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26 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.” 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, §§§ [sic]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.” Why is that so? ’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. 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. (opinion of