Bibb Balancing: Regulatory Mismatches Under the Dormant Commerce Clause

University of Pennsylvania Carey Law School University of Pennsylvania Carey Law School

Penn Carey Law: Legal Scholarship Repository Penn Carey Law: Legal Scholarship Repository

All Faculty Scholarship Faculty Works

3-16-2023

Bibb Balancing: Regulatory Mismatches Under the Dormant Bibb Balancing: Regulatory Mismatches Under the Dormant

Commerce Clause Commerce Clause

Michael S. Knoll

University of Pennsylvania Carey Law School

Follow this and additional works at: https://scholarship.law.upenn.edu/faculty_scholarship

Part of the Antitrust and Trade Regulation Commons, and the Supreme Court of the United States

Commons

Repository Citation Repository Citation

Knoll, Michael S., "Bibb Balancing: Regulatory Mismatches Under the Dormant Commerce Clause" (2023).

All Faculty Scholarship

. 2932.

https://scholarship.law.upenn.edu/faculty_scholarship/2932

This Article is brought to you for free and open access by the Faculty Works at Penn Carey Law: Legal Scholarship

Repository. It has been accepted for inclusion in All Faculty Scholarship by an authorized administrator of Penn

Carey Law: Legal Scholarship Repository. For more information, please contact biddlerepos@law.upenn.edu.

\\jciprod01\productn\G\GWN\91-1\GWN101.txt unknown Seq: 1 24-FEB-23 14:13

Bibb Balancing: Regulatory Mismatches

Under the Dormant

Commerce Clause

Michael S. Knoll & Ruth Mason*

BSTRACT

Courts and commentators have long understood dormant Commerce

Clause doctrine to contain two types of cases: discrimination and undue bur-

dens. This Article argues for a further distinction that divides cases into single-

state burdens, which arise from the application of a single state’s law alone,

and mismatch burdens, which arise from legal diversity. Although the Su-

preme Court purports to apply Pike balancing in all undue-burden cases, we

show that the Court’s approach in mismatch cases differs substantially. Specif-

ically, unlike in single-state cases, balancing in mismatch cases involves an

implicit and potentially problematic comparison by the Court between the

challenged state’s regulation and those of other states. We label this analysis

“Bibb balancing,” after the famous mudflaps case, and we show that mis-

match cases present the Court with a more challenging set of issues than do

other types of dormant Commerce Clause cases. Despite the criticisms that

attach to Bibb balancing, failing to restrain regulatory mismatches would

threaten the smooth functioning of the national marketplace and undercut im-

portant federalism values. Thus, in addition to clarifying the doctrine and ac-

knowledging the drawbacks of Bibb balancing, this Article provides advice

for achieving more consistent and defensible results in mismatch cases.

* Michael S. Knoll is the Theodore K. Warner Professor of Law, University of Penn-

sylvania Carey Law School; Professor of Real Estate, The Wharton School; and Co-Director,

Center for Tax Law and Policy, University of Pennsylvania. Ruth Mason is the Edwin S. Cohen

Distinguished Professor of Law and Taxation and Director of the Virginia Center for Tax Law at

University of Virginia School of Law. We are grateful to our wonderful research assistants, who

helped with this project over the years: Maxwell Ain, Lawrence Barker, Charlie Beller, Xixi

Chen, James Collins, Tristan Deering, Emily Horowitz, Harvey Lou, Nicholas Roberti, Jarett

Rovner, Hunter Shaw, Bolton Smith, Dillon Tan, Ian Tomesch, and Francisco Torres. We are

also grateful to librarians Kristin Glover and Paul Riermaier. We received valuable commentary

from Brannon Denning, David Elkins, Victor Fleischer, Jens Frankenreiter, Brian Galle, David

Gamage, Ari Glogower, Risa Goluboff, Thomas Haley, David Hasen, John Harrison, Andrew

Hayashi, Deborah Hellman, Daniel Hemel, Hayes Holderness, Bradley Joondeph, Kurt Lash,

Julia Mahoney, Orly Mazur, Susan Morse, Daniel Ortiz, Miranda Perry Fleischer, Saikrishna

Prakash, Mildred Robinson, Emily Satterthwaite, Lawrence Solum, Paul Stephan, Adam Thim-

mesch, Pierre-Hugues Verdier, Clint Wallace, and workshop participants at NYU, Richmond

University, the University of California at Irvine, the University of Florida, and the University of

Virginia.

February 2023 Vol. 91 No. 1

\\jciprod01\productn\G\GWN\91-1\GWN101.txt unknown Seq: 2 24-FEB-23 14:13

2 THE GEORGE WASHINGTON LAW REVIEW [Vol. 91:1

ABLE OF

ONTENTS

NTRODUCTION

................................................. 3

I. T

ORMANT

OMMERCE

LAUSE AND

RITICS

............................................. 10

A. The Dormant Commerce Clause .................... 10

B. Criticisms of Dormant Commerce

Clause Doctrine ..................................... 14

II. R

EFRAMING

ORMANT

OMMERCE

LAUSE

...... 15

A. Defining Types of Burdens.......................... 17

1. Symmetrical Versus Asymmetrical Burdens ..... 17

2. Single-State Versus Mismatch Burdens ......... 17

B. Single-State Burdens and Pike Balancing ............ 20

1. Facially Discriminatory Regulations ............ 20

2. Facially Neutral Regulations .................... 21

a. Pike v. Bruce Church (1970)................ 22

b. H. P. Hood & Sons, Inc. v.

Du Mond (1949) ............................ 23

c. Dean Milk Co. v. City of

Madison (1951) ............................. 24

d. Bendix Autolite Corp. v. Midwesco

Enterprises, Inc. (1988) ..................... 25

e. C & A Carbone, Inc. v. Town of

Clarkstown (1994) .......................... 26

f. Lloyd A. Fry Roofing Co. v.

Wood (1952) ................................ 27

3. Understanding Single-State Cases .............. 27

C. Mismatch Burdens and Bibb Balancing ............. 29

1. Cases ........................................... 29

a. Intentionally Protectionist Mismatches....... 29

i. Florida Lime & Avocado Growers, Inc.

