No Place for Morality: The Emerging Threat to Interstate Commerce and the Extraterritoriality Principle
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Authors
Kittelberger, Jessica
Barsa, Michael R.
Issue Date
2024-07
Volume
53
Issue
3
Type
Journal Article
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Abstract
The Extraterritoriality Principle of the Dormant Commerce Clause demarcates the boundaries of a state’s police power and invalidates laws with impermissible extraterritorial effects. But in today’s interconnected economy, application of the principle has become a jurisprudential quagmire. In particular, the recent Supreme Court case of National Pork Producers Council v. Ross highlights the danger of upholding state regulation grounded in morality—in that case animal welfare—as hot-button issues, like abortion, lurk in the shadows.
This Paper offers doctrinal clarity and addresses the novel question of morality’s place within extraterritoriality two-fold: (1) identifying overlooked consequences of a principle permitting states to use morality as a justification to restrict commerce, and (2) offering a framework to screen-out morality and restore balance to the principle. This Article proposes a two-step test, first restricting state regulation to the methods of production tied directly to the good itself. The second screen prohibits states from banning a good or restricting an aspect of its production process based principally on moral objections, the (in) adequacy of which judges are not able to adequately analyze—if at all. Under this test, states retain their police power to regulate their in-state marketplace, within reason and without fomenting moral balkanization.
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Publisher
Creighton University School of Law