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SUPREME COURT OF THE UNITED STATES
No. 21–468
NATIONAL PORK PRODUCERS COUNCIL, ET AL., PETITIONERS v. KAREN ROSS, IN HER OFFICIAL CAPACITY AS SECRETARY OF THE CALIFORNIA DEPARTMENT OF FOOD & AGRICULTURE, ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
[May 11, 2023]
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.
What goods belong in our stores? Usually, consumer demand and local laws supply some of the answer. Recently, California adopted just such 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. Often, consumers may choose among eggs that are large, medium, or small; eggs that are white, brown, or some other color; eggs from cage-free chickens or ones raised consistent with organic farming standards. When it comes to meat and fish, the options are no less plentiful. 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. USDA, Report to Congress: Livestock Mandatory Reporting 18 (2018), https://www.ams.usda.gov/sites/default/files/media/LMR2018ReporttoCongress.pdf. 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.” Body of Liberties §92, in A Bibliographical Sketch of the Laws of the Massachusetts Colony 52–53 (1890). 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.” Mass. Gen. Laws Ann., ch. 129, App. §§1–3, 1–5 (Cum. Supp. 2023). 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. See Ariz. Rev. Stat. Ann. §13–2910.07(A) (2018); Me. Rev. Stat. Ann., Tit. 7, §§4020(1)–(2) (2018); Mich. Comp. Laws §287.746(2) (West Cum. Supp. 2022); Ore. Rev. Stat. §§600.150(1)–(2) (2021); R. I. Gen. Laws §4–1.1–3 (Supp. 2022).
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. App. to Pet. for Cert. 37a–46a. 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.” Cal. Health & Safety Code Ann. §25990(b)(2) (West Cum. Supp. 2023). 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.” §25991(e)(1). Since Proposition 12’s adoption, the State has begun developing “proposed regulations” that would permit compliance “certification[s]” to be issued “by non-governmental third parties, many used for myriad programs (e.g., ‘organic’) already.” Brief for Intervenor Respondents 30, n. 8.
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. M. Scully, A Brief for the Pigs: The Case of National Pork Producers Council v. Ross, National Review, July 11, 2022, https://www.nationalreview.com/2022/07/a-brief-for-the-pigs-the-case-of-national-pork-producers-council-v-ross/. 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. Ibid. Proponents hoped that Proposition 12 would go a long way toward eliminating pork sourced in this manner “from the California marketplace.” A. Padilla, Cal. Secretary of State, California General Election—Official Voter Information Guide 70 (Nov. 6, 2018) (Voter Guide), https://vig.cdn.sos.ca.gov/2018/general/pdf/complete-vig.pdf. 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.” Ibid.; see App. to Pet. for Cert. 201a–202a.
Opponents pressed their case in strong terms too. They 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. Id., at 185a–187a; see also Voter Guide 70–71. They also warned voters that Proposition 12 would require some farmers and processors to incur new costs. Id., at 69. Ones that might be “passed through” to California consumers. Ibid.
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. App. to Pet. for Cert. 154a–155a. Petitioners alleged that Proposition 12 violates the U. S. Constitution by impermissibly burdening interstate commerce. Id., at 230a–232a.
In support of that legal claim, petitioners pleaded a number of facts. They acknowledged that, in response to consumer demand and the laws of other States, 28% of their industry has already converted to some form of group housing for pregnant pigs. Id., at 186a. But, petitioners cautioned, even some farmers who already raise group-housed pigs will have to modify their practices if they wish to comply with Proposition 12. Id., at 208a–209a. Much of pork production today is vertically integrated, too, with farmers selling pigs to large processing firms that turn them into different “cuts of meat” and distribute the “different parts … all over to completely different end users.” Id., at 334a–335a. Revising this system to segregate and trace Proposition 12-compliant pork, petitioners alleged, will require certain processing firms to make substantial new capital investments. Id., at 205a–206a. Ultimately, petitioners estimated that “compliance with Proposition 12 will increase production costs” by “9.2% … at the farm level.” Id., at 214a. These compliance costs will fall on California and out-of-state producers alike. Ibid. 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. Ibid.