v. Paul (1963)........................... 30

ii. Hunt v. Washington State Apple

Advertising Commission (1977) ......... 31

b. Nonprotectionist, or Arguably

Nonprotectionist, Mismatches ............... 33

i. Nonintervention ........................ 34

1. State Highway Department v.

Barnwell Bros., Inc. (1938)......... 34

2. Moorman Manufacturing Co. v.

Bair (1978) ......................... 35

ii. Intervention ............................ 37

\\jciprod01\productn\G\GWN\91-1\GWN101.txt unknown Seq: 3 24-FEB-23 14:13

2023] BIBB BALANCING 3

1. Southern Pacific v.

Arizona (1945) ..................... 38

2. Bibb v. Navajo Freight

Lines (1959)........................ 39

3. Kassel v. Consolidated Freightways

Corp. of Delaware (1981) .......... 40

4. Minnesota v. Clover Leaf Creamery

Co. (1981).......................... 41

2. Understanding Mismatch Cases ................. 43

III. T

PECIAL

ROBLEMS OF

IBB

ALANCING

.......... 44

A. Judicial Intervention or Nonintervention ............ 45

1. Relative Consensus in Single-State Cases ....... 45

2. Unsettled Approach to Mismatch Cases ........ 46

a. Noninterventionist View ..................... 46

b. Interventionist View ......................... 49

3. Comparing Intervention in Single-State and

Mismatch Cases................................. 51

B. Benchmarking ...................................... 54

1. Single-State Cases .............................. 55

2. Mismatch Cases................................. 55

3. Comparing Benchmarking in Single-State and

Mismatch Cases................................. 57

C. Judicial Legislation ................................. 59

D. Complexity of Balancing ............................ 62

IV. T

UTURE OF

ISMATCH

ASES UNDER THE

ORMANT

OMMERCE

LAUSE

......................... 64

A. A Current Example: Cage-Free Eggs ................ 65

B. Reforming Bibb Balancing .......................... 67

C. Alternatives to Bibb Balancing ...................... 68

1. Mutual Recognition and Harmonization ........ 68

2. Requiring “National Treatment” for

“Like Products” ................................ 72

3. Focusing Exclusively on Legislative Intent ...... 74

ONCLUSION

................................................... 76

NTRODUCTION

Every law student learns that the dormant Commerce Clause has

two major doctrinal strands—discrimination and undue burden. The

doctrinal test for the latter involves balancing the burden a state im-

poses on interstate commerce against the state’s legitimate interest in

the challenged regulation. This balancing test has become synony-

\\jciprod01\productn\G\GWN\91-1\GWN101.txt unknown Seq: 4 24-FEB-23 14:13

4 THE GEORGE WASHINGTON LAW REVIEW [Vol. 91:1

mous with Pike v. Bruce Church, Inc.,

although it is actually much

older.

For decades, commentators and jurists have condemned Pike

balancing. Justice Scalia likened it to “judging whether a particular

line is longer than a particular rock is heavy.”

He also declared bal-

ancing a “quagmire”

that was “ill suited to the judicial function.”

Justice Rehnquist complained that balancing “gives no guidance what-

soever to . . . [s]tates as to whether their laws are valid or how to

defend them.”

Those criticisms find expression in today’s Supreme Court. For

example, Justice Thomas concluded that, because Pike balancing turns

“solely on policy considerations,” it involves legislative, not judicial,

decision-making.

Lower courts have likewise remarked that such bal-

ancing is subjective and challenging to apply.

Heaping scorn upon

Pike balancing, commentators have called it “fundamentally wrong,”

397 U.S. 137 (1970).

See Brannon P. Denning, Reconstructing the Dormant Commerce Clause Doctrine, 50

. & M

ARY

L. R

. 417, 445–46 (2008) [hereinafter Denning, Reconstructing] (describing

Southern Pacific Co. v. Ariz. ex rel. Sullivan, 325 U.S. 761 (1945), as “the paradigmatic balancing

opinion”). Id. at 445 n.150 (tracing balancing back to Baldwin v. G. A. F. Seelig, Inc., 294 U.S.

511 (1935)).

Bendix Autolite Corp. v. Midwesco Enters., Inc., 486 U.S. 888, 897 (1988) (Scalia, J.,

concurring).

W. Lynn Creamery, Inc. v. Healy, 512 U.S. 186, 210 (1994) (Scalia, J., concurring)

(“[O]nce one gets beyond facial discrimination our negative-Commerce-Clause jurisprudence

becomes (and long has been) a quagmire.”).

CTS Corp. v. Dynamics Corp. of Am., 481 U.S. 69, 95 (1987) (Scalia, J., concurring in

part).

Kassel v. Consol. Freightways Corp., 450 U.S. 662, 706 (1981) (Rehnquist, J., dissent-

ing). Id. at 706 (calling the doctrine “hopelessly confused”).

United Haulers Ass’n, Inc. v. Oneida-Herkimer Solid Waste Mgmt. Auth., 550 U.S. 330,

349 (2007) (Thomas, J., concurring in the judgment); see also Camps Newfound/Owatonna, Inc.

v. Town of Harrison, 520 U.S. 564, 619 (1997) (Thomas, J., dissenting) (suggesting that such

balancing “surely invites us, if not compels us, to function more as legislators than as judges”);

id. at 610 (concluding that the doctrine “makes little sense, and has proved virtually unworkable

in application”). In Department of Revenue of Kentucky v. Davis, 553 U.S. 328, 354 (2008), a

majority of the Court questioned whether courts are capable of such balancing.

Colon Health Ctrs. of Am., LLC v. Hazel, 813 F.3d 145, 155 (4th Cir. 2016) (“highly

subjective”); Am. Beverage Ass’n v. Snyder, 735 F.3d 362, 379 (6th Cir. 2013) (Sutton, J., concur-

ring) (“ineffable test”); Nat’l Ass’n of Optometrists & Opticians v. Harris, 682 F.3d 1144, 1149

(9th Cir. 2012) (balancing has “not turned out to be easy to apply”); Wiesmueller v. Kosobucki,

571 F.3d 699, 704 (7th Cir. 2009) (“The judiciary lacks the time and the knowledge to be able to

strike a fine balance between the burden that a particular state regulation lays on interstate

commerce and the benefit of that regulation to the state’s legitimate interests.”); Pharm. Rsch. &

Mfrs. of Am. v. Concannon, 249 F.3d 66, 84 (1st Cir. 2001) (finding the “balancing test more

challenging to apply”).

Julian N. Eule, Laying the Dormant Commerce Clause to Rest, 91 Y

ALE

L.J. 425, 436

(1982). (“[T]he likelihood of judicial invalidation increases with the degree of burden imposed

\\jciprod01\productn\G\GWN\91-1\GWN101.txt unknown Seq: 5 24-FEB-23 14:13

2023] BIBB BALANCING 5

a “historical vestige[],”

plagued by “severe conceptual problems,”

incoherent and inconsistent,

“seriously flawed,”

“illegitimate,”

“reviled,”

and “a disaster.”

Whereas a solid majority of the current Supreme Court supports

the discrimination strand of the dormant Commerce Clause,

it is not

clear where the Court stands on undue burdens.

Although the Su-

by state law . . . . There is something fundamentally wrong with a judicial framework that

prompts judicial intervention by the same trigger that induces political response.”).

Id. at 435.

Earl M. Maltz, How Much Regulation Is Too Much—An Examination of Commerce

Clause Jurisprudence, 50 G

. W

ASH

. L. R

. 47, 59 (1981).

Denning, Reconstructing, supra note 2, at 417. R

Jack L. Goldsmith & Alan O. Sykes, The Internet and the Dormant Commerce Clause,

110 Y

ALE

L.J. 785, 813 (2001).

Martin H. Redish & Shane V. Nugent, The Dormant Commerce Clause and the Consti-

tutional Balance of Federalism, 1987 D

UKE

L.J. 569, 599 (1987).

