperat[ive]” system that Congress has created, for state officials to arrest a removable alien, contact federal immigration authorities, and follow their lead on what to do next. And it is an assault on logic to say that identifying a removable alien and holding him for federal determination whether he should be removed “violates the principle that the removal process is entrusted to the discretion of the Federal Government,”. The State's detention does not represent commencement of the removal process unless the Federal Government makes it so.

But that is not the most important point. The most important point is that, as we have discussed, Arizona is entitled to have “its own immigration policy”—including a more rigorous enforcement policy—so long as that does not conflict with federal law.

§3

It is beyond question that a State may make violation of federal law a violation of state law as well. We have held that to be so even when the interest protected is a distinctively federal interest, such as protection of the dignity of the national flag, or protection of the Federal Government's ability to recruit soldiers.

The Court points out, however, that in some respects the state law exceeds the punishments prescribed by federal law: It rules out probation and pardon, which are available under federal law. The answer is that it makes no difference. Illegal immigrants who violate § 3 violate Arizona law. It is one thing to say that the Supremacy Clause prevents Arizona law from excluding those whom federal law admits. It is quite something else to say that a violation of Arizona law cannot be punished more severely than a violation of federal law. Especially where (as here) the State is defending its own sovereign interests, there is no precedent for such a limitation. The sale of illegal drugs, for example, ordinarily violates state law as well as federal law, and no one thinks that the state penalties cannot exceed the federal. As I have discussed, moreover, “field preemption” cannot establish a prohibition of additional state penalties in the area of immigration.

§5(C)

The Court concludes that § 5(C) “would interfere with the careful balance struck by Congress,” (another field pre-emption notion, by the way) but that is easy to say and impossible to demonstrate. The Court relies primarily on the fact that “[p]roposals to make unauthorized work a criminal offense were debated and discussed during the long process of drafting [the Immigration Reform and Control Act of 1986 (IRCA) ],” “[b]ut Congress rejected them.” There is no more reason to believe that this rejection was expressive of a desire that there be no sanctions on employees, than expressive of a desire that such sanctions be left to the States. To tell the truth, it was most likely expressive of what inaction ordinarily expresses: nothing at all. It is a “naïve assumption that the failure of a bill to make it out of committee, or to be adopted when reported to the floor, is the same as a congressional rejection of what the bill contained.”

The brief for the Government in this case asserted that “the Executive Branch's ability to exercise discretion and set priorities is particularly important because of the need to allocate scarce enforcement resources wisely.” Of course there is no reason why the Federal Executive's need to allocate its scarce enforcement resources should disable Arizona from devoting its resources to illegal immigration in Arizona that in its view the Federal Executive has given short shrift.

Must Arizona's ability to protect its borders yield to the reality that Congress has provided inadequate funding for federal enforcement—or, even worse, to the Executive's unwise targeting of that funding?

Are the sovereign States at the mercy of the Federal Executive's refusal to enforce the Nation's immigration laws?

A good way of answering that question is to ask: Would the States conceivably have entered into the Union if the Constitution itself contained the Court's holding? Today's judgment surely fails that test.

As is often the case, discussion of the dry legalities that are the proper object of our attention suppresses the very human realities that gave rise to the suit. Arizona bears the brunt of the country's illegal immigration problem. Its citizens feel themselves under siege by large numbers of illegal immigrants who invade their property, strain their social services, and even place their lives in jeopardy. Federal officials have been unable to remedy the problem, and indeed have recently shown that they are unwilling to do so. Thousands of Arizona's estimated 400,000 illegal immigrants—including not just children but men and women under 30—are now assured immunity from enforcement, and will be able to compete openly with Arizona citizens for employment.

Arizona has moved to protect its sovereignty—not in contradiction of federal law, but in complete compliance with it. The laws under challenge here do not extend or revise federal immigration restrictions, but merely enforce those restrictions more effectively. If securing its territory in this fashion is not within the power of Arizona, we should cease referring to it as a sovereign State. I dissent.

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Justice BRENNAN delivered the opinion of the Court:

In 1977, the Minnesota Legislature enacted a statute banning the retail sale of milk in plastic nonreturnable, nonrefillable containers, but permitting such sale in other nonreturnable, nonrefillable containers, such as paperboard milk cartons.

The purpose of the Minnesota statute is set out as § 1:

"The legislature finds that the use of nonreturnable, nonrefillable containers for the packaging of milk and other milk products presents a solid waste management problem for the state, promotes energy waste, and depletes natural resources. The legislature therefore, in furtherance of the policies stated in Minnesota Statutes, Section 116F.01, determines that the use of nonreturnable, nonrefillable containers for packaging milk and other milk products should be discouraged and that the use of returnable and reusable packaging for these products is preferred and should be encouraged.”

Proponents of the legislation argued that it would promote resource conservation, ease solid waste disposal problems, and conserve energy. Relying on the results of studies and other information, they stressed the need to stop introduction of the plastic nonreturnable container before it became entrenched in the market. Opponents of the Act, also presenting empirical evidence, argued that the Act would not promote the goals asserted by the proponents, but would merely increase costs of retail milk products and prolong the use of ecologically undesirable paperboard milk cartons.

After the Act was passed, respondents filed suit in Minnesota District Court, seeking to enjoin its enforcement. The court . . . found that, contrary to the statement of purpose in § 1, the “actual basis” for the Act “was to promote the economic interests of certain segments of the local dairy and pulpwood industries at the expense of the economic interests of other segments of the dairy industry and the plastics industry.” The court therefore declared the Act “null, void, and unenforceable” and enjoined its enforcement . . .

When legislating in areas of legitimate local concern, such as environmental protection and resource conservation, States are nonetheless limited by the Commerce Clause. If a state law purporting to promote environmental purposes is in reality “simple economic protectionism,” we have applied a “virtually per se rule of invalidity.” Philadelphia v. New Jersey, 437 U.S. 617 (1978).[FN15] Even if a statute regulates “evenhandedly,” and imposes only “incidental” burdens on interstate commerce, the courts must nevertheless strike it down if “the burden imposed on such commerce is clearly excessive in relation to the putative local benefits.” Pike v. Bruce Church, Inc., 397 U.S. 137 (1970). Moreover, “the extent of the burden that will be tolerated will of course depend on the nature of the local interest involved, and on whether it could be promoted as well with a lesser impact on interstate activities.”

[FN15: A court may find that a state law constitutes “economic protectionism” on proof either of discriminatory effect or of discriminatory purpose. Respondents advance a “discriminatory purpose” argument, relying on a finding by the District Court that the Act’s “actual basis was to promote the economic interests of certain segments of the local dairy and pulpwood industries at the expense of the economic interests of other segments of the dairy industry and the plastics industry.” We have already considered and rejected this argument in the equal protection context, and do so in this context as well.]

Minnesota's statute does not effect “simple protectionism,” but “regulates evenhandedly” by prohibiting all milk retailers from selling their products in plastic, nonreturnable milk containers, without regard to whether the milk, the containers, or the sellers are from outside the State. This statute is therefore unlike statutes discriminating against interstate commerce, which we have consistently struck down.

Since the statute does not discriminate between interstate and intrastate commerce, the controlling question is whether the incidental burden imposed on interstate commerce by the Minnesota Act is “clearly excessive in relation to the putative local benefits.” Pike v. Bruce Church, Inc., supra, at 142. We conclude that it is not.

The burden imposed on interstate commerce by the statute is relatively minor. Milk products may continue to move freely across the Minnesota border, and since most dairies package their products in more than one type of containers, the inconvenience of having to conform to different packaging requirements in Minnesota and the surrounding States should be slight. Within Minnesota, business will presumably shift from manufacturers of plastic nonreturnable containers to producers of paperboard cartons, refillable bottles, and plastic pouches, but there is no reason to suspect that the gainers will be Minnesota firms, or the losers out-of-state firms. Indeed, two of the three dairies, the sole milk retailer, and the sole milk container producer challenging the statute in this litigation are Minnesota firms.

Pulpwood producers are the only Minnesota industry likely to benefit significantly from the Act at the expense of out-of-state firms. Respondents point out that plastic resin, the raw material used for making plastic nonreturnable milk jugs, is produced entirely by non-Minnesota firms, while pulpwood, used for making paperboard, is a major Minnesota product. Nevertheless, it is clear that respondents exaggerate the degree of burden on out-of-state interests, both because plastics will continue to be used in the production of plastic pouches, plastic returnable bottles, and paperboard itself, and because out-of-state pulpwood producers will presumably absorb some of the business generated by the Act.

Even granting that the out-of-state plastics industry is burdened relatively more heavily than the Minnesota pulpwood industry, we find that this burden is not “clearly excessive” in light of the substantial state interest in promoting conservation of energy and other natural resources and easing solid waste disposal problems, which we have already reviewed in the context of equal protection analysis. We find these local benefits ample to support Minnesota's decision under the Commerce Clause.

Justice BLACKMUN delivered the opinion of the Court.

Once again, a little fish has caused a commotion. See Hughes v. Oklahoma, 441 U.S. 322 (1979); TVA v. Hill, 437 U.S. 153 (1978); Cappaert v. United States, 426 U.S. 128 (1976). The fish in this case is the golden shiner, a species of minnow commonly used as live bait in sport fishing.