After considerable motions practice, the district court held that petitioners’ complaint failed to state a claim as a matter of law and dismissed the case. 456 F. Supp. 3d 1201 (SD Cal. 2020). With Judge Ikuta writing for a unanimous panel, the Ninth Circuit affirmed. 6 F. 4th 1021 (2021). Following that ruling, petitioners sought certiorari and we agreed to consider the complaint’s legal sufficiency for ourselves. 596 U. S. ___ (2022).
II
The Constitution vests Congress with the power to “regulate Commerce … among the several States.” Art. I, §8, cl. 3. Everyone agrees that Congress may seek to exercise this power to regulate the interstate trade of pork, much as it has done with various other products. Everyone agrees, too, that congressional enactments may preempt conflicting state laws. See Art. VI, cl. 2. But everyone also agrees that we have nothing like that here. 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. See, e.g., H. R. 272, 116th Cong., 1st Sess., §2 (2019); H. R. 4879, 115th Cong., 2d Sess., §2(a) (2018); H. R. 3599, 115th Cong., 1st Sess., §2(a) (2017); H. R. 687, 114th Cong., 1st Sess., §2(a) (2015).
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.” Oklahoma Tax Comm’n v. Jefferson Lines, Inc., 514 U. S. 175, 179 (1995).
This view of the Commerce Clause developed gradually. In Gibbons v. Ogden, Chief Justice Marshall recognized that the States’ constitutionally reserved powers enable them to regulate commerce in their own jurisdictions in ways sure to have “a remote and considerable influence on commerce” in other States. 9 Wheat. 1, 203 (1824). By way of example, he cited “[i]nspection laws, quarantine laws, [and] health laws of every description.” Ibid. At the same time, however, Chief Justice Marshall saw “great force in th[e] argument” that the Commerce Clause might impliedly bar certain types of state economic regulation. Id., at 209. Decades later, in Cooley v. Board of Wardens of Port of Philadelphia ex rel. Soc. for Relief of Distressed Pilots, this Court again recognized that the power vested in Congress to regulate interstate commerce leaves the States substantial leeway to adopt their own commercial codes. 12 How. 299, 317–321 (1852). But once more, the Court hinted that the Constitution may come with some restrictions on what “may be regulated by the States” even “in the absence of all congressional legislation.” Id., at 320.
Eventually, the Court cashed out these warnings, holding that state laws offend the Commerce Clause when they seek to “build up … domestic commerce” through “burdens upon the industry and business of other States,” regardless of whether Congress has spoken. Guy v. Baltimore, 100 U. S. 434, 443 (1880). At the same time, though, the Court reiterated that, absent discrimination, “a State may exclude from its territory, or prohibit the sale therein of any articles which, in its judgment, fairly exercised, are prejudicial to” the interests of its citizens. Ibid.
Today, this antidiscrimination principle lies at the “very core” of our dormant Commerce Clause jurisprudence. Camps Newfound/Owatonna, Inc. v. Town of Harrison, 520 U. S. 564, 581 (1997). 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.’ ” Department of Revenue of Ky. v. Davis, 553 U. S. 328, 337–338 (2008) (quoting New Energy Co. of Ind. v. Limbach, 486 U. S. 269, 273–274 (1988)); see also Tennessee Wine and Spirits Retailers Assn. v. Thomas, 588 U. S. ___, ___ (2019) (slip op., at 9) (observing that this Court’s cases operate principally to “safeguard against state protectionism”); Northwest Airlines, Inc. v. County of Kent, 510 U. S. 355, 373, n. 18 (1994) (describing “a violation of the dormant Commerce Clause” as “discrimination against interstate commerce”).
Admittedly, some “Members of the Court have authored vigorous and thoughtful critiques of this interpretation” of the Commerce Clause. Tennessee Wine, 588 U. S., at ___ (slip op., at 7) (citing cases). They have not necessarily quarreled with the antidiscrimination principle. But they have suggested that it may be more appropriately housed elsewhere in the Constitution. Perhaps in the Import–Export Clause, which prohibits States from “lay[ing] any Imposts or Duties on Imports or Exports” without permission from Congress. Art. I, §10, cl. 2; see Camps Newfound/Owatonna, 520 U. S., at 621–637 (Thomas, J., dissenting). Perhaps in the Privileges and Immunities Clause, which entitles “[t]he Citizens of each State” to “all Privileges and Immunities of Citizens in the several States.” Art. IV, §2; see Tyler Pipe Industries, Inc. v. Washington State Dept. of Revenue, 483 U. S. 232, 265 (1987) (Scalia, J., concurring in part and dissenting in part). Or perhaps the principle inheres in the very structure of the Constitution, which “was framed upon the theory that the peoples of the several [S]tates must sink or swim together.” American Trucking Assns., Inc. v. Michigan Pub. Serv. Comm’n, 545 U. S. 429, 433 (2005) (internal quotation marks omitted).