Brannon P. Denning, Justice Thomas, The Import-Export Clause, and Camps New-

found/Owatonna v. Harrison, 70 U. C

OLO

. L. R

. 155, 156–57 (1999) [hereinafter Denning,

Justice Thomas] (“Almost universally reviled by academics and Justices on the Supreme Court as

without solid foundation in text or intent, and altogether lacking a coherent application, it never-

theless endures and continues to be employed by the Court, when its members are not busy

criticizing it.” (citations omitted)).

Richard B. Collins, Economic Union as a Constitutional Value, 63 N.Y.U. L. R

. 43, 45

n.14 (1988) (quoting D

AVID

P. C

URRIE

, T

ONSTITUTION IN THE

UPREME

OURT

: T

IRST

UNDRED

EARS

1789-1888, at 342 (1985)); id. at 44 n.14 (skeptically noting arguments against

the dormant Commerce Clause made by David Currie). For other leading critical accounts, see

generally, Mark Tushnet, Rethinking the Dormant Commerce Clause, 1979 W

. L. R

. 125

(1979); Saul Levmore, Interstate Exploitation and Judicial Intervention, 69 V

. L. R

. 563

(1983); Donald H. Regan, The Supreme Court and State Protectionism: Making Sense of the

Dormant Commerce Clause, 84 M

ICH

. L. R

. 1091 (1986); Michael E. Smith, State Discrimina-

tions Against Interstate Commerce, 74 C

. L. R

. 1203 (1986); Paul E. McGreal, The Flawed

Economics of the Dormant Commerce Clause, 39 W

. & M

ARY

L. R

. 1191 (1998); Barry

Cushman, Formalism and Realism in Commerce Clause Jurisprudence, 67 U. C

. L. R

. 1089

(2000).

See infra note 51. R

The paucity of undue-burden decisions makes it difficult to discern the views of the

sitting Justices, which are discussed here in order of seniority, after describing the views of the

Chief Justice. Chief Justice Roberts did not join the part of United Haulers that applied Pike. See

United Haulers Ass’n v. Oneida-Herkimer Solid Waste Mgmt. Auth., 550 U.S. 330, 334 (2007).

At the same time, however, the part of the decision he authored and signed involved balancing

under the dormant Commerce Clause. See id. at 342 (weighing the state’s nonprotectionist inter-

est in the challenged ordinance that required waste to be disposed only at a public facility).

Justice Thomas’s opposition to all aspects of the dormant Commerce Clause is well-known and

unlikely to change. See, e.g., Comptroller of the Treasury of Md. v. Wynne, 575 U.S. 542, 578

(2015) (Thomas, J., dissenting). Justice Alito would adhere to dormant Commerce Clause prece-

dent. See Dep’t of Revenue of Ky. v. Davis, 553 U.S. 328, 376 (2008) (Alito, J., dissenting)

(“[T]he Court’s established dormant Commerce Clause precedents should be followed . . . .”).

Justice Alito joined Justice Kennedy’s dissent in Davis that argued that “[t]he undue burden

rule . . . remains an essential safeguard against restrictive laws that might otherwise be in force

for decades until Congress can act.” Id. at 365, 376 (Kennedy, J., dissenting). In 2018, the major-

\\jciprod01\productn\G\GWN\91-1\GWN101.txt unknown Seq: 6 24-FEB-23 14:13

6 THE GEORGE WASHINGTON LAW REVIEW [Vol. 91:1

preme Court referenced Pike favorably in 2018,

it has not invali-

dated a state statute under Pike for “a generation,”

and Justice

Thomas has even called for the termination of undue-burden

analysis.

At a time when important undue-burden cases are pending,

clarify the dormant Commerce Clause and Pike balancing. We also

provide principled methods to cabin judicial discretion in undue-bur-

den cases as an alternative to abandoning this vital constitutional doc-

trine. This Article thus constitutes a rare defense of a doctrinal area

that has been excoriated as both illegitimate and unclear, including by

members of the Court itself.

Courts and commentators divide dormant Commerce Clause doc-

trine into facial discrimination cases and undue-burden cases. Laws

ity in South Dakota v. Wayfair cited Pike as the applicable standard in dormant Commerce

Clause cases. See South Dakota v. Wayfair, Inc., 138 S. Ct. 2080, 2091 (2018). Although Justices

Sotomayor and Kagan joined Chief Justice Roberts’ dissent in Wayfair, that dissent was

grounded on the view that the Court should have hewed to precedent in Wayfair and not over-

turned a prior case. The dissenters therefore did not address Pike or the standard in undue-

burdens cases at all. See id. at 2101–05 (Roberts, C.J., dissenting); see also Edward A. Zelinsky,

Comparing Wayfair and Wynne: Lessons for the Future of the Dormant Commerce Clause, 22

HAP

. L. R

. 55, 58 (2019) (arguing that despite dissenting in Wayfair, none of Roberts,

Breyer, Sotomayor, or Kagan “dispute[d] the fundamental legitimacy of the dormant Commerce

Clause”). That all three of Roberts, Sotomayor, and Kagan joined the 2019 majority decision in

Tennessee Wine to preclude a facially discriminatory state regulation for violating the dormant

Commerce Clause confirms Professor Zelinsky’s claim that those Justices continue to respect the

fundamental legitimacy of the dormant Commerce Clause, but it does not indicate those Justices’

views on the undue-burden doctrine specifically, as opposed to the nondiscrimination doctrine.

See Tenn. Wine & Spirits Retailers Ass’n v. Thomas, 139 S. Ct. 2449, 2456 (2019). Justice Gor-

such concurred in Wayfair, but he emphasized that his “agreement with the Court’s discussion of

the history of our dormant commerce clause jurisprudence . . . should not be mistaken for agree-

ment with all aspects of the doctrine.” Wayfair, 138 S. Ct. at 2100 (Gorsuch, J., concurring). At

the time this Article went to press, the views of Justices Kavanaugh, Barrett, and Jackson on

Pike were unknown.

The majority in Wayfair cited Pike as the applicable standard in undue-burden cases.

Wayfair, 138 S. Ct. at 2091. Justice Kennedy wrote the majority opinion, which Justices Thomas,

Ginsburg, Alito, and Gorsuch joined. Id. at 2087. Perhaps reflecting a perception of the obsoles-

cence of Pike, of the forty-seven amicus and party briefs filed in Wayfair, only five, including our

amicus, discussed Pike. See Brief of Brill, Knoll, Mason & Viard in Support of Petitioner at 3,

17–20, South Dakota v. Wayfair, Inc., 138 S. Ct. 2080 (2018) (No. 17-494).

ORIS

I. B

ITTKER

RANNON

P. D

ENNING

, B

ITTKER ON THE

EGULATION OF

NTER-

STATE AND

OREIGN

OMMERCE

§ 6.05 (Aspen Publishers 2022) (2d ed. 2013) (citing Edgar v.

MITE Corp., 457 U.S. 624 (1982) as the last time such preclusion occurred). Lower courts, how-

ever, regularly engage in such balancing and at times do invalidate state laws on such grounds.

Id. (“Pike balancing is, however, alive and well in the lower courts.”).

See Wynne, 575 U.S. at 578.