Taylor operates a bait business in Maine. Despite a Maine statute prohibiting the importation of live baitfish, he arranged to have 158,000 live golden shiners delivered to him from outside the State. The shipment was intercepted, and a federal grand jury in the District of Maine indicted Taylor for violating and conspiring to violate the Lacey Act Amendments of 1981. Section 3(a)(2)(A) of those Amendments, 16 U.S.C. § 3372(a)(2)(A), makes it a federal crime “to import, export, transport, sell, receive, acquire, or purchase in interstate or foreign commerce ... any fish or wildlife taken, possessed, transported, or sold in violation of any law or regulation of any State or in violation of any foreign law.”

Taylor moved to dismiss the indictment on the ground that Maine's import ban unconstitutionally burdens interstate commerce and therefore may not form the basis for a federal prosecution under the Lacey Act. Maine intervened to defend the validity of its statute, arguing that the ban legitimately protects the State's fisheries from parasites and nonnative species that might be included in shipments of live baitfish. . .

The Commerce Clause of the Constitution grants Congress the power “[t]o regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.” Art. I, § 8, cl. 3. “Although the Clause thus speaks in terms of powers bestowed upon Congress, the Court long has recognized that it also limits the power of the States to erect barriers against interstate trade.” Maine's statute restricts interstate trade in the most direct manner possible, blocking all inward shipments of live baitfish at the State's border. [But] the limitation imposed by the Commerce Clause on state regulatory power “is by no means absolute,” and “the States retain authority under their general police powers to regulate matters of ‘legitimate local concern,’ even though interstate commerce may be affected.”

In determining whether a State has overstepped its role in regulating interstate commerce, this Court has distinguished between state statutes that burden interstate transactions only incidentally, and those that affirmatively discriminate against such transactions. While statutes in the first group violate the Commerce Clause only if the burdens they impose on interstate trade are “clearly excessive in relation to the putative local benefits,” Pike v. Bruce Church, Inc., 397 U.S. 137, 142 (1970), statutes in the second group are subject to more demanding scrutiny. [O]nce a state law is shown to discriminate against interstate commerce “either on its face or in practical effect,” the burden falls on the State to demonstrate both that the statute “serves a legitimate local purpose,” and that this purpose could not be served as well by available nondiscriminatory means.

The District Court found after an evidentiary hearing that both parts of the [heightened scrutiny] test were satisfied, but the Court of Appeals disagreed. We conclude that the Court of Appeals erred in setting aside the findings of the District Court.

The prosecution experts testified that live baitfish imported into the State posed two significant threats to Maine's unique and fragile fisheries. First, Maine's population of wild fish—including its own indigenous golden shiners—would be placed at risk by three types of parasites prevalent in out-of-state baitfish, but not common to wild fish in Maine. Second, nonnative species inadvertently included in shipments of live baitfish could disturb Maine's aquatic ecology to an unpredictable extent by competing with native fish for food or habitat, by preying on native species, or by disrupting the environment in more subtle ways.

The prosecution experts further testified that there was no satisfactory way to inspect shipments of live baitfish for parasites or commingled species. According to their testimony, the small size of baitfish and the large quantities in which they are shipped made inspection for commingled species “a physical impossibility.”  Parasite inspection posed a separate set of difficulties because the examination procedure required destruction of the fish. Although statistical sampling and inspection techniques had been developed for salmonids (i.e., salmon and trout), so that a shipment could be certified parasite-free based on a standardized examination of only some of the fish, no scientifically accepted procedures of this sort were available for baitfish.

Appellee's expert denied that any scientific justification supported Maine's total ban on the importation of baitfish. He testified that none of the three parasites discussed by the prosecution witnesses posed any significant threat to fish in the wild, and that sampling techniques had not been developed for baitfish precisely because there was no need for them. 

[T]he District Court, after an independent review of the evidence . . . found that Maine “clearly has a legitimate and substantial purpose in prohibiting the importation of live baitfish,” because “substantial uncertainties” surrounded the effects that baitfish parasites would have on the State's unique population of wild fish, and the consequences of introducing nonnative species were similarly unpredictable. Second, the court concluded that less discriminatory means of protecting against these threats were currently unavailable, and that, in particular, testing procedures for baitfish parasites had not yet been devised. Even if procedures of this sort could be effective, the court found that their development probably would take a considerable amount of time. [The Court of Appeals reversed, disagreeing with the district court's finding that no less discriminatory alternatives were available to the State].

Although the proffered justification for any local discrimination against interstate commerce must be subjected to “the strictest scrutiny,” the empirical component of that scrutiny, like any other form of factfinding, “ ‘is the basic responsibility of district courts, rather than appellate courts,’”

No matter how one describes the abstract issue whether “alternative means could promote this local purpose as well without discriminating against interstate commerce,” the more specific question whether scientifically accepted techniques exist for the sampling and inspection of live baitfish is one of fact, and the District Court's finding that such techniques have not been devised cannot be characterized as clearly erroneous. Indeed, the record probably could not support a contrary finding.

Nor do we think that much doubt is cast on the legitimacy of Maine's purposes by what the Court of Appeals took to be signs of protectionist intent. Shielding in-state industries from out-of-state competition is almost never a legitimate local purpose, and state laws that amount to “simple economic protectionism” consequently have been subject to a “virtually per se rule of invalidity.” But there is little reason in this case to believe that the legitimate justifications the State has put forward for its statute are merely a sham or a “post hoc rationalization.”

The Commerce Clause significantly limits the ability of States and localities to regulate or otherwise burden the flow of interstate commerce, but it does not elevate free trade above all other values. As long as a State does not needlessly obstruct interstate trade or attempt to “place itself in a position of economic isolation,” it retains broad regulatory authority to protect the health and safety of its citizens and the integrity of its natural resources. The evidence in this case amply supports the District Court's findings that Maine's ban on the importation of live baitfish serves legitimate local purposes that could not adequately be served by available nondiscriminatory alternatives. This is not a case of arbitrary discrimination against interstate commerce; the record suggests that Maine has legitimate reasons, “apart from their origin, to treat [out-of-state baitfish] differently,” Philadelphia v. New Jersey, 437 U.S., at 627.

Justice STEVENS, dissenting.

There is something fishy about this case. Maine is the only State in the Union that blatantly discriminates against out-of-state baitfish by flatly prohibiting their importation. Although golden shiners are already present and thriving in Maine (and, perhaps not coincidentally, the subject of a flourishing domestic industry), Maine excludes golden shiners grown and harvested (and, perhaps not coincidentally sold) in other States. This kind of stark discrimination against out-of-state articles of commerce requires rigorous justification by the discriminating State. “When discrimination against commerce of the type we have found is demonstrated, the burden falls on the State to justify it both in terms of the local benefits flowing from the statute and the unavailability of nondiscriminatory alternatives adequate to preserve the local interests at stake.” Hunt v. Washington State Apple Advertising Comm'n, 432 U.S. 333, 353 (1977).

Since the State engages in obvious discrimination against out-of-state commerce, it should be put to its proof. Ambiguity about dangers and alternatives should actually defeat, rather than sustain, the discriminatory measure.

This is not to derogate the State's interest in ecological purity. But the invocation of environmental protection or public health has never been thought to confer some kind of special dispensation from the general principle of nondiscrimination in interstate commerce. “A different view, that the ordinance is valid simply because it professes to be a health measure, would mean that the Commerce Clause of itself imposes no restraints on state action other than those laid down by the Due Process Clause, save for the rare instance where a state artlessly discloses an avowed purpose to discriminate against interstate goods.” Dean Milk Co. v. Madison, 340 U.S. 349, 354 (1951). If Maine wishes to rely on its interest in ecological preservation, it must show that interest, and the infeasibility of other alternatives, with far greater specificity. Otherwise, it must further that asserted interest in a manner far less offensive to the notions of comity and cooperation that underlie the Commerce Clause.

Mr. Justice STEWART delivered the opinion of the Court.

The appellee is a company engaged in extensive commercial farming operations in Arizona and California. The appellant is the official charged with enforcing the Arizona Fruit and Vegetable Standardization Act. A provision of the Act requires that, with certain exceptions, all cantaloupes grown in Arizona and offered for sale must ‘be packed in regular compact arrangement in closed standard containers approved by the supervisor * * *.’ Invoking his authority under that provision, the appellant issued an order prohibiting the appellee company from transporting uncrated cantaloupes from its Parker, Arizona, ranch to nearby Blythe, California, for packing and processing. The company then brought this action in a federal court to enjoin the order as unconstitutional.

The facts are not in dispute, having been stipulated by the parties. The appellee company has for many years been engaged in the business of growing, harvesting, processing, and packing fruits and vegetables at numerous locations in Arizona and California for interstate shipment to markets throughout the Nation. One of the company's newest operations is at Parker, Arizona, where, pursuant to a 1964 lease with the Secretary of the Interior, the Colorado River Indian Agency, and the Colorado River Indian Tribes, it undertook to develop approximately 6,400 acres of uncultivated, arid land for agricultural use. The company has spent more than $3,000,000 in clearing, leveling, irrigating, and otherwise developing this land. The company began growing cantaloupes on part of the land in 1966, and has harvested a large cantaloupe crop there in each subsequent year. The cantaloupes are considered to be of higher quality than those grown in other areas of the State. Because they are highly perishable, cantaloupes must upon maturity be immediately harvested, processed, packed, and shipped in order to prevent spoliage. The processing and packing operations can be performed only in packing sheds. Because the company had no such facilities at Parker, it transported its 1966 Parker cantaloupe harvest in bulk loads to Blythe, California, 31 miles away, where it operated centralized and efficient packing shed facilities. There the melons were sorted, inspected, packed, and shipped. In 1967 the company again sent its Parker cantaloupe crop to Blythe for sorting, packing, and shipping. In 1968, however, the appellant entered the order here in issue, prohibiting the company from shipping its cantaloupes out of the State unless they were packed in containers in a manner and of a kind approved by the appellant. Because cantaloupes in the quantity involved can be so packed only in packing sheds, and because no such facilities were available to the company at Parker or anywhere else nearby in Arizona, the company faced imminent loss of its anticipated 1968 cantaloupe crop in the gross amount of $700,000. [The parties also stipulated that "the practical effect of the appellant's order would be to compel the company to build packing facilities in or near Parker, Arizona, that would take many months to construct and would cost approximately $200,000."]