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.” Brief for Petitioners 2, n. 2.
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.” Id., at 19. 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. Ibid. 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.
A
This argument falters out of the gate. Put aside what problems may attend the minor (factual) premise of this argument. Focus just on the major (legal) premise. Petitioners say the “almost per se” rule they propose follows ineluctably from three cases—Healy v. Beer Institute, 491 U. S. 324 (1989); Brown-Forman Distillers Corp. v. New York State Liquor Authority, 476 U. S. 573 (1986); and Baldwin v. G. A. F. Seelig, Inc., 294 U. S. 511 (1935). A close look at those cases, however, reveals nothing like the rule petitioners posit. Instead, each typifies the familiar concern with preventing purposeful discrimination against out-of-state economic interests.
Start with Baldwin. There, this Court refused to enforce New York laws that barred out-of-state dairy farmers from selling their milk in the State “unless the price paid to” them matched the minimum price New York law guaranteed in-state producers. Id., at 519. In that way, the challenged laws deliberately robbed out-of-state dairy farmers of the opportunity to charge lower prices in New York thanks to whatever “natural competitive advantage” they might have enjoyed over in-state dairy farmers—for example, lower cost structures, more productive farming practices, or “lusher pasturage.” D. Regan, The Supreme Court and State Protectionism: Making Sense of the Dormant Commerce Clause, 84 Mich. L. Rev. 1091, 1248 (1986). The problem with New York’s laws was thus a simple one: They “plainly discriminate[d]” against out-of-staters by “erecting an economic barrier protecting a major local industry against competition from without the State.” Dean Milk Co. v. Madison, 340 U. S. 349, 354 (1951) (discussing Baldwin). Really, the laws operated like “a tariff or customs duty.” West Lynn Creamery, Inc. v. Healy, 512 U. S. 186, 194 (1994); see Baldwin, 294 U. S., at 523 (condemning the challenged laws for seeking to “protec[t]” New York dairy farmers “against competition from without”).
Brown-Forman and Healy differed from Baldwin only in that they involved price-affirmation, rather than price-fixing, statutes. In Brown-Forman, New York required liquor distillers to affirm (on a monthly basis) that their in-state prices were no higher than their out-of-state prices. 476 U. S., at 576. Once more, the goal was plain: New York sought to force out-of-state distillers to “surrender” whatever cost advantages they enjoyed against their in-state rivals. Id., at 580. Once more, the law amounted to “simple economic protectionism.” Ibid. (internal quotation marks omitted).
In Healy, a Connecticut law required out-of-state beer merchants to affirm that their in-state prices were no higher than those they charged in neighboring States. 491 U. S., at 328–330. Here, too, protectionism took center stage. As the Court later noted, “[t]he essential vice in laws” like Connecticut’s is that they “hoard” commerce “for the benefit of” in-state merchants and discourage consumers from crossing state lines to make their purchases from nearby out-of-state vendors. C & A Carbone, Inc. v. Clarkstown, 511 U. S. 383, 391–392 (1994). Nor did the law in Healy even try to cloak its discriminatory purpose: “By its plain terms, the Connecticut affirmation statute applie[d] solely to interstate” firms, and in that way “clearly discriminate[d] against interstate commerce.” 491 U. S., at 340–341. The Court also worried that, if the Connecticut law stood, “each of the border States” could “enac[t] statutes essentially identical to Connecticut’s” in retaliation—a result often associated with avowedly protectionist economic policies. Id., at 339–340.