See, e.g., Nat’l Pork Producers Council v. Ross, 6 F.4th 1021, 1025 (9th Cir. 2021), cert.

granted, 142 S. Ct. 1413 (2022) (challenging, under the dormant Commerce Clause, California’s

food product regulations that are stricter than those of other states).

\\jciprod01\productn\G\GWN\91-1\GWN101.txt unknown Seq: 7 24-FEB-23 14:13

2023] BIBB BALANCING 7

that overtly treat cross-border commerce worse than in-state com-

merce are facially discriminatory and presumptively unconstitu-

tional.

In contrast, courts examine facially neutral regulations for

whether they impose undue burdens on cross-border commerce; that

is, facially neutral regulations are ostensibly subject to Pike balancing.

Although commentators have provided coherent explanations for the

nondiscrimination strand of the dormant Commerce Clause, they have

struggled to understand undue burdens. Rather than focusing on the

discrimination cases, which are well understood and well justified, this

Article focuses on the harder undue-burden cases.

Augmenting the

traditional discrimination/undue-burden dichotomy, we offer a more

nuanced account. Our account considers not only whether the chal-

lenged regulation explicitly discriminates, but also the type of burden

the regulation imposes. We identify two types of burdens (or costs) on

interstate commerce: (1) those arising from a single state’s law, and

(2) those arising from interactions—more specifically, mismatches—

among two or more states’ laws.

Single-state burdens arise when—irrespective of what other states

do—a regulation impedes interstate commerce relative to in-state

commerce. Thus, all facially discriminatory regulations impose single-

state burdens; the excess burden on interstate commerce arises from

the application of the challenged state’s law alone.

Facially neutral regulations, in turn, can impose single-state or

mismatch burdens. Consider the regulation challenged in Pike. In

Pike, Arizona required cantaloupes grown in Arizona also to be

packed there.

In our terms, this constituted a single-state burden be-

cause it did not depend on the packing regulations applicable in other

states; instead, the burden arose from Arizona law alone. In balancing

Hughes v. Oklahoma, 441 U.S. 322, 337 (1979) (“[F]acial discrimination invokes the

strictest scrutiny.”).

For example, in his leading account of the dormant Commerce Clause, which garners

over 600 citations in Westlaw, Donald Regan argues that the Supreme Court decides dormant

Commerce Clause cases by reference to a simple question: Was the state motivated to pass the

challenged rule by intentional protectionism? If so, the Court strikes it down, and if not, the

Court upholds it. See Regan, supra note 16. Regan noted, however, that many cases did not seem R

to fit into this paradigm, and so he excluded those cases from his analysis. See id. at 1104 (cabin-

ing cases in which “genuine national interests other than the interest in avoiding state protec-

tionism” are at stake). This Article argues that certain undue-burden cases, namely, those

involving regulatory diversity, are not necessarily about protectionism, and so they cannot be

explained by a paradigm that relies exclusively on the presence or absence of intentional protec-

tionism. See discussion infra Section III.A.2.

Pike v. Bruce Church, Inc., 397 U.S. 137, 138, 142 (1970) (noting that rule challenged

was “even-handed[]”).

\\jciprod01\productn\G\GWN\91-1\GWN101.txt unknown Seq: 8 24-FEB-23 14:13

8 THE GEORGE WASHINGTON LAW REVIEW [Vol. 91:1

in Pike, the Supreme Court thus examined only Arizona law, an ap-

proach we refer to as using an internal benchmark.

Mismatch burdens, in contrast, arise from the interaction of mul-

tiple states’ laws.

The defining feature of a mismatch burden is that

the presence or absence of similar regulation by other states does af-

fect the cost to comply with the first state’s regulation. The paradig-

matic mismatch case was Bibb v. Navajo Freight Lines, Inc.,

in which

the Supreme Court precluded an Illinois law that required trucks on

Illinois highways to have curved mudflaps at a time when other states

permitted or required trucks to have straight mudflaps. As a result of

the differences in the content of these regulations, trucks with straight

mudflaps traveling interstate had to divert around Illinois or, if they

wanted to enter Illinois, switch to curved mudflaps at the state bor-

der.

Although the Supreme Court purports to use Pike balancing in

both single-state and mismatch cases—indeed, the Court does not ex-

pressly distinguish the two types of cases—this Article shows that the

Supreme Court’s approach to each type of case differs substantially.

Specifically, in mismatch cases, the Court uses external benchmarks

consisting of other states’ laws to measure both the burden on inter-

state commerce and the challenged state’s regulatory interest. In Bibb,

for example, the Supreme Court understood the burden on interstate

commerce to arise from Illinois’s departure from the straight-mudflap

rule applicable in other states.

Likewise, in defending its deviating

rule, Illinois had to show that its curved-mudflap requirement pro-

duced a significant safety gain over and above that from the straight

mudflaps permitted on roads in other states.

As this Article explains,

such a posture can place a heavy burden on innovating states.

One purpose of this Article is simply to recognize that the Su-

preme Court uses different baselines for evaluating single-state and

mismatch cases; namely, it uses internal benchmarks in single-state

cases, whereas it uses external benchmarks consisting of other states’

laws in mismatch cases. Dividing cases into those imposing single-state

or mismatch burdens helps to explain dormant Commerce Clause doc-

trine—it represents an improvement over the traditional discrimina-

See id. at 142.

The Supreme Court sometimes refers to “inconsistent” regulations. See CTS Corp. v.

Dynamics Corp. of Am., 481 U.S. 69, 88 (1987). We refer to “mismatches” to convey neutrality

about the constitutional status of such regulations.

359 U.S. 520 (1959).

Id. at 527–28.

Id. at 529–30.

Id. at 523–24.

\\jciprod01\productn\G\GWN\91-1\GWN101.txt unknown Seq: 9 24-FEB-23 14:13

2023] BIBB BALANCING 9

tion/undue-burden dichotomy and allows us to better understand the

hard cases.

Armed with our doctrinal reframing, this Article also offers criti-

cisms of judicial review in mismatch cases. First, the Supreme Court

has not taken a consistent approach in mismatch cases. For example,

at times, the Supreme Court refuses to intervene at all in mismatch

cases on the grounds that courts lack institutional competence to pre-

clude regulatory diversity.

Other times, the Court intervenes in mis-

match cases on the theory that it is a duty of the Court to preclude

state laws that otherwise would segment, or “Balkanize,“ the national

marketplace.

Such doctrinal inconsistency generates justified claims

of arbitrariness, and it stands in stark contrast with the Supreme

Court’s approach to single-state cases. The justices generally agree

about whether and how to analyze single-state cases, although they

sometimes disagree about the proper outcome of that analysis.

Second, in any case in which the Supreme Court decides to inter-

vene to analyze a mismatch, it must then choose external benchmarks

against which to measure both the burden on interstate commerce and

the challenged state’s interest. But justices do not always agree on the

proper external benchmarks. Benchmark selection thus also generates

claims of arbitrariness.

