The Battle For Bacon: State AI Laws and Dormant Commerce Clause after National Pork Producers v. Ross

I. Introduction
In 2018, California voters approved Proposition 12, also known as the Farm Animal Confinement Initiative, which outlawed the production and sale of whole meat from breeding pigs, chickens used for their eggs, and calves used for veal if the products came from livestock that were cruelly confined. [1] The law only regulates sales in the state of California; however, since California imports the vast majority of its pork from other states, the compliance costs fall on out-of-state farms. [2] In National Pork Producers v. Ross (2023), the petitioners, the National Pork Producers Council and the American Farm Bureau Federation, argued that Proposition 12 significantly burdened both in-state and out-of-state commerce, and by the nature of its “practical effect,” controlled commercial activity outside the state, and limited particular economic state laws under the power premises of the dormant Commerce Clause. [3] The Court argued that discrimination was the main element in the dormant Commerce Clause and that states cannot regulate to help in-state businesses by straining businesses out-of-state, but can prohibit sales that they deem are immoral. This is with the assumption that they treat all states equally and, as the petitioners argue, Proposition 12 did not discriminate. [4] In May 2023, the Court affirmed the Ninth Circuit’s holding in a 5-4 decision, deciding that a state can bar the in-state sale of product according to how it was made out of that state, provided that the law does not discriminate against out-of-state businesses. Additionally, Proposition 12 did not violate the dormant Commerce Clause, as it did not discriminate or place enough burden on interstate commerce to the extent that it exceeded California’s interest in protecting the welfare of animals. [5]

National Pork Producers Council v. Ross became a precedent that made it difficult for courts to invalidate state AI laws under the dormant Commerce Clause. The case’s implication for future AI regulation works against supporters of the growth of AI technology, but as AI continues to advance, many states have constrained its unlimited potential.

II. History, Interpretation, and the Trajectory of the Dormant Commerce Clause
The dormant Commerce Clause, deduced from Article I, Section 8 of the Constitution's Commerce Clause, is an implied doctrine that places constraints on states so they cannot pass laws that discriminate or place substantial burden on interstate commerce. [6] The Court has, throughout history, interpreted this doctrine to strike down state law even without federal legislation. [7] Article I, Section 8 explicitly grants Congress power to regulate interstate commerce but does not stop a state’s ability to regulate its own commerce in a way that might affect interstate commerce. [8] Under the Articles of Confederation, the federal government had no power or authority to tax or regulate the economy between states, and as a product of states setting up trade barriers, the Framers’ concern inspired a practical solution for congressional power and oversight. [9] However, the Court has adopted its own “dormant Commerce Clause jurisprudence” to set limits on various state regulations, with the basis of aligning its own jurisprudence with the intentions of the Framers.’ [10] In Gibbons v. Ogden (1824), a case pertaining to state regulations of navigation, Justice Marshall also argued that state inspection and health laws were valid as they influence out-of-state commerce. However, he proposed that interpretations of the Commerce Clause could implicitly prohibit states from passing certain legislation. [11] A medium was later clarified in Cooley v. Board of Wardens (1852): that states can pass local regulations until Congress acts or if the subject “demands a single national rule,” where the Court acknowledged heavy room for state regulatory legislation, but even so, various limits still are in effect without Congress. [12]

This implication constrains the balance of federalism between states, Congress, and the Court, similar to many economic protectionist cases that claim that laws are nondiscriminatory. In these cases, the Court has acknowledged states’ independence to regulate their own commercial activity, but critics say the doctrine allows the Court, and not Congress, to have the power to decide whether these specific state laws prevail. [13] The Court has relied on the dormant Commerce Clause doctrine to defend against commercial and economic protectionism, as they have feared what the Articles of Confederation allowed, in what they called “economic balkanization.” [14] In Baldwin v. G.A.F. Seelig, Inc. (1935), which took place during the Great Depression, New York dairy farm businesses went bankrupt due to collapsing milk prices. To combat this, the Milk Control Act of 1933 was passed in New York to set minimum prices for dealers to pay farmers, most of whom imported milk from outside of New York. [15] However, this plan worked almost like a tariff, as the Act was implemented to shield New York from out-of-state competition by leveling milk costs for New York with out-of-state producers to sustain profit for New York producers. The Court claimed the Act was unconstitutional, with Justice Cardozo voicing that states “must sink or swim together” was the premise the Constitution was built on. [16] While the petitioners in National Pork Producers referenced this case as relevant to the extraterritoriality doctrine of having the state’s law’s “practical effect controlling Commerce outside the State,” the Court argued the case was not about protectionism, but rather about discrimination in proving that many state laws have out-of-state effects in a connected market, and Proposition 12 did not discriminate against other states’ commerce. [17] In addition to other lower court cases, the Court has at least understood the bounds of the extraterritoriality doctrine as part of the dormant Commerce Clause when distinguishing between protectionist and discriminatory cases, but ultimately, expressed that this broad doctrine could threaten many different tort, environmental, and ordinary state laws. 