Although the criteria for determining the validity of state statutes affecting interstate commerce have been variously stated, the general rule that emerges can be phrased as follows: Where the statute regulates even-handedly to effectuate a legitimate local public interest, and its effects on interstate commerce are only incidental, it will be upheld unless the burden imposed on such commerce is clearly excessive in relation to the putative local benefits. If a legitimate local purpose is found, then the question becomes one of degree. And the extent of the burden that will be tolerated will of course depend on the nature of the local interest involved, and on whether it could be promoted as well with a lesser impact on interstate activities.

At the core of the Arizona Fruit and Vegetable Standardization Act are the requirements that fruits and vegetables shipped from Arizona meet certain standards of wholesomeness and quality, and that they be packed in standard containers in such a way that the outer layer or exposed portion of the pack does not ‘materially misrepresent’ the quality of the lot as a whole. The impetus for the Act was the fear that some growers were shipping inferior or deceptively packaged produce, with the result that the reputation of Arizona growers generally was being tarnished and their financial return concomitantly reduced. It was to prevent this that the Act was passed in 1929. The State has stipulated that its primary purpose is to promote and preserve the reputation of Arizona growers by prohibiting deceptive packaging.

We are not, then, dealing here with ‘state legislation in the field of safety where the propriety of local regulation has long been recognized,' or with an Act designed to protect consumers in Arizona from contaminated or unfit goods. Its purpose and design are simply to protect and enhance the reputation of growers within the State. These are surely legitimate state interest.

But application of the Act through the appellant's order to the appellee company has a far different impact, and quite a different purpose. The cantaloupes grown by the company at Parker are of exceptionally high quality. The company does not pack them in Arizona and cannot do so without making a capital expenditure of approximately $200,000. It transports them in bulk to nearby Blythe, California, where they are sorted, inspected, packed, and shipped in containers that do not identify them as Arizona cantaloupes, but bear the name of their California packer. The appellant's order would forbid the company to pack its cantaloupes outside Arizona, not for the purpose of keeping the reputation of its growers unsullied, but to enhance their reputation through the reflected good will of the company's superior produce. The appellant, in other words, is not complaining because the company is putting the good name of Arizona on an inferior or deceptively packaged product, but because it is not putting that name on a product that is superior and well packaged. As the appellant's brief puts the matter, ‘It is within Arizona's legitimate interest to require that interstate cantaloupe purchasers be informed that this high quality fruit was grown in Arizona’.

[W]e may assume that the asserted state interest is a legitimate one. But the State's tenuous interest in having the company's cantaloupes identified as originating in Arizona cannot constitutionally justify the requirement that the company build and operate an unneeded $200,000 packing plant in the State. The nature of that burden is, constitutionally, more significant than its extent. For the Court has viewed with particular suspicion state statutes requiring business operations to be performed in the home State that could more efficiently be performed elsewhere. Even where the State is pursuing a clearly legitimate local interest, this particular burden on commerce has been declared to be virtually per se illegal.

While the order issued under the Arizona statute does not impose such rigidity on an entire industry, it does impose just such a straitjacket on the appellee company with respect to the allocation of its interstate resources. Such an incidental consequence of a regulatory scheme could perhaps be tolerated if a more compelling state interest were involved. But here the State's interest is minimal at best—certainly less substantial than a State's interest in securing employment for its people. If the Commerce Clause forbids a State to require work to be done within its jurisdiction to promote local employment, then surely it cannot permit a State to require a person to go into a local packing business solely for the sake of enhancing the reputation of other producers within its borders.

Mr. Justice DOUGLAS delivered the opinion of the Court.

We are asked in this case to hold that an Illinois statute requiring the use of a certain type of rear fender mudguard on trucks and trailers operated on the highways of that State conflicts with the Commerce Clause of the Constitution. The statutory specification for this type of mudguard provides that the guard shall contour the rear wheel, with the inside surface being relatively parallel to the top 90 degrees of the rear 180 degrees of the whole surface. The surface of the guard must extend downward to within 10 inches from the ground when the truck is loaded to its maximum legal capacity. The guards must be wide enough to cover the width of the protected tire, must be installed not more than 6 inches from the tire surface when the vehicle is loaded to maximum capacity, and must have a lip or flange on its outer edge of not less than 2 inches.

Appellees, interstate motor carriers holding certificates from the Interstate Commerce Commission, challenged the constitutionality of the Illinois Act. A specially constituted three-judge District Court concluded that it unduly and unreasonably burdened and obstructed interstate commerce, because it made the conventional or straight mudflap, which is legal in at least 45 States, illegal in Illinois, and because the statute, taken together with a Rule of the Arkansas Commerce Commission requiring straight mudflaps, rendered the use of the same motor vehicle equipment in both States impossible. The statute was declared to be violative of the Commerce Clause and appellants were enjoined from enforcing it.

The power of the State to regulate the use of its highways is broad and pervasive. We have recognized the peculiarly local nature of this subject of safety, and have upheld state statutes applicable alike to interstate and intrastate commerce, despite the fact that they may have an impact on interstate commerce. South Carolina State Highway Dept. v. Barnwell Bros., 303 U.S. 177. The regulation of highways ‘is akin to quarantine measures, same laws, and like local regulations of rivers, harbors, piers, and docks, with respect to which the state has exceptional scope for the exercise of its regulatory power, and which, Congress not acting, have been sustained even though they materially interfere with interstate commerce.’

These safety measures carry a strong presumption of validity when challenged in court. If there are alternative ways of solving a problem, we do not sit to determine which of them is best suited to achieve a valid state objective. Policy decisions are for the state legislature, absent federal entry into the field. Unless we can conclude on the whole record that ‘the total effect of the law as a safety measure in reducing accidents and casualties is so slight or problematical as not to outweigh the national interest in keeping interstate commerce free from interferences which seriously impede it,’ we must uphold the statute.

The District Court found that ‘since it is impossible for a carrier operating in interstate commerce to determine which of its equipment will be used in a particular area, or on a particular day, or days, carriers operating into or through Illinois * * * will be required to equip all their trailers in accordance with the requirements of the Illinois Splash Guard statute.’ With two possible exceptions the mudflaps required in those States which have mudguard regulations would not meet the standards required by the Illinois statute. The cost of installing the contour mudguards is $30 or more per vehicle. The District Court found that the initial cost of installing those mudguards on all the trucks owned by the appellees ranged from $4,500 to $45,840. There was also evidence in the record to indicate that the cost of maintenance and replacement of these guards is substantial.

Illinois introduced evidence seeking to establish that contour mudguards had a decided safety factor in that they prevented the throwing of debris into the faces of drivers of passing cars and into the windshields of a following vehicle. But the District Court in its opinion stated that it was ‘conclusively shown that the contour mud flap possesses no advantages over the conventional or straight mud flap previously required in Illinois and presently required in most of the states,’ and that ‘there is rather convincing testimony that use of the contour flap creates hazards previously unknown to those using the highways.’ These hazards were found to be occasioned by the fact that this new type of mudguard tended to cause an accumulation of heat in the brake drum, thus decreasing the effectiveness of brakes, and by the fact that they were susceptible of being hit and bumped when the trucks were backed up and of falling off on the highway.

An order of the Arkansas Commerce Commission, already mentioned, requires that trailers operating in that State be equipped with straight or conventional mudflaps. Vehicles equipped to meet the standards of the Illinois statute would not comply with Arkansas standards, and vice versa. Thus if a trailer is to be operated in both States, mudguards would have to be interchanged, causing a significant delay in an operation where prompt movement may be of the essence. It was found that from two to four hours of labor are required to install or remove a contour mudguard. Moreover, the contour guard is attached to the trailer by welding and if the trailer is conveying a cargo of explosives (e.g., for the United States Government) it would be exceedingly dangerous to attempt to weld on a contour mudguard without unloading the trailer.

It was also found that the Illinois statute seriously interferes with the ‘interline’ operations of motor carriers—that is to say, with the interchanging of trailers between an originating carrier and another carrier when the latter serves an area not served by the former. These ‘interline’ operations provide a speedy through-service for the shipper. Interlining contemplates the physical transfer of the entire trailer; there is no unloading and reloading of the cargo. The interlining process is particularly vital in connection with shipment of perishables, which would spoil if unloaded before reaching their destination, or with the movement of explosives carried under seal. Of course, if the originating carrier never operated in Illinois, it would not be expected to equip its trailers with contour mudguards. Yet if an interchanged trailer of that carrier were hauled to or through Illinois, the statute would require that it contain contour guards. Since carriers which operate in and through Illinois cannot compel the originating carriers to equip their trailers with contour guards, they may be forced to cease interlining with those who do not meet the Illinois requirements. Over 60 percent of the business of 5 of the 6 plaintiffs is interline traffic. For the other it constitutes 30 percent. All of the plaintiffs operate extensively in interstate commerce, and the annual mileage in Illinois of none of them exceeds 7 percent of total mileage.