Third, mismatch cases are more susceptible than are single-state

cases to charges of “judicial legislation.” The reason for this has to do

with how states cure constitutional violations. The remedy in any dor-

mant Commerce Clause case is preclusion, but preclusion takes on

special meaning in mismatch cases. Specifically, when the Supreme

Court precludes a mismatch burden, that preclusion may implicitly en-

dorse the regulation that the Court used as the external benchmark in

the case. Thus, this Article argues that mismatch cases may have the

practical effect of imposing harmonized substantive rules. Consider

Bibb. Although the formal remedy in Bibb was preclusion of Illinois’s

curved-mudflap rule, the implication of the Court’s decision was clear;

See, e.g., S.C. State Highway Dep’t v. Barnwell Bros., Inc., 303 U.S. 177, 195–96 (1938).

See, e.g., Bibb, 359 U.S. at 527 (emphasizing a need for national uniformity); see also

Tenn. Wine & Spirits Retailers Ass’n v. Thomas, 139 S. Ct. 2449, 2461 (2019) (noting a “central

concern of the Framers that was an immediate reason for calling the Constitutional Convention:

the conviction that in order to succeed, the new Union would have to avoid the tendencies

toward economic Balkanization that had plagued relations among the Colonies and later among

the States under the Articles of Confederation.” (quoting Hughes v. Oklahoma, 441 U.S. 322,

325–26 (1979))).

See infra Section III.A.2.a (discussing Justice Rehnquist’s criticism of the selection of

the benchmark in Kassel).

\\jciprod01\productn\G\GWN\91-1\GWN101.txt unknown Seq: 10 24-FEB-23 14:13

10 THE GEORGE WASHINGTON LAW REVIEW [Vol. 91:1

Illinois had to conform to the mudflap rules of neighboring states, a

phenomenon we refer to as harmonization by preclusion.

In con-

trast, in single-state cases, the typical remedy involves desisting appli-

cation of the offending regulation—as in Pike—or equalizing the

treatment of in-state and interstate economic actors—as in facial dis-

crimination cases—but it need not lead to harmonization. This Article

also gives reasons why judicial intervention in mismatch cases is more

likely than judicial intervention in single-state cases to lead to

deregulation.

Fourth, this Article demonstrates that because more constitu-

tional values are at stake in mismatch cases than in single-state cases,

mismatch cases are generally harder to resolve.

This Article proceeds as follows: Part I provides background on

and criticisms of the dormant Commerce Clause. Part II reframes the

dormant Commerce Clause by supplementing the discrimination-ver-

sus-undue-burden distinction with a distinction that looks to the type

of burden—single-state or mismatch—imposed by the challenged reg-

ulation. Our framework augments, but does not supplant, the discrim-

ination-versus-undue-burden dichotomy. Part III compares mismatch

and single-state cases, explaining why certain well-known criticisms of

the dormant Commerce Clause apply with more force to mismatch

cases than to single-state cases. Part IV applies our new doctrinal

framework to a pending case to illustrate that mismatch cases raise

questions—such as which state’s rule prevails in cases of conflict? and

who decides?—that go to the core of federalism. Part IV also offers

suggestions for how the Supreme Court could minimize the adverse

impacts of mismatch cases, without completely refusing to consider

them.

I. T

ORMANT

OMMERCE

LAUSE AND

RITICS

A. The Dormant Commerce Clause

The Commerce Clause of the Constitution grants Congress the

power “[t]o regulate Commerce with foreign Nations, and among the

several States, and with the Indian Tribes.”

The Supreme Court has

interpreted the Commerce Clause to express not only an affirmative

Bibb, 359 U.S. at 530 (observing that “a new safety device—out of line with the require-

ments of the other States—may be so compelling that [Illinois] need not be the one to give

way. . . . [T]he present showing—balanced against the clear burden on commerce—is far too

inconclusive to make [Illinois’s] mudguard meet that test.”).

See infra Section III.C.

U.S. C

ONST

. art. I, § 8, cl. 3.

\\jciprod01\productn\G\GWN\91-1\GWN101.txt unknown Seq: 11 24-FEB-23 14:13

2023] BIBB BALANCING 11

grant of power to Congress, but also an implicit restraint on the

states.

For two centuries, the Supreme Court has employed this

“dormant” aspect of the Commerce Clause to strike a balance be-

tween state and federal interests.

The relevant state interest is regulatory autonomy. Autonomy en-

ables states to govern flexibly, satisfy preferences, and act as laborato-

ries of democracy.

The Court has identified various national and

federal interests that limit state regulatory autonomy; for example, the

Court often refers to free-trade values, such as “preserv[ing] ‘the free

flow of interstate commerce.’”

In the Court’s view, forbidding pro-

tectionism by states is union-preserving because it prevents “rivalries

and dislocations and reprisals”

that would “threaten at once the

peace and safety of the Union.”

Moreover, the Supreme Court has

interpreted the dormant Commerce Clause to protect out-of-state po-

litical interests that are not directly represented in the regulating

state’s political process, a concept sometimes called representation re-

inforcement.

Importantly for this Article, the Court also has cited

risks that state regulations might segment—or “Balkanize”

—the na-

Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1, 13–14 (1824).

For a history of the dormant Commerce Clause, see Denning, Reconstructing, supra

note 2, at 421, 427–48. R

Gregory v. Ashcroft, 501 U.S. 452, 458 (1991) (reciting federalism values); Dep’t of

Revenue of Ky. v. Davis, 553 U.S. 328, 338 (2008) (“[T]he Framers’ distrust of economic Balkan-

ization was limited by their federalism favoring a degree of local autonomy.”).

South Dakota v. Wayfair, Inc., 138 S. Ct. 2080, 2090 (2018) (quoting S. Pac. Co. v. Ariz.

ex rel. Sullivan, 325 U.S. 761, 770 (1945)).

H. P. Hood & Sons, Inc. v. Du Mond, 336 U.S. 525, 539 (1949).

Id. at 533. See generally Collins, supra note 16 (focusing on the dormant Commerce R

Clause’s role in forging economic union).

See, e.g., Southern Pacific, 325 U.S. at 767–68, n.2 (“[T]he Court has often recognized

that to the extent that the burden of state regulation falls on interests outside the state, it is

unlikely to be alleviated by the operation of those political restraints normally exerted when

interests within the state are affected.”); Hood, 336 U.S. at 539 (“[E]very consumer may look to

the free competition from every producing area in the Nation to protect him from exploitation

by any.”). For commentary, see, e.g., Eule, supra note 9, at 428, 435 (discussing representation R

reinforcement); see also J

OHN

ART

, D

EMOCRACY AND

ISTRUST

: A T

HEORY OF

UDICIAL

EVIEW

83 (1980) (describing the dormant Commerce Clause as needed “to protect the politi-

cally powerless”); Tushnet, supra note 16, at 133 (observing that, in addition to outsiders, “the R

general consumer interest is at a systematic disadvantage in legislative combat against organized

groups”).

