Michael McConnell’s version of federalism

National Pork Producers Council v. Ross Could be one of the most consequential cases of the term, and I don’t just mean the cost of pork chops. A few states, most notably California, have such large markets that—unless the Supreme Court intervened—they could, at little cost to themselves, impose their ideas of proper standards of production on other states in the Union. Because nationwide producers often cannot divide their markets, producers will be forced to follow California’s rules for the entire country, or face the disastrous consequences of exclusion from the California market.

Add to that the fact that these large states—California, Texas, New York—are also one-party states, whose views on social policy are often at one extreme or the other. More moderate Americans in other states would be restricted by law, not voting if they had the chance. It is against the democratic principles of our federal system.

This is from Eugene Volokh, “Professor Michael McConnell (Stanford) on Latent Commerce Clauses,” Volokh conspiracyOctober 11, 2022.

Professor McConnell is, as Eugene Volokh points out, “one of the top constitutional law scholars in the country.” This one, though, surprises me. My disagreement has nothing to do with whether the law in question is good; I think it’s bad and I voted against it. But sometimes federalism allows bad laws.

Reading this short, I was reminded of the wonderful title James Buchanan chose (I guess he chose it) for his critique of Richard Posner’s first edition. Economic Analysis of Law. Title: “Good Economics-Bad Law.”

Except in this case I’m not sure it’s good economics; More on that anon.

the law

But now to the law. If it’s true that California’s law “forces” (McConnell’s words) producers in other states to “follow California’s rules for the entire country,” then he would have a point. But nothing in the law compels them to do so. I use the word “forced” literally; McConnell apparently does not. Producers from other states cannot produce in the 49 states plus DC and sell to California consumers. He calls it a “crippling consequence”, but is it really? McConnell notes that Californians “consume 13 percent of all pork produced in the United States.” Is eliminating 13 percent of a large market really crippling? I don’t see it.

The essence of federalism is that the voters and politicians of different states can decide about the regulations and laws of that state. There are some limitations, of course, that the US Constitution imposes. But McConnell failed to explain why the U.S. Constitution prohibits California voters from voting to allow only certain products to be sold in the state. It is not that the California government is discriminating against out-of-state producers; This same rule applies to all pork sold in California.

McConnell makes a perhaps better legal argument. “California regulators will travel to farms inspecting land in other states to enforce the law,” he wrote. If that were true, he would be right: it would be a state restriction on interstate commerce. It’s hard to see, though, how that would be true. Can’t every hog farmer outside of California legally say, “Get the hell off my land.”

Note that McConnell tries to bolster his argument by correctly pointing out that California is a one-party state with many people holding “one extreme or the other.” I don’t know, I’ve been living in this weird state continuously since 1984. Isn’t one of the main points in favor of federalism that it allows diversity of policy?

the economy

Now on to McConnell’s economics, which I think is questionable on two counts.

First, the mindset. “Once California gets the green light to use its monopoly power to pressure businesses across the country to comply with California’s social preferences, there will be no end in sight,” McConnell wrote. But does control of 13 percent of a market constitute a monopoly? I think that is a reach.

Second, on who pays the cost. McConnell wrote, “A few states, most notably California, have such large markets that—if the Supreme Court did not intervene—they could, at little cost to themselves, impose their idea of ​​the proper standard of production upon every other state in the Union. ” Elsewhere McConnell argues that this legislation will significantly increase the price of pork. I guess he’s right. So, how, exactly, will we Californians bear the small cost?

Note to commenters:

I find, when I comment on legal matters, people, especially lawyers, tell me to stick to economics. But this is not an argument. Notice that I didn’t say that McConnell shouldn’t make economic arguments. Rather, I challenged his arguments, showing how weak they were. There’s a reasonable chance I’m wrong on the constitutional issues here. If so, say why.

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