B
Petitioners insist that our reading of these cases misses the forest for the trees. On their account, Baldwin, Brown-Forman, and Healy didn’t just find an impermissible discriminatory purpose in the challenged laws; they also suggested an “almost per se” rule against state laws with “extraterritorial effects.” Brief for Petitioners 19, 23. In Healy, petitioners stress, the Court included language criticizing New York’s laws for having the “ ‘practical effect’ ” of “control[ling] commerce ‘occurring wholly outside the boundaries of [the] State.’ ” Brief for Petitioners 21, 25 (quoting 491 U. S., at 336). In Brown-Forman, petitioners observe, the Court suggested that whether a state law “ ‘is addressed only to [in-state] sales is irrelevant if the “practical effect” of the law is to control’ ” out-of-state prices. Brief for Petitioners 21 (quoting 476 U. S., at 583). Petitioners point to similar language in Baldwin as well. Brief for Petitioners 37 (quoting 294 U. S., at 523–524).
In our view, however, petitioners read too much into too little. “[T]he language of an opinion is not always to be parsed as though we were dealing with language of a statute.” Reiter v. Sonotone Corp., 442 U. S. 330, 341 (1979). Instead, we emphasize, our opinions dispose of discrete cases and controversies and they must be read with a careful eye to context. See Cohens v. Virginia, 6 Wheat. 264, 399–400 (1821) (Marshall, C. J.). And when it comes to Baldwin, Brown-Forman, and Healy, the language petitioners highlight appeared in a particular context and did particular work. Throughout, the Court explained that the challenged statutes had a specific impermissible “extraterritorial effect”—they deliberately “prevent[ed out-of-state firms] from undertaking competitive pricing” or “deprive[d] businesses and consumers in other States of ‘whatever competitive advantages they may possess.’ ” Healy, 491 U. S., at 338–339 (quoting Brown-Forman, 476 U. S., at 580).
In recognizing this much, we say nothing new. This Court has already described “[t]he rule that was applied in Baldwin and Healy” as addressing “price control or price affirmation statutes” that tied “the price of … in-state products to out-of-state prices.” Pharmaceutical Research and Mfrs. of America v. Walsh, 538 U. S. 644, 669 (2003) (internal quotation marks omitted). Many lower courts have read these decisions in exactly the same way. See, e.g., 6 F. 4th, at 1028–1029; Association for Accessible Medicines v. Frosh, 887 F. 3d 664, 669 (CA4 2018); Energy and Environment Legal Inst. v. Epel, 793 F. 3d 1169, 1174 (CA10 2015); American Beverage Assn. v. Snyder, 735 F. 3d 362, 373 (CA6 2013).
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. See, e.g., Banner v. United States, 428 F. 3d 303, 310 (CADC 2005) (per curiam). Environmental laws often prove decisive when businesses choose where to manufacture their goods. See American Beverage Assn., 735 F. 3d, at 379 (Sutton, J., concurring). Add to the extraterritorial-effects list all manner of “libel laws, securities requirements, charitable registration requirements, franchise laws, tort laws,” and plenty else besides. J. Goldsmith & A. Sykes, The Internet and the Dormant Commerce Clause, 110 Yale L. J. 785, 804 (2001). 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. Gibbons, 9 Wheat., at 203; see also Cooley, 12 How., at 317–321. 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. Can anyone really suppose Baldwin, Brown-Forman, and Healy meant to do so much?
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,” Hoyt v. Sprague, 103 U. S. 613, 630 (1881), a feature of our constitutional order that allows “different communities” to live “with different local standards,” Sable Communications of Cal., Inc. v. FCC, 492 U. S. 115, 126 (1989). But, by way of example, no one should think that one State may adopt a law exempting securities held by the residents of a second State from taxation in that second State. Bonaparte v. Tax Court, 104 U. S. 592, 592–594 (1882). Nor, we have held, should anyone think one State may prosecute the citizen of another State for acts committed “outside [the first State’s] jurisdiction” that are not “intended to produce [or that do not] produc[e] detrimental effects within it.” Strassheim v. Daily, 221 U. S. 280, 285 (1911).
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. BMW of North America, Inc. v. Gore, 517 U. S. 559, 572 (1996). 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.” Phillips Petroleum Co. v. Shutts, 472 U. S. 797, 818 (1985). 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. This Court has never before claimed so much “ground for judicial supremacy under the banner of the dormant Commerce Clause.” United Haulers Assn., Inc. v. Oneida-Herkimer Solid Waste Management Authority, 550 U. S. 330, 347 (2007). We see no reason to change course now.[1]
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.’ ” Brief for Petitioners 44. 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. General Motors Corp. v. Tracy, 519 U. S. 278, 298, n. 12 (1997). 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.” Ibid. 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. 397 U. S., at 138–140. The Court held that Arizona’s order violated the dormant Commerce Clause. Id., at 146. 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.” Id., at 145. 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. Id., at 140, 145.