The first reference to Balkanization by the Supreme Court was in a concurrence in

Duckworth v. Arkansas, 314 U.S. 390, 400 (1941) (Jackson, J., concurring) (“The practical result

is that in default of action by us [state regulations] will go on suffocating and retarding and

Balkanizing American commerce, trade and industry.”). The first mention of Balkanization in

the majority of a dormant Commerce Clause case was in 1979 in Hughes v. Oklahoma, 441 U.S.

322, 325–26 (1979) (noting the Framers’ “conviction that in order to succeed, the new Union

\\jciprod01\productn\G\GWN\91-1\GWN101.txt unknown Seq: 12 24-FEB-23 14:13

12 THE GEORGE WASHINGTON LAW REVIEW [Vol. 91:1

tional market. Emphasizing the need for “national uniformity” in reg-

ulation, the Court at times has interpreted the dormant Commerce

Clause to preclude market-segmenting regulations.

At other times,

the Court declared it inappropriate to intervene to prevent states from

enacting market-segmenting laws.

Given the vital, but often opposing, interests at stake in dormant

Commerce Clause cases, it is perhaps no surprise that judicial stan-

dards in them have evolved over time.

Modern doctrine sees two

principal types of challenges: facial discrimination and undue bur-

dens.

Facial discrimination involves explicit distinctions between in-

state and out-of-state economic actors or between in-state and inter-

state commerce. When states expressly discriminate, their regulations

receive strict scrutiny.

Although some commentators criticize facial

discrimination doctrine,

nearly all accept it as either consistent with

our overall federal structure and the vision of the Constitution’s foun-

ders, or applicable as a matter of precedent, or both.

would have to avoid the tendencies toward economic Balkanization that had plagued relations

among the Colonies and later among the States under the Articles of Confederation”). Id. at 326

(citing similar analysis, in Hood, 336 U.S. at 533–34, that did not employ the term “balkaniza-

tion”). The Court’s most recent use of the term was in 2019 in Tennessee Wine & Spirits Retailers

Ass’n v. Thomas, 139 S. Ct. 2449, 2461 (2019) (quoting Hughes, 441 U.S. at 325–26). The Court

has employed the term in a number of other instances. See Camps Newfound/Owatonna, Inc. v.

Town of Harrison, 520 U.S. 564, 577 (1997) (“Avoiding this sort of ‘economic balkanization,’ and

the retaliatory acts of other States that may follow, is one of the central purposes of our negative

Commerce Clause jurisprudence.” (citation omitted)); Fulton Corp. v. Faulkner, 516 U.S. 325,

333 n.3 (1996) (referring to “‘economic Balkanization’ that our dormant Commerce Clause juris-

prudence has long sought to prevent”); Bacchus Imports, Ltd. v. Dias, 468 U.S. 263, 276 (1984)

(“It is also beyond doubt that the Commerce Clause itself furthers strong federal interests in

preventing economic Balkanization.”).

See, e.g., Bibb v. Navajo Freight Lines, Inc., 359 U.S. 520, 527 (1959) (quoting Morgan v.

Virginia, 328 U.S. 373, 386 (1946)).

See Denning, Reconstructing, supra note 2, at 427–48 (giving history of dormant Com- R

merce Clause jurisprudence).

South Dakota v. Wayfair, Inc., 138 S. Ct. 2080, 2090–91 (2018) (“Modern precedents

rest upon two primary principles that mark the boundaries of a State’s authority to regulate

interstate commerce. First, state regulations may not discriminate against interstate commerce;

and second, States may not impose undue burdens on interstate commerce. State laws that dis-

criminate against interstate commerce face ‘a virtually per se rule of invalidity.’ State laws that

‘regulate[] even-handedly to effectuate a legitimate local public interest . . . will be upheld unless

the burden imposed on such commerce is clearly excessive in relation to the putative local bene-

fits.’” (citation omitted) (first quoting Granholm v. Heald, 544 U.S. 460, 476 (2005); then quoting

Pike v. Bruce Church, Inc., 397 U.S. 137, 142 (1970))). Other dormant Commerce Clause chal-

lenges involve nexus and extraterritoriality, doctrines this Article does not consider.

See, e.g., id.

See generally McGreal, supra note 16 (arguing that courts should not strike even facially R

discriminatory state laws in areas where in-state and out-of-state commerce do not compete).

Direct Mktg. Ass’n v. Brohl, 814 F.3d 1129, 1150 (10th Cir. 2016) (Gorsuch, J., concur-

\\jciprod01\productn\G\GWN\91-1\GWN101.txt unknown Seq: 13 24-FEB-23 14:13

2023] BIBB BALANCING 13

A state law that does not facially discriminate may nevertheless

violate the dormant Commerce Clause by imposing an “undue bur-

den” on interstate commerce. For the better part of a century, undue-

burdens analysis has involved judicial balancing.

The modern

description of this balancing derives from Pike v. Bruce Church:

Where the statute regulates even-handedly to effectuate a le-

gitimate local public interest, and its effects on interstate

commerce are only incidental, it will be upheld unless the

burden imposed on such commerce is clearly excessive in re-

lation to the putative local benefits. If a legitimate local pur-

pose is found, then the question becomes one of degree. And

the extent of the burden that will be tolerated will of course

depend on the nature of the local interest involved, and on

whether it could be promoted as well with a lesser impact on

interstate activities.

Ultimately, judges have the same goals when they apply undue-

burden analysis as when they apply nondiscrimination analysis,

namely, to weigh national and federal interests against state interests.

But whereas facially discriminatory regulations rarely survive dormant

Commerce Clause analysis, courts regularly uphold statutes against

claims that they unduly burden interstate commerce. The Supreme

Court has not always been clear about why it permitted or precluded

ring) (“And to the extent that there’s anything that’s uncontroversial about dormant commerce

clause jurisprudence it may be this anti-discrimination principle, for even critics of dormant com-

merce clause doctrine often endorse it even as they suggest it might find a more textually com-

fortable home in other constitutional provisions.”). In Tennessee Wine, Justices Alito, Breyer,

Ginsburg, Kagan, Kavanaugh, Sotomayor, and Chief Justice Roberts joined in precluding a

facially discriminatory state regulation for violating the dormant Commerce Clause. 139 S. Ct.

2449, 2456, 2476 (2019). Justices Gorsuch and Thomas dissented. Justice Gorsuch dissented be-

cause he concluded that the Twenty-first Amendment immunized the challenged regulation from

dormant Commerce Clause review. Id. at 2484 (Gorsuch, J., dissenting). Even as he has con-

curred in judgments applying the dormant Commerce Clause, Justice Gorsuch has expressed

skepticism about it. See Wayfair, 138 S. Ct. at 2100–01 (2018) (Gorsuch, J., concurring)

(“Whether and how much of this can be squared with the text of the Commerce Clause, justified

by stare decisis, or defended as misbranded products of federalism or antidiscrimination impera-

tives flowing from Article IV’s Privileges and Immunities Clause are questions for another

day.”). Justice Thomas opposes all aspects of the dormant Commerce Clause on grounds of its

atextuality. See, e.g., Comptroller of the Treasury of Md. v. Wynne, 575 U.S. 542, 578 (2015)

(Thomas, J., dissenting) (“I continue to adhere to my view that the negative Commerce

Clause . . . cannot serve as a basis for striking down a state statute.” (quoting McBurney v.