This is one of those cases—few in number—where local safety measures that are nondiscriminatory place an unconstitutional burden on interstate commerce. This conclusion is especially underlined by the deleterious effect which the Illinois law will have on the ‘interline’ operation of interstate motor carriers. The conflict between the Arkansas regulation and the Illinois regulation also suggests that this regulation of mudguards is not one of those matters ‘admitting of diversity of treatment, according to the special requirements of local conditions,’

We deal not with absolutes but with questions of degree. The state legislatures plainly have great leeway in providing safety regulations for all vehicles—interstate as well as local. Our decisions so hold. Yet the heavy burden which the Illinois mudguard law places on the interstate movement of trucks and trailers seems to us to pass the permissible limits even for safety regulations.

Justice GORSUCH announced the judgment of the Court and delivered the opinion of the Court, except as to Parts IV–B, IV–C, and IV–D.

Recently, California adopted a law banning the in-state sale of certain pork products derived from breeding pigs confined in stalls so small they cannot lie down, stand up, or turn around. In response, two groups of out-of-state pork producers filed this lawsuit, arguing that the law unconstitutionally interferes with their preferred way of doing business in violation of this Court’s dormant Commerce Clause precedents. Both the district court and court of appeals dismissed the producers’ complaint for failing to state a claim.

We affirm. Companies that choose to sell products in various States must normally comply with the laws of those various States. Assuredly, under this Court’s dormant Commerce Clause decisions, no State may use its laws to discriminate purposefully against out-of-state economic interests. But the pork producers do not suggest that California’s law offends this principle. Instead, they invite us to fashion two new and more aggressive constitutional restrictions on the ability of States to regulate goods sold within their borders. We decline that invitation. While the Constitution addresses many weighty issues, the type of pork chops California merchants may sell is not on that list.

I

Modern American grocery stores offer a dizzying array of choice. Products may be marketed as free range, wild caught, or graded by quality (prime, choice, select, and beyond). The pork products at issue here, too, sometimes come with “antibiotic-free” and “crate-free” labels. Much of this product differentiation reflects consumer demand, informed by individual taste, health, or moral considerations.

Informed by similar concerns, States (and their predecessors) have long enacted laws aimed at protecting animal welfare. As far back as 1641, the Massachusetts Bay Colony prohibited “Tirranny or Crueltie towards any bruite Creature.” Today, Massachusetts prohibits the sale of pork products from breeding pigs (or their offspring) if the breeding pig has been confined “in a manner that prevents [it] from lying down, standing up, fully extending [its] limbs or turning around freely.” Nor is that State alone. Florida’s Constitution prohibits “any person [from] confin[ing] a pig during pregnancy ... in such a way that she is prevented from turning around freely.” Art. X, § 21(a). Arizona, Maine, Michigan, Oregon, and Rhode Island, too, have laws regulating animal confinement practices within their borders.

This case involves a challenge to a California law known as Proposition 12. In November 2018 and with the support of about 63% of participating voters, California adopted a ballot initiative that revised the State’s existing standards for the in-state sale of eggs and announced new standards for the in-state sale of pork and veal products. As relevant here, Proposition 12 forbids the in-state sale of whole pork meat that comes from breeding pigs (or their immediate offspring) that are “confined in a cruel manner.” Subject to certain exceptions, the law deems confinement “cruel” if it prevents a pig from “lying down, standing up, fully extending [its] limbs, or turning around freely.” 

A spirited debate preceded the vote on Proposition 12. Proponents observed that, in some farming operations, pregnant pigs remain “[e]ncased” for 16 weeks in “fit-to-size” metal crates. These animals may receive their only opportunity for exercise when they are moved to a separate barn to give birth and later returned for another 16 weeks of pregnancy confinement—with the cycle repeating until the pigs are slaughtered. Proponents hoped that Proposition 12 would go a long way toward eliminating pork sourced in this manner “from the California marketplace.” Proponents also suggested that the law would have health benefits for consumers because “packing animals in tiny, filthy cages increases the risk of food poisoning.”

Opponents argued that existing farming practices did a better job of protecting animal welfare (for example, by preventing pig-on-pig aggression) and ensuring consumer health (by avoiding contamination) than Proposition 12 would. They also warned voters that Proposition 12 would require some farmers and processors to incur new costs. Ones that might be “passed through” to California consumers. 

Shortly after Proposition 12’s adoption, two organizations—the National Pork Producers Council and the American Farm Bureau Federation (collectively, petitioners)—filed this lawsuit on behalf of their members who raise and process pigs. Petitioners alleged that Proposition 12 violates the U. S. Constitution by impermissibly burdening interstate commerce.

In support of that legal claim, petitioners pleaded a number of facts. [Petitions alleged that complying with Proposition 12] will require certain processing firms to make substantial new capital investments. Ultimately, petitioners estimated that “compliance with Proposition 12 will increase production costs” by “9.2% ... at the farm level.” These compliance costs will fall on California and out-of-state producers alike.But because California imports almost all the pork it consumes, petitioners emphasized, “the majority” of Proposition 12’s compliance costs will be initially borne by out-of-state firms.

II

The Constitution vests Congress with the power to “regulate Commerce ... among the several States.” Despite the persistent efforts of certain pork producers, Congress has yet to adopt any statute that might displace Proposition 12 or laws regulating pork production in other States.

That has led petitioners to resort to litigation, pinning their hopes on what has come to be called the dormant Commerce Clause. Reading between the Constitution’s lines, petitioners observe, this Court has held that the Commerce Clause not only vests Congress with the power to regulate interstate trade; the Clause also “contain[s] a further, negative command,” one effectively forbidding the enforcement of “certain state [economic regulations] even when Congress has failed to legislate on the subject.” 

In its “modern” cases, this Court has said that the Commerce Clause prohibits the enforcement of state laws “driven by ... ‘economic protectionism—that is, regulatory measures designed to benefit in-state economic interests by burdening out-of-state competitors.’ ”

Admittedly, some “Members of the Court have authored vigorous and thoughtful critiques of this interpretation” of the Commerce Clause. They have not necessarily quarreled with the antidiscrimination principle. But they have suggested that it may be more appropriately housed elsewhere in the Constitution.

Whatever one thinks about these critiques, we have no need to engage with any of them to resolve this case. Even under our received dormant Commerce Clause case law, petitioners begin in a tough spot. They do not allege that California’s law seeks to advantage in-state firms or disadvantage out-of-state rivals. In fact, petitioners disavow any discrimination-based claim, conceding that Proposition 12 imposes the same burdens on in-state pork producers that it imposes on out-of-state ones. As petitioners put it, “the dormant Commerce Clause ... bar on protectionist state statutes that discriminate against interstate commerce ... is not in issue here.”

III

Having conceded that California’s law does not implicate the antidiscrimination principle at the core of this Court’s dormant Commerce Clause cases, petitioners are left to pursue two more ambitious theories. In the first, petitioners invoke what they call “extraterritoriality doctrine.” They contend that our dormant Commerce Clause cases suggest an additional and “almost per se” rule forbidding enforcement of state laws that have the “practical effect of controlling commerce outside the State,” even when those laws do not purposely discriminate against out-of-state economic interests. Petitioners further insist that Proposition 12 offends this “almost per se” rule because the law will impose substantial new costs on out-of-state pork producers who wish to sell their products in California.

[The Court then rejected Petitioners' claim that three prior Supreme Court cases established the proposed per se rule.] Petitioners [argue these cases] suggested an “almost per se” rule against state laws with “extraterritorial effects.”

Consider, too, the strange places petitioners’ alternative interpretation could lead. In our interconnected national marketplace, many (maybe most) state laws have the “practical effect of controlling” extraterritorial behavior. State income tax laws lead some individuals and companies to relocate to other jurisdictions. Environmental laws often prove decisive when businesses choose where to manufacture their goods. Add to the extraterritorial-effects list all manner of “libel laws, securities requirements, charitable registration requirements, franchise laws, tort laws,” and plenty else besides. Nor, as we have seen, is this a recent development. Since the founding, States have enacted an “immense mass” of “[i]nspection laws, quarantine laws, [and] health laws of every description” that have a “considerable” influence on commerce outside their borders. Petitioners’ “almost per se” rule against laws that have the “practical effect” of “controlling” extraterritorial commerce would cast a shadow over laws long understood to represent valid exercises of the States’ constitutionally reserved powers. It would provide neither courts nor litigants with meaningful guidance in how to resolve disputes over them. Instead, it would invite endless litigation and inconsistent results.

In rejecting petitioners’ “almost per se” theory we do not mean to trivialize the role territory and sovereign boundaries play in our federal system. Certainly, the Constitution takes great care to provide rules for fixing and changing state borders. Art. IV, § 3, cl. 1. Doubtless, too, courts must sometimes referee disputes about where one State’s authority ends and another’s begins—both inside and outside the commercial context. In carrying out that task, this Court has recognized the usual “legislative power of a State to act upon persons and property within the limits of its own territory,” a feature of our constitutional order that allows “different communities” to live “with different local standards.”

To resolve disputes about the reach of one State’s power, this Court has long consulted original and historical understandings of the Constitution’s structure and the principles of “sovereignty and comity” it embraces.This Court has invoked as well a number of the Constitution’s express provisions—including “the Due Process Clause and the Full Faith and Credit Clause.” The antidiscrimination principle found in our dormant Commerce Clause cases may well represent one more effort to mediate competing claims of sovereign authority under our horizontal separation of powers. But none of this means, as petitioners suppose, that any question about the ability of a State to project its power extraterritorially must yield to an “almost per se” rule under the dormant Commerce Clause.