Other cases in the Pike line underscore the same message. In Minnesota v. Clover Leaf Creamery Co., 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.” 449 U. S. 456, 473 (1981); see also id., at 474–477, and n. 2 (Powell, J., concurring in part and dissenting in part) (asking whether the “actual purpose,” if not the “ ‘avowed purpose,’ ” of the law was discrimination). Similarly, in Exxon Corp. v. Governor of 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. 437 U. S. 117, 127 (1978). And in United Haulers, a plurality upheld the challenged law because it could not “detect” any discrimination in favor of in-state businesses or against out-of-state competitors. 550 U. S., at 346. In each of these cases and many more, the presence or absence of discrimination in practice proved decisive.
Once again, we say nothing new here. Some time ago, Tracy identified the congruity between our core dormant Commerce Clause precedents and the Pike line. 519 U. S., at 298, n. 12. Many lower courts have done the same. See, e.g., Rosenblatt v. Santa Monica, 940 F. 3d 439, 452 (CA9 2019); Park Pet Shop, Inc. v. Chicago, 872 F. 3d 495, 501 (CA7 2017); Amanda Acquisition Corp. v. Universal Foods Corp., 877 F. 2d 496, 505 (CA7 1989). So have many scholars. See, e.g., R. Fallon, The Dynamic Constitution 311 (2d ed. 2013) (observing that Pike serves to “ ‘smoke out’ a hidden” protectionism); B. Friedman & D. Deacon, A Course Unbroken: The Constitutional Legitimacy of the Dormant Commerce Clause, 97 Va. L. Rev. 1877, 1927 (2011); Regan, 84 Mich. L. Rev., at 1286.
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,” Davis, 553 U. S., at 353, and while “a small number of our cases have invalidated state laws … that appear to have been genuinely nondiscriminatory,” Tracy, 519 U. S., at 298, n. 12,[2] petitioners’ claim falls well outside Pike’s heartland. That is not an auspicious start.
B
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, see n. 2, supra, petitioners would have us retool Pike for a much more ambitious project. They 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 free-wheeling 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.” United Haulers, 550 U. S., at 343. While “[t]here was a time when this Court presumed to make such binding judgments for society, under the guise of interpreting the Due Process Clause,” we have long refused pleas like petitioners’ “to reclaim that ground” in the name of the dormant Commerce Clause. Id., at 347.
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. Davis, 553 U. S., at 353.
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. See App. to Pet. for Cert. 192a (alleging in their complaint that “Proposition 12’s requirements were driven by [a] conception of what qualifies as ‛cruel’ animal housing” and by the State’s concern for the “ ‘health and safety of California consumers’ ”). 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.” Bendix Autolite Corp. v. Midwesco Enterprises, Inc., 486 U. S. 888, 897 (1988) (Scalia, J., concurring in judgment).
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). See Tr. of Oral Arg. 51 (“[A] state is perfectly entitled to enforce its morals in state”); see also Western Union Telegraph Co. v. James, 162 U. S. 650, 653 (1896) (holding that States may enact laws to “promote … public morals”). 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. Reply Brief 13. And, again, no one disputes that some who voted for Proposition 12 may have done so with just that sort of goal in mind. See, e.g., USDA Proposed Rule To Amend Organic Livestock and Poultry Production Requirements, 87 Fed. Reg. 48565 (2022) (affording animals more space “may result in healthier livestock products for human consumption”).
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, Moorman Mfg. Co. v. Bair, 437 U. S. 267, 279 (1978), and “try novel social and economic experiments” if they wish, New State Ice Co. v. Liebmann, 285 U. S. 262, 311 (1932) (Brandeis, J., dissenting). Judges cannot displace the cost-benefit analyses embodied in democratically adopted legislation guided by nothing more than their own faith in “Mr. Herbert Spencer’s Social Statics,” Lochner v. New York, 198 U. S. 45, 75 (1905) (Holmes, J., dissenting)—or, for that matter, Mr. Wilson Pond’s Pork Production Systems, see W. Pond, J. Maner, & D. Harris, Pork Production Systems: Efficient Use of Swine and Feed Resources (1991).