Young, 569 U.S. 221, 237 (2013) (Thomas, J., concurring))). Since Tennessee Wine, Justice Bar-

rett filled the seat of the late Justice Ginsburg, and Justice Jackson filled the seat of retired

Justice Breyer. As discussed supra note 18, their views as justices on dormant Commerce Clause R

doctrine are not yet known.

See Denning, Reconstructing, supra note 2, at 443–45 (tracing balancing back to 1938). R

Pike, 397 U.S. at 142 (citation omitted).

\\jciprod01\productn\G\GWN\91-1\GWN101.txt unknown Seq: 14 24-FEB-23 14:13

14 THE GEORGE WASHINGTON LAW REVIEW [Vol. 91:1

particular “even-handed” regulations under its undue-burdens stan-

dard.

As the next Section explains, this lack of clarity has generated

significant criticism.

B. Criticisms of Dormant Commerce Clause Doctrine

This Section reviews criticisms of the dormant Commerce Clause.

Although some—including Justice Thomas—have argued that the

dormant Commerce Clause is illegitimate because it lacks a sufficient

textual basis,

this Article focuses on criticisms lodged by those who,

although they accept dormant Commerce Clause doctrine in principle,

argue that the Court’s approach to deciding cases is deficient. The

main criticisms are that the doctrine is arbitrary and invites courts to

act as legislatures.

Discrimination against interstate commerce has a clear intuitive

meaning, but the idea of “undue burdens” does not. Critics—on and

off the bench—complain that Pike balancing usurps the legislative

role by encouraging judges to indulge their own preferences when de-

ciding whether to uphold or to preclude a state regulation.

Justice

Scalia, for instance, disparaged the analysis as “ad hocery.”

And a

persistent frustration with undue-burdens doctrine is that seemingly

similar cases garner sharply different outcomes. For example, in one

case, the Supreme Court held that a state that imposed more stringent

truck length limits than did neighboring states unduly burdened inter-

state commerce, but in another, it held that a state that imposed more

stringent truck weight limits than did neighboring states did not vio-

late the dormant Commerce Clause.

Despite criticisms of arbitrariness, there are some settled doc-

trines. As Donald Regan observed in his seminal 1986 article criticiz-

ing the dormant Commerce Clause, many cases boil down to the

question of whether the state enacted a regulation with protectionist

For examples, see infra Part II; see also B

ITTKER

& D

ENNING

, supra note 20. R

See Denning, Justice Thomas, supra note 15, at 157–59 (discussing views of Justice R

Thomas).

See supra notes 4–16 (describing criticisms). R

Comptroller of the Treasury of Md. v. Wynne, 575 U.S. 542, 574 (2015) (Scalia, J., dis-

senting); see also Denning, Reconstructing, supra note 2, at 422 (describing “cases with similar R

facts being decided differently, and the different outcomes justified on the basis of tendentious

distinctions.”).

Compare Kassel v. Consol. Freightways Corp., 450 U.S. 662, 677–79 (1981) (precluding

a state from deviating from the truck-length rule implemented in contiguous states), with S.C.

State Highway Dep’t v. Barnwell Bros., Inc., 303 U.S. 177, 195–96 (1938) (upholding ability of

state to maintain truck width and weight limits that differed from those of neighboring states).

\\jciprod01\productn\G\GWN\91-1\GWN101.txt unknown Seq: 15 24-FEB-23 14:13

2023] BIBB BALANCING 15

intent.

Although an express consideration of protectionist intent

does not always form part of the Supreme Court’s analysis, Regan

argued that the outcome of most cases could be predicted based on

the absence or presence of protectionist intent.

Specifically, where

protectionist intent was present, the Court generally precluded the

regulation; where such intent was absent, the Court generally sus-

tained the regulation. A major problem with this account, as Regan

readily acknowledged, was that it could not explain the decisions in a

number of dormant Commerce Clause cases—involving, among other

topics, cross-border transportation and tax—where the burden on in-

terstate commerce did not arise from intentional protectionism.

Re-

gan therefore cabined these cases as exceptions to the general rule

that the dormant Commerce Clause targets only intentional protec-

tionism.

This Article reveals what the cases excluded by Regan have

in common—they are mismatch cases, which warrant, and receive, dif-

ferent doctrinal analysis.

II. R

EFRAMING

ORMANT

OMMERCE

LAUSE

This Part reframes undue-burdens doctrine.

The Supreme

Court’s dormant Commerce Clause doctrine has long been under-

stood to involve two principal types of cases: facial discrimination and

Regan, supra note 16, at 1093. R

Id. Regan summarized the dormant Commerce Clause by the simple statement that

“[l]aws with protectionist purpose are invalid . . . laws without protectionist purpose . . . are

valid.” Id. at 1104. We think Regan overstates his claim, but it is important to note that he

limited it to only what he called “movement-of-goods” cases. Id. at 1182. Regan readily acknowl-

edged that interstate transportation, tax, and some other cases were not decided exclusively

upon the absence or presence of intentional protectionism, but rather were based on other val-

ues, including “national interest.” Id. (describing cases in which “the Court appears to do more

under the dormant commerce clause than merely suppress state protectionism”). What the cases

Regan excluded from his category of movement-of-goods have in common is that they are mis-

match cases. Although Regan referred to cases by topical area, there is nothing special about

transportation, tax, or even goods. Mismatches can occur in any area, including regulation of

goods. Indeed, Regan was forced to define his category of movement-of-goods cases as including

only “those cases in which no national interest other than the anti-protectionism interest is impli-

cated,” a definition he noted was “an interesting tautology.” Id. at 1191.

Id. at 1182. Another problem with Regan’s claim—which is that courts do and should

decide dormant Commerce Clause cases based only on the absence or presence of protectionist

intent—is that, except in cases of facial discrimination, it not only may be difficult to ascertain

legislative intent, but disputes have arisen regarding what types of evidence legitimately can be

used to ascertain legislative intent. See generally Caleb Nelson, Judicial Review of Legislative

Purpose, 83 N.Y.U. L. R

. 1784, 1795–1858 (2008) (giving history of judicial practices in deter-

mining legislative intent).

See Regan, supra note 16, at 1184–86. These exceptions are important for our analysis, R

and for understanding the dormant Commerce Clause more generally. See infra Section II.B.

Because it seeks to address the core of the dormant Commerce Clause, this Article does

\\jciprod01\productn\G\GWN\91-1\GWN101.txt unknown Seq: 16 24-FEB-23 14:13

16 THE GEORGE WASHINGTON LAW REVIEW [Vol. 91:1

undue burdens.

Jurists and commentators paired each type of case

with a method of judicial review: strict scrutiny for facial discrimina-

tion, and Pike balancing for undue burdens.

But that framework

does not accurately reflect the doctrine, which is more nuanced. The

disconnect between the actual doctrine and its description by courts

and commentators has bolstered claims that the doctrine is confusing

and incoherent and therefore should be limited or even eliminated.

