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2 The Ninth Circuit misapplied our existing Pike jurisprudence in evaluating petitioners’ allegations. I would find that petitioners’petitioners [sic] 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.

The Ninth Circuit stated that “[w]hile the dormant Commerce Clause is not yet a dead letter, it is moving in that direction.” 6 F. 4th 1021, 1033 (2021). Today’s majority does not pull the plug. For good reason: 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.” General Motors Corp. v. Tracy, 519 U. S. 278, 287 (1997) (quoting Reeves, Inc. v. Stake, 447 U. S. 429, 437 (1980)); see also Hunt v. Washington State Apple Advertising Comm’n, 432 U. S. 333, 350 (1977) (Pike protects “a national ‘common market’ ”). “Our system, fostered by the Commerce Clause, is that every farmer and every craftsman shall be encouraged to produce by the certainty that he will have free access to every market in the Nation, that no home embargoes will withhold his exports, and no foreign state will by customs duties or regulations exclude them.” H. P. Hood & Sons, Inc. v. Du Mond, 336 U. S. 525, 539 (1949).

The majority’s discussion of our Pike jurisprudence highlights two types of cases: those involving discriminatory state laws and those implicating the “instrumentalities of interstate transportation.”,. But Pike has not been so narrowly typecast. 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