If, as petitioners insist, California’s law really does threaten a “massive” disruption of the pork industry, see Brief for Petitioners 2, 4, 19—if pig husbandry really does “ ‘imperatively demand’ ” a single uniform nationwide rule, id., at 27—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. See Part I, supra (citing failed efforts). 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
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. Brief for Petitioners 44. And, tellingly, the complaint before us fails to clear even that bar.
To appreciate petitioners’ problem, compare our case to Exxon. That case involved a Maryland law prohibiting petroleum producers from operating retail gas stations in the State. 437 U. S., at 119–121, and n. 1. Because Maryland had no in-state petroleum producers, Exxon argued, the law’s “divestiture requirements” fell “solely on interstate companies” and threatened to force some to “withdraw entirely from the Maryland market” or incur new costs to serve that market. Id., at 125–127. All this, the company said, amounted to a violation of the dormant Commerce Clause.
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). Ibid. The law also promised to increase retail gas prices for Maryland consumers, allowing some to question its “wisdom.” Id., at 124, 128. 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.” Id., at 125. 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. Id., at 125–126. 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). Id., at 125, 127. This Court squarely rejected the view that this predicted “ ‘change [in] the market structure’ ” would “impermissibly burde[n] interstate commerce.” Id., at 127. 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.” Id., at 127–128.
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. See App. to Pet. for Cert. 205a. In Exxon, as far as anyone could tell, the law threatened only to shift market share from one set of out-of-state firms to another. Here, the pleadings allow for the same possibility—that 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). In both cases, some may question the “wisdom” of a law that threatens to disrupt the existing practices of some industry participants and may lead to higher consumer prices. 437 U. S., at 128. But the dormant Commerce Clause does not protect a “particular structure or metho[d] of operation.” Id., at 127. That goes for pigs no less than gas stations.
Think of it another way. Petitioners must plead facts “plausibly” suggesting a substantial harm to interstate commerce; facts that render that outcome a “speculative” possibility are not enough. Bell Atlantic Corp. v. Twombly, 550 U. S. 544, 555, 557 (2007). In an effort to meet this standard, petitioners allege facts suggesting that certain out-of-state farmers and processing firms will find it difficult to comply with Proposition 12 and may choose not to do so. See App. to Pet. for Cert. 198a, 208a, 313a. But the complaint also acknowledges that many producers have already converted to some form of group housing, even if they have not all yet met Proposition 12’s standards. Id., at 186a. From these facts, the complaint plausibly alleges that some out-of-state firms may face difficulty complying (or may choose not to comply) with Proposition 12. But from all anyone can tell, other out-of-state competitors seeking to enhance their own profits may choose to modify their existing operations or create new ones to fill the void.[3]
Of course, as the complaint alleges, a shift from one set of production methods to another promises some costs. Id., at 214a. But the complaint concedes that complying producers will be able to “pas[s] along” at least “some” of their increased costs to consumers. Id., at 178a. 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. See United Haulers, 550 U. S., at 345 (holding that the dormant Commerce Clause is not offended by higher prices “likely to fall upon the very people who voted for the [challenged] la[w]”). 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). Instead, at least one declaration incorporated by reference into the complaint avers that some out-of-state consumers will “not value these changes and will not pay an increased price.” App. to Pet. for Cert. 335a; see also Brief for Agricultural and Resource Economics Professors as Amici Curiae 15, 23 (suggesting negligible effect on out-of-state prices for consumers not interested in Proposition 12-compliant pork). Further experience may yield further facts. But the facts pleaded in this complaint merely allege harm to some producers’ favored “methods of operation.” Exxon, 437 U. S., at 127. A substantial harm to interstate commerce remains nothing more than a speculative possibility. Ibid.
D
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. Post, at 1. And correctly, it disapproves reading Pike to endorse a “freewheeling judicial weighing of benefits and burdens.” Post, at 2. 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. Post, at 4–9. 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. See Cavel Int’l, Inc. v. Madigan, 500 F. 3d 551, 552–555 (CA7 2007). 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.” Post, at 9. The same would go for all manner of consumer products currently banned by some States but not by others—goods ranging from fireworks, see, e.g., Mass. Gen. Laws Ann., ch. 148, §39 (2020), to single-use plastic grocery bags, see, e.g., Me. Rev. Stat. Ann., Tit. 38, §§1611(2)(A), (4) (2022). 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. In the process, it would essentially replicate under Pike’s banner petitioners’ “almost per se” rule against state laws with extraterritorial effects.