IV

Failing in their first theory, petitioners retreat to a second they associate with Pike v. Bruce Church, Inc., 397 U.S. 137 (1970). Under Pike they say, a court must at least assess “ ‘the burden imposed on interstate commerce’ ” by a state law and prevent its enforcement if the law’s burdens are “ ‘clearly excessive in relation to the putative local benefits.’ ” Petitioners then rattle off a litany of reasons why they believe the benefits Proposition 12 secures for Californians do not outweigh the costs it imposes on out-of-state economic interests. We see problems with this theory too.

A

In the first place, petitioners overstate the extent to which Pike and its progeny depart from the antidiscrimination rule that lies at the core of our dormant Commerce Clause jurisprudence. As this Court has previously explained, “no clear line” separates the Pike line of cases from our core antidiscrimination precedents. While many of our dormant Commerce Clause cases have asked whether a law exhibits “ ‘facial discrimination,’ ” “several cases that have purported to apply [Pike,] including Pike itself,” have “turned in whole or in part on the discriminatory character of the challenged state regulations.” In other words, if some of our cases focus on whether a state law discriminates on its face, the Pike line serves as an important reminder that a law’s practical effects may also disclose the presence of a discriminatory purpose.

Pike itself illustrates the point. That case concerned an Arizona order requiring cantaloupes grown in state to be processed and packed in state. The Court held that Arizona’s order violated the dormant Commerce Clause. Even if that order could be fairly characterized as facially neutral, the Court stressed that it “requir[ed] business operations to be performed in [state] that could more efficiently be performed elsewhere.” The “practical effect[s]” of the order in operation thus revealed a discriminatory purpose—an effort to insulate in-state processing and packaging businesses from out-of-state competition.

Other cases in the Pike line underscore the same message. In Minnesota v. Clover Leaf Creamery, the Court found no impermissible burden on interstate commerce because, looking to the law’s effects, “there [was] no reason to suspect that the gainers” would be in-state firms or that “the losers [would be] out-of-state firms.” Similarly, in Exxon Corp. v. Maryland, the Court keyed to the fact that the effect of the challenged law was only to shift business from one set of out-of-state suppliers to another. In each of these cases and many more, the presence or absence of discrimination in practice proved decisive.

Nor does any of this help petitioners in this case. They not only disavow any claim that Proposition 12 discriminates on its face. They nowhere suggest that an examination of Proposition 12’s practical effects in operation would disclose purposeful discrimination against out-of-state businesses. While this Court has left the “courtroom door open” to challenges premised on “even nondiscriminatory burdens,” and while “a small number of our cases have invalidated state laws ... that appear to have been genuinely nondiscriminatory,” petitioners’ claim falls well outside Pike's heartland. That is not an auspicious start.

B [joined by only Justices Thomas and Barrett]

Matters do not improve from there. While Pike has traditionally served as another way to test for purposeful discrimination against out-of-state economic interests, and while some of our cases associated with that line have expressed special concern with certain state regulation of the instrumentalities of interstate transportation, petitioners urge us to read Pike as authorizing judges to strike down duly enacted state laws regulating the in-state sale of ordinary consumer goods (like pork) based on nothing more than their own assessment of the relevant law’s “costs” and “benefits.”

That we can hardly do. Whatever other judicial authorities the Commerce Clause may imply, that kind of freewheeling power is not among them. Petitioners point to nothing in the Constitution’s text or history that supports such a project. And our cases have expressly cautioned against judges using the dormant Commerce Clause as “a roving license for federal courts to decide what activities are appropriate for state and local government to undertake.” 

Not only is the task petitioners propose one the Commerce Clause does not authorize judges to undertake. This Court has also recognized that judges often are “not institutionally suited to draw reliable conclusions of the kind that would be necessary ... to satisfy [the] Pike" test as petitioners conceive it.

Our case illustrates the problem. On the “cost” side of the ledger, petitioners allege they will face increased production expenses because of Proposition 12. On the “benefits” side, petitioners acknowledge that Californians voted for Proposition 12 to vindicate a variety of interests, many noneconomic. How is a court supposed to compare or weigh economic costs (to some) against noneconomic benefits (to others)? No neutral legal rule guides the way. The competing goods before us are insusceptible to resolution by reference to any juridical principle. Really, the task is like being asked to decide “whether a particular line is longer than a particular rock is heavy.”

Faced with this problem, petitioners reply that we should heavily discount the benefits of Proposition 12. They say that California has little interest in protecting the welfare of animals raised elsewhere and the law’s health benefits are overblown. But along the way, petitioners offer notable concessions too. They acknowledge that States may sometimes ban the in-state sale of products they deem unethical or immoral without regard to where those products are made (for example, goods manufactured with child labor). And, at least arguably, Proposition 12 works in just this way—banning from the State all whole pork products derived from practices its voters consider “cruel.” Petitioners also concede that States may often adopt laws addressing even “imperfectly understood” health risks associated with goods sold within their borders. And, again, no one disputes that some who voted for Proposition 12 may have done so with just that sort of goal in mind.

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.

More accurately, your guess is better than ours. In a functioning democracy, policy choices like these usually belong to the people and their elected representatives. They are entitled to weigh the relevant “political and economic” costs and benefits for themselves, and “try novel social and economic experiments” if they wish.

If, as petitioners insist, California’s law really does threaten a “massive” disruption of the pork industry, —if pig husbandry really does “ ‘imperatively demand’ ” a single uniform nationwide rule,—they are free to petition Congress to intervene. Under the (wakeful) Commerce Clause, that body enjoys the power to adopt federal legislation that may preempt conflicting  state laws. That body is better equipped than this Court to identify and assess all the pertinent economic and political interests at play across the country. And that body is certainly better positioned to claim democratic support for any policy choice it may make. But so far, Congress has declined the producers’ sustained entreaties for new legislation. And with that history in mind, it is hard not to wonder whether petitioners have ventured here only because winning a majority of a handful of judges may seem easier than marshaling a majority of elected representatives across the street.

C [joined by only Justices Thomas, Sotomayor, and Kagan]

Even as petitioners conceive Pike they face a problem. As they read it, Pike requires a plaintiff to plead facts plausibly showing that a challenged law imposes “substantial burdens” on interstate commerce before a court may assess the law’s competing benefits or weigh the two sides against each other. And, tellingly, the complaint before us fails to clear even that bar.

To appreciate petitioners’ problem, compare our case to Exxon. This Court found the allegations in Exxon’s complaint insufficient as a matter of law to demonstrate a substantial burden on interstate commerce. Without question, Maryland’s law favored one business structure (independent gas station retailers) over another (vertically integrated production and retail firms). The law also promised to increase retail gas prices for Maryland consumers, allowing some to question its “wisdom.” But, the Court found, Exxon failed to plead facts leading, “either logically or as a practical matter, to [the] conclusion that the State [was] discriminating against interstate commerce.” The company failed to do so because, on its face, Maryland’s law welcomed competition from interstate retail gas station chains that did not produce petroleum. And as far as anyone could tell, the law’s “practical effect” wasn’t to protect in-state producers; it was to shift market share from one set of out-of-state firms (vertically integrated businesses) to another (retail gas station firms). This Court squarely rejected the view that this predicted “ ‘change [in] the market structure’ ” would “impermissibly burde[n] interstate commerce.” If the dormant Commerce Clause protects the “interstate market ... from prohibitive or burdensome regulations,” the Court held, it does not protect “particular ... firms” or “particular structure[s] or methods of operation.”

If Maryland’s law did not impose a sufficient burden on interstate commerce to warrant further scrutiny, the same must be said for Proposition 12. In Exxon, vertically integrated businesses faced a choice: They could divest their production capacities or withdraw from the local retail market. Here, farmers and vertically integrated processors have at least as much choice: They may provide all their pigs the space the law requires; they may segregate their operations to ensure pork products entering California meet its standards; or they may withdraw from that State’s market. In Exxon, the law posed a choice only for out-of-state firms. Here, the law presents a choice primarily—but not exclusively—for out-of-state businesses; California does have some pork producers affected by Proposition 12. [As in Exxon,] California market share previously enjoyed by one group of profit-seeking, out-of-state businesses (farmers who stringently confine pigs and processors who decline to segregate their products) will be replaced by another (those who raise and trace Proposition 12-compliant pork).

Of course, as the complaint alleges, a shift from one set of production methods to another promises some costs. But the complaint concedes that complying producers will be able to “pas[s] along” at least “some” of their increased costs to consumers. And no one thinks that costs ultimately borne by in-state consumers thanks to a law they adopted counts as a cognizable harm under our dormant Commerce Clause precedents. Nor does the complaint allege facts plausibly suggesting that out-of-state consumers indifferent to pork production methods will have to pick up the tab (let alone explain how petitioners might sue to vindicate their interests).

D [joined by only Justices Thomas and Barrett]

THE CHIEF JUSTICE’s concurrence in part and dissent in part (call it “the lead dissent”) offers a contrasting view. Correctly, it begins by rejecting petitioners’ “almost per se” rule against laws with extraterritorial effects. And correctly, it disapproves reading Pike to endorse a “freewheeling judicial weighing of benefits and burdens.” But for all it gets right, in other respects it goes astray. In places, the lead dissent seems to advance a reading of Pike that would permit judges to enjoin the enforcement of any state law restricting the sale of an ordinary consumer good if the law threatens an “ ‘excessive’ ” “har[m] to the interstate market” for that good. It is an approach that would go much further than our precedents permit. So much further, in fact, that it isn’t clear what separates the lead dissent’s approach from others it purports to reject.