III. State AI Laws
AI has been one of the most popularly talked about issues in modern society, with its bounds for potential assumed to be limitless. [18] AI continues to advance as society fears the trajectory of AI takeover and states’ ability to limit or hinder that trajectory. States have made their own regulations due to an absence of AI regulations at the federal level. Under Pike v. Bruce Church, Inc. (1970), a case about protecting Arizona-grown cantaloupe farmers, the Court stated that a state law, albeit nondiscriminatory, is subject to being shut down if the “burden imposed on such commerce is clearly excessive in relation to the putative local benefits.” [19] In turn, striking down state law that forced compliance in Arizona where the commercial activity could have been efficiently produced outside the state, as the Arizona farmer had wished. [20] National Pork Producers Council v. Ross produced a challenge to this idea, as four justices concurred that a petitioner must prove beyond a doubt higher compliance costs for out-of-state commercial activity, and that the activity placed substantial burden on interstate commerce. [21] Both cases created interpretations that serve as both tools and obstacles for AI regulation challenges, while states implement AI laws on non-economic grounds to protect public safety and interest and also avoid discrimination, aligning with Proposition 12’s goals. Nonetheless, Pike v. Bruce Church, Inc. presented that the Court can still effectively weigh the burdens against the benefits, implying an important balancing standard for nondiscriminatory cases. [22] With the result of National Pork Producers Council v. Ross, AI differs from the sale and production of pork, as pork can be separately sold to California, while on the other hand, it is unrealistic for developers to create a national AI platform to separately launch different models to different states. AI undoubtedly affects the interstate market, which challenges these state regulations, forcing the companies and developers of AI to prove a burden on interstate commerce that outweighs the state’s interests to protect the public space. 

IV. Conclusion
National Pork Producers Council v. Ross has directed the interpretation of the dormant Commerce Clause to expand the fight for state AI law passage and survival. The Court rejected the petitioners’ extraterritorial claim that state legislation is unconstitutional simply if its effects control out-of-state commerce, but clarified that discrimination is the substance of the dormant Commerce Clause. [23] Since many state AI laws apply to both in-state and out-of-state business, the Court cannot rely on discrimination to strike down the legislation; rather, the Court may apply the same balancing practices displayed in Pike to weigh the benefits and costs of interstate commerce. 

[1] National Pork Producers Council v. Ross, 598 U.S. 356 (2023). 

[2] Ibid.

[3] Ibid.

[4] Id. at 369.

[5] Id. at 356.

[6] Wex Definitions Team, “Dormant Commerce Clause,” Legal Information Institute, Cornell Law School, last reviewed June 2026. https://www.law.cornell.edu/wex/dormant_commerce_clause. 

[7] “ArtI.S8.C3.7.2 Historical Background on Dormant Commerce Clause,” The Constitution Annotated, LIBR. OF CONG. https://constitution.congress.gov/browse/essay/artI-S8-C3-7-2/ALDE_00013308/ 

[8] U.S. CONST. art. I, § 8, cl. 3. 

[9] Supra, note 7. 

[10] Ibid. 

[11] Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1, 203, 208 (1824). 

[12] Cooley v. Board of Wardens, 53 U.S. (12 How.) 299, 317, 320, 321 (1852). 

[13] Martin H. Redish & Shane V. Nugent, “The Dormant Commerce Clause and the Constitutional Balance of Federalism,” 1987 DUKE L.J. (1987), at 569, 578. https://scholarship.law.duke.edu/dlj/vol36/iss4/1

[14] Supra, note 7. 

[15] Baldwin v. G.A.F. Seelig, Inc., 294 U.S. 511 (1935).

[16] Id. at 523. 

[17] National Pork Producers Council v. Ross, 598 U.S. 356, 371 (2023).

[18] How Americans View AI and Its Impact on People and Society,” Pew Research Center, Sept. 17, 2025. https://www.pewresearch.org/science/2025/09/17/how-americans-view-ai-and-its-impact-on-people-and-society/.

[19] Pike v. Bruce Church, Inc., 397 U.S. 137, 142 (1970). 

[20] Ibid. 

[21] Supra note 17. 

[22] Id. at 391–93. 

[23] Id. at 356, 369, 371.