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.” Post, at 7–10. 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. Post, at 4–5. 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. So much for the Constitution’s “fundamental principle of equal sovereignty among the States.” Shelby County v. Holder, 570 U. S. 529, 544 (2013) (internal quotation marks omitted).
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. Post, at 5–6 (opinion of Roberts, C. J.). 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.” Post, at 6–9; see also post, at 3–5 (opinion of Kavanaugh, J.). 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. Nor could they have proceeded otherwise. Our decisions have authorized claims alleging “burdens on commerce.” Davis, 553 U. S., at 353. They do not provide judges “a roving license” to reassess the wisdom of state legislation in light of any conceivable out-of-state interest, economic or otherwise. United Haulers, 550 U. S., at 343.[4]
V
Before the Constitution’s passage, Rhode Island imposed special taxes on imported “New-England Rum”; Connecticut levied duties on goods “brought into th[e] State, by Land or Water, from any of the United States of America”; and Virginia taxed “vessels coming within th[e S]tate from any of the United States.” An Act Laying Certain Duties of Excise Upon Certain Articles, Feb. 24, 1783 R. I. Acts and Resolves 45; An Act for Levying and Collecting a Duty on Certain Articles of Goods, Wares and Merchandize Imported into this State, by Land or Water, 1784 Conn. Acts and Laws 271; An Act to Amend the Act for Ascertaining Certain Taxes and Duties, and for Establishing a Permanent Revenue (May 6, 1782), in 11 Statues at Large, Laws of Virginia 70 (W. Hening ed. 1823).
Whether moved by this experience or merely worried that more States might join the bandwagon, the Framers equipped Congress with considerable power to regulate interstate commerce and preempt contrary state laws. See U. S. Const., Art. I, §8, cl. 3; Art. IV, §2; see also Regan, 84 Mich. L. Rev., at 1114, n. 55; A. Abel, The Commerce Clause in the Constitutional Convention and in Contemporary Comment, 25 Minn. L. Rev. 432, 448–449 (1941). In the years since, this Court has inferred an additional judicially enforceable rule against certain, especially discriminatory, state laws adopted even against the backdrop of congressional silence. But “ ‘extreme caution’ ” is warranted before a court deploys this implied authority. Tracy, 519 U. S., at 310 (quoting Northwest Airlines, Inc. v. Minnesota, 322 U. S. 292, 302 (1944) (Black, J., concurring)). Preventing state officials from enforcing a democratically adopted state law in the name of the dormant Commerce Clause is a matter of “extreme delicacy,” something courts should do only “where the infraction is clear.” Conway v. Taylor’s Executor, 1 Black 603, 634 (1862).
Petitioners would have us cast aside caution for boldness. They have failed—repeatedly—to persuade Congress to use its express Commerce Clause authority to adopt a uniform rule for pork production. And they disavow any reliance on this Court’s core dormant Commerce Clause teachings focused on discriminatory state legislation. Instead, petitioners invite us to endorse two new theories of implied judicial power. They would have us recognize an “almost per se” rule against the enforcement of state laws that have “extraterritorial effects”—even though this Court has recognized since Gibbons that virtually all state laws create ripple effects beyond their borders. Alternatively, they would have us prevent a State from regulating the sale of an ordinary consumer good within its own borders on nondiscriminatory terms—even though the Pike line of cases they invoke has never before yielded such a result. Like the courts that faced this case before us, we decline both of petitioners’ incautious invitations.
The judgment of the Ninth Circuit is
- ↑ Beyond Baldwin, Brown-Forman, and Healy, petitioners point to Edgar v. MITE Corp., 457 U. S. 624 (1982), as authority for the “almost per se” rule they propose. Invoking the dormant Commerce Clause, a plurality in that case declined to enforce an Illinois securities law that “directly regulate[d] transactions which [took] place … wholly outside the State” and involved individuals “having no connection with Illinois.” Id., at 641–643 (emphasis added). Some have questioned whether the state law at issue in Edgar posed a dormant Commerce Clause question as much as one testing the territorial limits of state authority under the Constitution’s horizontal separation of powers. See, e.g., D. Regan, Siamese Essays: (I) CTS Corp. v. Dynamics Corp. of America and Dormant Commerce Clause Doctrine; (II) Extraterritorial State Legislation, 85 Mich. L. Rev. 1865, 1875–1880, 1897–1902 (1987); cf. Shelby County v. Holder, 570 U. S. 529, 535 (2013) (“[A]ll States enjoy equal sovereignty”). But either way, the Edgar plurality opinion does not support the rule petitioners propose. That decision spoke to a law that directly regulated out-of-state transactions by those with no connection to the State. Petitioners do not allege those conditions exist here. To the contrary, they acknowledge that Proposition 12 regulates only products that companies choose to sell “within” California. Cal. Health & Safety Code Ann. §25990(b).