Consider an example. Today, many States prohibit the sale of horsemeat for human consumption. But these prohibitions “har[m] the interstate market” for horsemeat by denying outlets for its sale. Not only that, they distort the market for animal products more generally by pressuring horsemeat manufacturers to transition to different products, ones they can lawfully sell nationwide. Under the lead dissent’s test, all it would take is one complaint from an unhappy out-of-state producer and—presto—the Constitution would protect the sale of horsemeat. Just find a judge anywhere in the country who considers the burden to producers “excessive.” Rather than respecting federalism, a rule like that would require any consumer good available for sale in one State to be made available in every State.

Seeking a way around that problem, the lead dissent stumbles into another. It suggests that the burdens of Proposition 12 are particularly “substantial” because California’s law “carr[ies] implications for producers as far flung as Indiana and North Carolina.” Why is that so? Justice KAVANAUGH’s solo concurrence in part and dissent in part says the quiet part aloud: California’s market is so lucrative that almost any in-state measure will influence how out-of-state profit-maximizing firms choose to operate. But if that makes all the difference, it means voters in States with smaller markets are constitutionally entitled to greater authority to regulate in-state sales than voters in States with larger markets.

The most striking feature of both dissents, however, may be another one. They suggest that, in assessing a state law’s burdens under Pike, courts should take into account not just economic harms but also all manner of “derivative harms” to out-of-state interests. These include social costs that are “difficult to quantify” such as (in this case) costs to the “national pig population,” “animal husbandry” traditions, and (again) “industry practice.” But not even petitioners read Pike so boldly. While petitioners argue that Proposition 12 does not benefit pigs (as California has asserted), they have not asked this Court (or any court) to treat putative harms to out-of-state animal welfare or other noneconomic interests as freestanding harms cognizable under the dormant Commerce Clause.

Justice SOTOMAYOR, with whom Justice KAGAN joins, concurring in part.

I join all but Parts IV–B and IV–D of Justice GORSUCH’s opinion. Given the fractured nature of Part IV, I write separately to clarify my understanding of why petitioners’ Pike claim fails. In short, I vote to affirm the judgment because petitioners fail to allege a substantial burden on interstate commerce as required by Pike, not because of any fundamental reworking of that doctrine.

In Pike, the Court distilled a general principle from its prior cases. “Where [a] statute regulates even-handedly to effectuate a legitimate local public interest, and its effects on interstate commerce are only incidental, it will be upheld unless the burden imposed on such commerce is clearly excessive in relation to the putative local benefits.”

Pike claims that do not allege discrimination or a burden on an artery of commerce are further from Pike's core. As THE CHIEF JUSTICE recognizes, however, the Court today does not shut the door on all such Pike claims. Thus, petitioners’ failure to allege discrimination or an impact on the instrumentalities of commerce does not doom their Pike claim.

Nor does a majority of the Court endorse the view that judges are not up to the task that Pike prescribes. Justice GORSUCH, for a plurality, concludes that petitioners’ Pike claim fails because courts are incapable of balancing economic burdens against noneconomic benefits. I do not join that portion of Justice GORSUCH’s opinion. I acknowledge that the inquiry is difficult and delicate, and federal courts are well advised to approach the matter with caution. Yet, I agree with THE CHIEF JUSTICE that courts generally are able to weigh disparate burdens and benefits against each other, and that they are called on to do so in other areas of the law with some frequency. The means-ends tailoring analysis that Pike incorporates is likewise familiar to courts and does not raise the asserted incommensurability problems that trouble Justice GORSUCH.

In my view, and as Justice GORSUCH concludes for a separate plurality of the Court, petitioners’ Pike claim fails for a much narrower reason. Reading petitioners’ allegations in light of the Court’s decision in Exxon Corp. v. Governor of Maryland, 437 U.S. 117 (1978), the complaint fails to allege a substantial burden on interstate commerce. Alleging a substantial burden on interstate commerce is a threshold requirement that plaintiffs must satisfy before courts need even engage in Pike's balancing and tailoring analyses. Because petitioners have not done so, they fail to state a Pike claim.

Justice BARRETT, concurring in part.

A state law that burdens interstate commerce in clear excess of its putative local benefits flunks Pike balancing. In most cases, Pike's “general rule” reflects a commonsense principle: Where there’s smoke, there’s fire. Under our dormant Commerce Clause jurisprudence, one State may not discriminate against another’s producers or consumers. A law whose burdens fall incommensurately and inexplicably on out-of-state interests may be doing just that.

But to weigh benefits and burdens, it is axiomatic that both must be judicially cognizable and comparable. I agree with Justice GORSUCH that the benefits and burdens of Proposition 12 are incommensurable. California’s interest in eliminating allegedly inhumane products from its markets cannot be weighed on a scale opposite dollars and cents—at least not without second-guessing the moral judgments of California voters or making the kind of policy decisions reserved for politicians. 

That said, I disagree with my colleagues who would hold that petitioners have failed to allege a substantial burden on interstate commerce. The complaint plausibly alleges that Proposition 12’s costs are pervasive, burdensome, and will be felt primarily (but not exclusively) outside California. For this reason, I do not join Part IV–C of Justice GORSUCH’s opinion. 

CHIEF JUSTICE ROBERTS, with whom Justice ALITO, Justice KAVANAUGH, and Justice JACKSON join, concurring in part and dissenting in part.

I agree with the Court’s view in its thoughtful opinion that many of the leading cases invoking the dormant Commerce Clause are properly read as invalidating statutes that promoted economic protectionism. I also agree with the Court’s conclusion that our precedent does not support a per se rule against state laws with “extraterritorial” effects. But I cannot agree with the approach adopted by some of my colleagues to analyzing petitioners’ claim based on Pike.

Pike provides that nondiscriminatory state regulations are valid under the Commerce Clause “unless the burden imposed on [interstate] commerce is clearly excessive in relation to the putative local benefits.” A majority of the Court thinks that petitioners’ complaint does not make for “an auspicious start” on that claim. I would find that petitioners’ have plausibly alleged a substantial burden against interstate commerce, and would therefore vacate the judgment and remand the case for the court below to decide whether petitioners have stated a claim under Pike.

Although Pike is susceptible to misapplication as a freewheeling judicial weighing of benefits and burdens, it also reflects the basic concern of our Commerce Clause jurisprudence that there be “free private trade in the national marketplace.”

As a majority of the Court acknowledges, “we generally leave the courtroom door open to plaintiffs invoking the rule in Pike, that even nondiscriminatory burdens on commerce may be struck down on a showing that those burdens clearly outweigh the benefits of a state or local practice.” Pike extends beyond laws either concerning discrimination or governing interstate transportation.

Speaking for three Members of the Court, Justice GORSUCH objects that balancing competing interests under Pike is simply an impossible judicial task. I certainly appreciate the concern, but sometimes there is no avoiding the need to weigh seemingly incommensurable values. Here too, a majority of the Court agrees that it is possible to balance benefits and burdens under the approach set forth in Pike.

Justice KAVANAUGH, concurring in part and dissenting in part.

In today’s fractured decision, six Justices of this Court affirmatively retain the longstanding Pike balancing test for analyzing dormant Commerce Clause challenges to state economic regulations. Although Parts IV–B and IV–D of Justice GORSUCH’s opinion would essentially overrule the Pike balancing test, those subsections are not controlling precedent, as I understand it.

But Part IV–C of Justice GORSUCH’s opinion is controlling precedent for purposes of the Court’s judgment as to the plaintiffs’ Pike claim. There, a four-Justice plurality of the Court applies Pike and rejects the plaintiffs’ dormant Commerce Clause challenge. The plurality reasons that the plaintiffs’ complaint did not sufficiently allege that the California law at issue here imposed a substantial burden on interstate commerce. I respectfully disagree with that conclusion for the reasons well stated in THE CHIEF JUSTICE’s separate opinion.

I add this opinion to point out that state economic regulations like California’s Proposition 12 may raise questions not only under the Commerce Clause, but also under the Import-Export Clause, the Privileges and Immunities Clause, and the Full Faith and Credit Clause.

Notably, future state laws of this kind might not be confined to the pork industry. As the amici brief of 26 States points out, what if a state law prohibits the sale of fruit picked by noncitizens who are unlawfully in the country? What if a state law prohibits the sale of goods produced by workers paid less than $20 per hour? Or as those States suggest, what if a state law prohibits “the retail sale of goods from producers that do not pay for employees’ birth control or abortions” (or alternatively, that do pay for employees’ birth control or abortions)?

If upheld against all constitutional challenges, California’s novel and far-reaching regulation could provide a blueprint for other States. California’s law thus may foreshadow a new era where States shutter their markets to goods produced in a way that offends their moral or policy preferences—and in doing so, effectively force other States to regulate in accordance with those idiosyncratic state demands. That is not the Constitution the Framers adopted in Philadelphia in 1787.

Although the Court today rejects the plaintiffs’ dormant Commerce Clause challenge as insufficiently pled, state laws like Proposition 12 implicate not only the Commerce Clause, but also potentially several other constitutional provisions, including the Import-Export Clause, the Privileges and Immunities Clause, and the Full Faith and Credit Clause.

First, the Import-Export Clause prohibits any State, absent “the Consent of the Congress,” from imposing “any Imposts or Duties on Imports or Exports, except what may be absolutely necessary for executing” its “inspection Laws.” Art. I, § 10, cl. 2. This Court has limited that Clause to imports from foreign countries. As Justice Scalia and Justice THOMAS have explained, that limitation may be mistaken as a matter of constitutional text and history.