- ↑ Most notably, Tracy referred to, and petitioners briefly allude to, a line of cases that originated before Pike in which this Court refused to enforce certain state regulations on instrumentalities of interstate transportation—trucks, trains, and the like. See, e.g., Bibb v. Navajo Freight Lines, Inc., 359 U. S. 520, 523–530 (1959) (concerning a state law specifying certain mud flaps for trucks and trailers); Southern Pacific Co. v. Arizona ex rel. Sullivan, 325 U. S. 761, 763–782 (1945) (addressing a state law regarding the length of trains). Petitioners claim these cases support something like the extraterritoriality or balancing rules they propose. But at least some decisions in this line might be viewed as condemning state laws that “although neutral on their face … were enacted at the instance of, and primarily benefit,” in-state interests. Raymond Motor Transp., Inc. v. Rice, 434 U. S. 429, 447 (1978); see also B. Friedman & D. Deacon, A Course Unbroken: The Constitutional Legitimacy of the Dormant Commerce Clause, 97 Va. L. Rev. 1877, 1927 (2011). In any event, this Court “has only rarely held that the Commerce Clause itself pre-empts an entire field from state regulation, and then only when a lack of national uniformity would impede the flow of interstate goods.” Exxon Corp. v. Governor of Maryland, 437 U. S. 117, 128 (1978) (emphasis added). Nothing like that exists here. We do not face a law that impedes the flow of commerce. Pigs are not trucks or trains.
- ↑ Though it is unnecessary to adorn the point, we note that a number of smaller out-of-state pork producers have filed an amicus brief in this Court hailing the “opportunities” Proposition 12 affords them to compete with vertically integrated firms with “ ‘concentrated market power’ ” that are wedded to their existing processing practices. Brief for Small and Independent Farming Businesses et al. as Amici Curiae 1, 12, 19–20. Other amici have noted that even some large vertically integrated processing firms have already begun to modify (or else have indicated their intention to modify) their operations to comply with Proposition 12. See Brief for Perdue Premium Meat Co., Inc., as Amicus Curiae 3–7; see also Brief for Economic Research Organizations as Amici Curiae 16–17 (reciting public statements from Hormel, Smithfield, and Tyson). Another large processing firm, Cargill, has boasted that, “ ‘[b]efore we sold our pork business in 2015, we led the industry in removing gestation stalls to house pregnant sows.’ ” Id., at 16. Petitioner National Pork Producers Council lists Cargill as an “allied industry compan[y].” National Pork Producers Council, Pork Alliance Program, https://nppc.org/get-involved/join-the-pork-alliance/.
- ↑ Both dissents seek to characterize today’s decision as “fractured” in an effort to advance their own overbroad readings of Pike and layer their own gloss on opinions they do not join. Post, at 1, 8 (opinion of Kavanaugh, J.); see also post at 2–4, 8–10 (opinion of Roberts, C. J.). But the dissents are just that—dissents. Their glosses do not speak for the Court. Today, the Court unanimously disavows petitioners’ “almost per se” rule against laws with extraterritorial effects. See Parts II and III, supra. When it comes to Pike, a majority agrees that heartland Pike cases seek to smoke out purposeful discrimination in state laws (as illuminated by those laws’ practical effects) or seek to protect the instrumentalities of interstate transportation. See Part IV–A, supra. A majority also rejects any effort to expand Pike’s domain to cover cases like this one, some of us for reasons found in Part IV–B, others of us for reasons discussed in Part IV–C. Today’s decision depends equally on the analysis found in both of these sections; without either, there is no explaining the Court’s judgment affirming the decision below. A majority also subscribes to what follows in Part V.