Second, the Privileges and Immunities Clause provides that the “Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.” Art. IV, § 2, cl. 1. Under this Court’s precedents, one State’s efforts to effectively regulate farming, manufacturing, or production in other States could raise significant questions under that Clause. Again, I express no view on whether such an argument ultimately would prevail. But the issue warrants further analysis in a future case.

Third, the Full Faith and Credit Clause requires each State to afford “Full Faith and Credit” to the “public Acts” of “every other State.” Art. IV, § 1. That Clause prevents States from “adopting any policy of hostility to the public Acts” of another State. A State’s effort to regulate farming, manufacturing, and production practices in another State (in a manner different from how that other State’s laws regulate those practices) could in some circumstances raise questions under that Clause.

Because the dormant Commerce Clause is about state interference with Congress's prerogative to regulate interstate commerce, the Court has held that Congress may consent power to regulate interstate commerce back to the States. That is, Congress may permit States to enact regulations that would otherwise impermissibly burden interstate commerce. We've already seen one example of this. In New York v. United States, the Court upheld provisions of the federal law addressing disposal of low level radioactive waste that would have imposed penalties on States that did not meet the statutory deadline for establishing their own waste sites, including allowing States that had disposal sites to impose discriminatory surcharges on noncompliant States or even to ban the importation of waste from noncompliant States. If a State adopted such a law on its own, it would be a blatant violation of the dormant Commerce Clause, but since Congress approved these regulations, there is no dormant Commerce Clause violation.

Justice WHITE announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I and II, and an opinion with respect to Parts III and IV, in which Justice BRENNAN, Justice BLACKMUN, and Justice STEVENS joined.

We granted certiorari in this case to review a decision of the Court of Appeals for the Ninth Circuit that held that Alaska's requirement that timber taken from state lands be processed within the State prior to export was “implicitly authorized” by Congress and therefore does not violate the Commerce Clause. We hold that it was not authorized and reverse the judgment of the Court of Appeals.

In September 1980, the Alaska Department of Natural Resources published a notice that it would sell approximately 49 million board-feet of timber in the area of Icy Cape, Alaska. The notice of sale, the prospectus, and the proposed contract for the sale all provided, pursuant to [Alaska law] that “[p]rimary manufacture within the State of Alaska will be required as a special provision of the contract.” Under the primary-manufacture requirement, the successful bidder must partially process the timber prior to shipping it outside of the State. The requirement is imposed by contract and does not limit the export of unprocessed timber not owned by the State. The stated purpose of the requirement is to “protect existing industries, provide for the establishment of new industries, derive revenue from all timber resources, and manage the State's forests on a sustained yield basis.” When it imposes the requirement, the State charges a significantly lower price for the timber than it otherwise would.

Petitioner, South–Central Timber Development, Inc., is an Alaska corporation engaged in the business of purchasing standing timber, logging the timber, and shipping the logs into foreign commerce, almost exclusively to Japan. It does not operate a mill in Alaska and customarily sells unprocessed logs. When it learned that the primary-manufacture requirement was to be imposed on the Icy Cape sale, it brought an action in Federal District Court seeking an injunction, arguing that the requirement violated the negative implications of the Commerce Clause.

[The Court first rejected Alaska's claim that the condition in their timber contracts was authorized by federal law, and therefore fell within the Congressional consent exception to the dormant Commerce Clause]

We now turn to the issues left unresolved by the Court of Appeals. The first of these issues is whether Alaska's restrictions on export of unprocessed timber from state-owned lands are exempt from Commerce Clause scrutiny under the “market-participant doctrine.”

Our cases make clear that if a State is acting as a market participant, rather than as a market regulator, the dormant Commerce Clause places no limitation on its activities. The precise contours of the market-participant doctrine have yet to be established, however, the doctrine having been applied in only three cases of this Court to date.

The first of the cases, Hughes v. Alexandria Scrap Corp., 426 U.S. 794 (1976), involved a Maryland program designed to reduce the number of junked automobiles in the State. A “bounty” was established on Maryland-licensed junk cars, and the State imposed more stringent documentation requirements on out-of-state scrap processors than on in-state ones. The Court rejected a Commerce Clause attack on the program, although it noted that under traditional Commerce Clause analysis the program might well be invalid because it had the effect of reducing the flow of goods in interstate commerce. The Court concluded that Maryland's action was not “the kind of action with which the Commerce Clause is concerned,” because “[n]othing in the purposes animating the Commerce Clause prohibits a State, in the absence of congressional action, from participating in the market and exercising the right to favor its own citizens over others.”

In Reeves, Inc. v. Stake, 447 U.S. 429 (1980), the Court upheld a South Dakota policy of restricting the sale of cement from a state-owned plant to state residents, declaring that “[t]he basic distinction drawn in Alexandria Scrap between States as market participants and States as market regulators makes good sense and sound law.” The Court relied upon “‘the long recognized right of trader or manufacturer, engaged in an entirely private business, freely to exercise his own independent discretion as to parties with whom he will deal.’” In essence, the Court recognized the principle that the Commerce Clause places no limitations on a State's refusal to deal with particular parties when it is participating in the interstate market in goods.

The most recent of this Court's cases developing the market-participant doctrine is White v. Massachusetts Council of Construction Employers, Inc., 460 U.S. 204 (1983), in which the Court sustained against a Commerce Clause challenge an executive order of the Mayor of Boston that required all construction projects funded in whole or in part by city funds or city-administered funds to be performed by a work force of at least 50% city residents. The Court rejected the argument that the city was not entitled to the protection of the doctrine because the order had the effect of regulating employment contracts between public contractors and their employees. Recognizing that “there are some limits on a state or local government's ability to impose restrictions that reach beyond the immediate parties with which the government transacts business,” the Court found it unnecessary to define those limits because “[e]veryone affected by the order [[[was], in a substantial if informal sense, ‘working for the city.’" The fact that the employees were “working for the city” was “crucial” to the market-participant analysis in White.

The State of Alaska contends that its primary-manufacture requirement fits squarely within the market-participant doctrine, arguing that “Alaska's entry into the market may be viewed as precisely the same type of subsidy to local interests that the Court found unobjectionable in Alexandria Scrap.” However, when Maryland became involved in the scrap market it was as a purchaser of scrap; Alaska, on the other hand, participates in the timber market, but imposes conditions downstream in the timber-processing market. Alaska is not merely subsidizing local timber processing in an amount “roughly equal to the difference between the price the timber would fetch in the absence of such a requirement and the amount the state actually receives.” If the State directly subsidized the timber-processing industry by such an amount, the purchaser would retain the option of taking advantage of the subsidy by processing timber in the State or forgoing the benefits of the subsidy and exporting unprocessed timber. Under the Alaska requirement, however, the choice is made for him: if he buys timber from the State he is not free to take the timber out of state prior to processing.

The State also would have us find Reeves controlling. It states that “Reeves made it clear that the Commerce Clause imposes no limitation on Alaska's power to choose the terms on which it will sell its timber.” Such an unrestrained reading of Reeves is unwarranted. Although the Court in Reeves did strongly endorse the right of a State to deal with whomever it chooses when it participates in the market, it did not—and did not purport to—sanction the imposition of any terms that the State might desire.

The limit of the market-participant doctrine must be that it allows a State to impose burdens on commerce within the market in which it is a participant, but allows it to go no further. The State may not impose conditions, whether by statute, regulation, or contract, that have a substantial regulatory effect outside of that particular market. Unless the “market” is relatively narrowly defined, the doctrine has the potential of swallowing up the rule that States may not impose substantial burdens on interstate commerce even if they act with the permissible state purpose of fostering local industry.

At the heart of the dispute in this case is disagreement over the definition of the market. Alaska contends that it is participating in the processed timber market, although it acknowledges that it participates in no way in the actual processing.

South–Central argues, on the other hand, that although the State may be a participant in the timber market, it is using its leverage in that market to exert a regulatory effect in the processing market, in which it is not a participant. We agree with the latter position.

There are sound reasons for distinguishing between a State's preferring its own residents in the initial disposition of goods when it is a market participant and a State's attachment of restrictions on dispositions subsequent to the goods coming to rest in private hands. First, simply as a matter of intuition a state market participant has a greater interest as a “private trader” in the immediate transaction than it has in what its purchaser does with the goods after the State no longer has an interest in them. Similarly, the antitrust laws place limits on vertical restraints. It is no defense in an action charging vertical trade restraints that the same end could be achieved through vertical integration; if it were, there would be virtually no antitrust scrutiny of vertical arrangements. We reject the contention that a State's action as a market regulator may be upheld against Commerce Clause challenge on the ground that the State could achieve the same end as a market participant. We therefore find it unimportant for present purposes that the State could support its processing industry by selling only to Alaska processors, by vertical integration, or by direct subsidy.

Second, downstream restrictions have a greater regulatory effect than do limitations on the immediate transaction. Instead of merely choosing its own trading partners, the State is attempting to govern the private, separate economic relationships of its trading partners; that is, it restricts the post-purchase activity of the purchaser, rather than merely the purchasing activity. In sum, the State may not avail itself of the market-participant doctrine to immunize its downstream regulation of the timber-processing market in which it is not a participant.

Justice REHNQUIST, with whom Justice O'CONNOR joins, dissenting.

In my view, the line of distinction drawn in the plurality opinion between the State as market participant and the State as market regulator is both artificial and unconvincing. The plurality draws this line “simply as a matter of intuition,” but then seeks to bolster its intuition through a series of remarks more appropriate to antitrust law than to the Commerce Clause. For example, the plurality complains that the State is using its “leverage” in the timber market to distort consumer choice in the timber-processing market, a classic example of a tying arrangement.

Perhaps the State's actions do raise antitrust problems. But what the plurality overlooks is that the antitrust laws apply to a State only when it is acting as a market participant. When the State acts as a market regulator, it is immune from antitrust scrutiny.

The contractual term at issue here no more transforms Alaska's sale of timber into “regulation” of the processing industry than the resident-hiring preference imposed by the city of Boston in White v. Massachusetts Council of Construction Employers, Inc., 460 U.S. 204 (1983), constituted regulation of the construction industry. Alaska is merely paying the buyer of the timber indirectly, by means of a reduced price, to hire Alaska residents to process the timber. Under existing precedent, the State could accomplish that same result in any number of ways. For example, the State could choose to sell its timber only to those companies that maintain active primary-processing plants in Alaska. Reeves, Inc. v. Stake, 447 U.S. 429 (1980). Or the State could directly subsidize the primary-processing industry within the State. Hughes v. Alexandria Scrap Corp., 426 U.S. 794 (1976). The State could even pay to have the logs processed and then enter the market only to sell processed logs. It seems to me unduly formalistic to conclude that the one path chosen by the State as best suited to promote its concerns is the path forbidden it by the Commerce Clause.

As the prior reading suggests, the Privileges and Immunities Clause prohibits states from discriminating against citizens of other states, but only with regard to "privileges and immunities."

The first category of privileges and immunities is fundamental rights. This refers generally to something we will study later in the course, and could involve both enumerated fundamental rights (e.g., free speech protected under the First Amendment) and unenumerated fundamental rights (e.g., the right of privacy). For example, in Doe v. Bolton, 410 U.S. 179 (1973), the Supreme Court invalidated a Georgia law that limited state hospitals' abortion services to Georgia citizens on the ground that Georgia was denying out of state citizens a fundamental right. While (as we will see) abortion is no longer considered to be a fundamental right, the principle of Doe v. Bolton is still good law.

Second, and more commonly, the Court has sometimes stated that fundamental rights includes the right to pursue a "common calling," which refers to the idea that the government may not tell people what jobs they must do; rather, people are free to pursue any job or profession that they wish. This has been applied in situations where States provide favoritism to their own citizens in certain aspects of economic life. Accordingly, privileges and immunities claims can sometimes, but not always, overlap with dormant Commerce Clause claims, which also involve burdens on interstate commerce.

In Toomer v. Witsell, 334 U.S. 385 (1948), for example, the Court struck down a South Carolina law that restricted commercial shrimp fishing licenses by requiring out of state residents to pay licensing fees one hundred times greater than the fees charged to state residents. The Court found this law violated the Privileges and Immunities Clause because it was "virtually exclusionary" (that is, tantamount to a ban on out of state residents getting licenses). The Court noted that "it was long ago decided that one of the privileges which the clause guarantees to citizens of State A is that of doing business in State B on terms of substantial equality with the citizens of that State."

However, in Baldwin v. Fish and Game Comm'n of Montana, 436 U.S. 371 (1978), the Court rejected a Privileges and Immunities Clause claim by an out of state resident who challenged Montana's elk-hunting license scheme, which charged non-residents about 7.5 times the licensing fee charged to its own residents and also imposed other additional burdens on out of state residents. The Court found that access to hunting was not a privilege or immunity, noting that "Elk hunting by nonresidents in Montana is a recreation and a sport. In itself—wholly apart from license fees—it is costly and obviously available only to the wealthy nonresident or to the one so taken with the sport that he sacrifices other values in order to indulge in it and to enjoy what it offers. It is not a means to the nonresident's livelihood."

* * *

Consider the following case, which articulates and applies the Court's test for determining when state discrimination against non-residents with regard to a privilege or immunity might be justified.

SUPREME COURT OF NEW HAMPSHIRE v. PIPER

470 U.S. 274 (1985)

Justice POWELL delivered the opinion of the Court.

The Rules of the Supreme Court of New Hampshire limit bar admission to state residents. We here consider whether this restriction violates the Privileges and Immunities Clause of the United States Constitution, Art. IV, § 2.

Kathryn Piper lives in Lower Waterford, Vermont, about 400 yards from the New Hampshire border. In 1979, she applied to take the February 1980 New Hampshire bar examination. Piper submitted with her application a statement of intent to become a New Hampshire resident. Following an investigation, the Board of Bar Examiners found that Piper was of good moral character and met the other requirements for admission. She was allowed to take, and passed, the examination. Piper was informed by the Board that she would have to establish a home address in New Hampshire prior to being sworn in. [Piper's attempts to get an exemption from the residency requirement were subsequently rejected]

Article IV, § 2, of the Constitution provides that the “Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.” This Clause was intended to “fuse into one Nation a collection of independent, sovereign States.” Recognizing this purpose, we have held that it is “[o]nly with respect to those ‘privileges' and ‘immunities' bearing on the vitality of the Nation as a single entity” that a State must accord residents and nonresidents equal treatment. 

Derived, like the Commerce Clause, from the fourth of the Articles of Confederation, the Privileges and Immunities Clause was intended to create a national economic union. It is therefore not surprising that this Court repeatedly has found that “one of the privileges which the Clause guarantees to citizens of State A is that of doing business in State B on terms of substantial equality with the citizens of that State.” Toomer v. Witsell, 334 U.S., at 396.

There is nothing in [our previous cases] suggesting that the practice of law should not be viewed as a “privilege” under Art. IV, § 2. Like the occupations considered in our earlier cases, the practice of law is important to the national economy.

The lawyer's role in the national economy is not the only reason that the opportunity to practice law should be considered a “fundamental right.” We believe that the legal profession has a noncommercial role and duty that reinforce the view that the practice of law falls within the ambit of the Privileges and Immunities Clause. Out-of-state lawyers may—and often do—represent persons who raise unpopular federal claims. In some cases, representation by nonresident counsel may be the only means available for the vindication of federal rights. The lawyer who champions unpopular causes surely is . . . important to the “maintenance or well-being of the Union.” 

The conclusion that Rule 42 deprives nonresidents of a protected privilege does not end our inquiry. The Court has stated that “[l]ike many other constitutional provisions, the privileges and immunities clause is not an absolute.” The Clause does not preclude discrimination against nonresidents where (i) there is a substantial reason for the difference in treatment; and (ii) the discrimination practiced against nonresidents bears a substantial relationship to the State's objective. In deciding whether the discrimination bears a close or substantial relationship to the State's objective, the Court has considered the availability of less restrictive means.

The Supreme Court of New Hampshire offers several justifications for its refusal to admit nonresidents to the bar. It asserts that nonresident members would be less likely (i) to become, and remain, familiar with local rules and procedures; (ii) to behave ethically; (iii) to be available for court proceedings; and (iv) to do pro bono and other volunteer work in the State. We find that none of these reasons meets the test of “substantiality,” and that the means chosen do not bear the necessary relationship to the State's objectives.

There is no evidence to support appellant's claim that nonresidents might be less likely to keep abreast of local rules and procedures. Nor may we assume that a nonresident lawyer—any more than a resident—would disserve his clients by failing to familiarize himself with the rules.

We also find the appellant's second justification to be without merit, for there is no reason to believe that a nonresident  lawyer will conduct his practice in a dishonest manner. The nonresident lawyer's professional duty and interest in his reputation should provide the same incentive to maintain high ethical standards as they do for resident lawyers. A lawyer will be concerned with his reputation in any community where he practices, regardless of where he may live. Furthermore, a nonresident lawyer may be disciplined for unethical conduct.

There is more merit to the appellant's assertion that a nonresident member of the bar at times would be unavailable for court proceedings. In the course of litigation, pretrial hearings on various matters often are held on short notice. At times a court will need to confer immediately with counsel. Even the most conscientious lawyer residing in a distant State may find himself unable to appear in court for an unscheduled hearing or proceeding. Nevertheless, we do not believe that this type of problem justifies the exclusion of nonresidents from the state bar. One may assume that a high percentage of nonresident lawyers willing to take the state bar examination and pay the annual dues will reside in places reasonably convenient to New Hampshire. Furthermore, in those cases where the nonresident counsel will be unavailable on short notice, the State can protect its interests through less restrictive means. The trial court, by rule or as an exercise of discretion, may require any lawyer who resides at a great distance to retain a local attorney who will be available for unscheduled meetings and hearings.

The final reason advanced by appellant is that nonresident members of the state bar would be disinclined to do their share of pro bono and volunteer work. Perhaps this is true to a limited extent, particularly where the member resides in a distant location. We think it is reasonable to believe, however, that most lawyers who become members of a state bar will endeavor to perform their share of these services. This sort of participation, of course, would serve the professional interest of a lawyer who practices in the State. Furthermore, a nonresident bar member, like the resident member, could be required to represent indigents and perhaps to participate in formal legal-aid work.

In summary, appellant neither advances a “substantial reason” for its discrimination against nonresident applicants to the bar, nor demonstrates that the discrimination practiced bears a close relationship to its proffered objectives.

We conclude that New Hampshire's bar residency requirement violates the Privileges and Immunities Clause of Art. IV, § 2, of the United States Constitution. The nonresident's interest in practicing law is a “privilege” protected by the Clause. Although the lawyer is “an officer of the court,” he does not hold a position that can be entrusted only to a “full-fledged member of the political community.” A State may discriminate against nonresidents only where its reasons are “substantial,” and the difference in treatment bears a close or substantial relation to those reasons. No such showing has been made in this case.