This Part advocates for a conception of undue-burden doctrine

that is more faithful to the cases; one that takes into account the type

of burden the challenged rule imposes: single-state or mismatch. Sec-

tion II.A defines single-state and mismatch burdens. Section II.B

shows how the Supreme Court analyzes single-state burdens. Section

II.C shows how the Supreme Court analyzes mismatch burdens.

Thinking of cases in terms of single-state burdens and mismatch bur-

dens allows us to see consistent, but unstated, differences in the Su-

preme Court’s approaches to deciding these cases. Although the

Supreme Court has not formally acknowledged a distinction between

single-state and mismatch burdens, and even though the Court claims

to apply the same doctrinal test—Pike balancing—to all cases involv-

ing facially neutral rules, this Part shows that the Court as a practical

matter treats the two types of cases differently. For example, unlike

with single-state cases, justices often express reluctance to intervene in

mismatch cases, reasoning that because resolving mismatch cases in-

volves picking one state’s rule to prevail over another, it is essentially

legislative, not judicial. Likewise, this Part shows that, in those mis-

match cases in which the Court decides to intervene, it uses what we

call external benchmarks. Specifically, it compares the challenged

state’s regulation to other states’ regulation. No such cross-state com-

parisons are needed in single-state cases because, by definition, the

burden in a single-state case arises from the regulation of a single state

acting alone. Thinking about the cases in the way we suggest here clar-

ifies and simplifies the doctrine and lays the groundwork for our nor-

mative arguments in the rest of the Article.

not address several of its subdoctrines, including the market-participation exception, the govern-

ment-function exception, the extraterritoriality doctrine, or dormant-Commerce-Clause nexus.

See supra text accompanying note 48. R

See South Dakota v. Wayfair, Inc., 138 S. Ct. 2080, 2090–91 (2018); Brown-Forman Dis-

tillers Corp. v. N.Y. State Liquor Auth., 476 U.S 573, 579 (1986).

\\jciprod01\productn\G\GWN\91-1\GWN101.txt unknown Seq: 17 24-FEB-23 14:13

2023] BIBB BALANCING 17

A. Defining Types of Burdens

Before diving into our doctrinal analysis, this Section reviews the

types of burdens that matter under the dormant Commerce Clause,

and it defines single-state and mismatch burdens.

1. Symmetrical Versus Asymmetrical Burdens

Not all regulations impose burdens relevant to dormant Com-

merce Clause analysis. Consider regulations that impose what we call

symmetrical burdens. Symmetrical burdens fall evenly on in-state and

interstate commerce. For example, although they undoubtedly impact

cross-border commerce, some local regulations—such as minimum

wage laws and building codes—are symmetrical; compliance is no

more burdensome for out-of-staters than for in-staters, and hence the

rules do not discourage interstate commerce relative to in-state com-

merce. Accordingly, any legitimate state interest should be enough to

sustain them against dormant Commerce Clause challenges.

Contrast asymmetrical burdens, which this Article defines as

those that impose disproportionately greater costs on interstate com-

merce than on in-state commerce, hence discouraging interstate com-

merce relative to in-state commerce and potentially inspiring tit-for-tat

retaliation among states. The dormant Commerce Clause restrains

some, but not all, asymmetrical burdens. Specifically, it restrains only

unjustified asymmetrical burdens. State autonomy interests—includ-

ing states’ need to protect residents, cater to local conditions, and

achieve other legitimate ends—can justify asymmetrical burdens. Me-

diating between or balancing those interests is the heart of dormant

Commerce Clause analysis.

2. Single-State Versus Mismatch Burdens

A principal insight of this Article is that to fully understand dor-

mant Commerce Clause doctrine, we must first understand that regu-

lations impose different types of asymmetrical burdens on interstate

commerce. We can subdivide those burdens into two types: single-

state burdens and mismatch burdens. Single-state burdens arise from

the application of the challenged state’s law alone. Mismatch burdens

arise from the application of two or more states’ laws.

A regulation imposes a single-state burden when it burdens inter-

state commerce more than in-state commerce irrespective of what

See, e.g., Huron Portland Cement Co. v. Detroit, 362 U.S. 440, 448 (1960) (applying

rational-basis review).

\\jciprod01\productn\G\GWN\91-1\GWN101.txt unknown Seq: 18 24-FEB-23 14:13

18 THE GEORGE WASHINGTON LAW REVIEW [Vol. 91:1

other states do. Specifically, regulation imposes a single-state burden

when: (1) it would discourage cross-border commerce relative to in-

state commerce if no other states regulated in the area, and (2) it

would also do so if all other states were to adopt regulation identical to

that of the challenged state. Thus, one can think of single-state bur-

dens as being functionally equivalent, in compliance-cost terms, to an

entry toll. If a state has a flat annual entry toll, that toll imposes an

asymmetrical cost that is higher for cross-border commercial actors

than for commercial actors operating wholly within the state. And the

cost associated with that toll is independent of other states’ tolls; it

does not rise or fall depending on any other state’s toll.

Facially discriminatory rules impose single-state burdens—the

asymmetrical burden on interstate commerce arises from the law of

the discriminating state alone. But facially neutral rules can impose

single-state or mismatch burdens.

For example, Pike v. Bruce Church

involved a facially neutral rule that imposed a single-state burden. In

Pike, Arizona required farmers who grew cantaloupes in the state also

to pack them there.

Because the burden arising from Arizona’s rule

did not depend on the actions or regulations of other states, it was a

single-state burden. Specifically, adoption by other states of rules simi-

lar to (or different from) the Arizona rule would not affect the cost to

comply with the Arizona rule.

But facially neutral rules also may impose mismatch burdens. A

regulation imposes a mismatch burden if: (1) it would discourage

cross-border commerce relative to in-state commerce if no other state

regulated in the area, but (2) it would not discourage cross-border

commerce relative to in-state commerce if all other states adopted the

same regulation as the challenged state. Mismatch burdens are contin-

gent on other states’ regulations; they disappear when other states

have the same rule.

Mismatches can consist of substantive differences in the content

of regulations, as when one state allows sixty-five-foot trucks while

another prohibits them. Mismatches also occur when one state has a

regulation, and another state has no corresponding regulation, such

that an interstate economic actor becomes subject to new rules when

it expands across the border. Mismatches thus either increase costs for

cross-border, but not in-state, economic actors or strip out-of-state ec-

onomic actors of comparative advantages they otherwise would pos-

sess. When state regulations interact, the cost to comply with one

A state law can also impose both single-state and mismatch burdens. See infra note 70. R

Pike v. Bruce Church, Inc., 397 U.S. 137, 143 (1970).

\\jciprod01\productn\G\GWN\91-1\GWN101.txt unknown Seq: 19 24-FEB-23 14:13

2023] BIBB BALANCING 19

state’s regulation can vary from zero (if the state’s regulation is in no

dimension stricter than or incompatible with other states’ regula-

tions)

to infinite (if the state’s rule is mutually exclusive with other

states’ rules). In some cases, compliance will be cheap; in others it

could be so high that it stops cross-border commerce in its tracks.

Consider the facially neutral mismatch in Bibb, in which cross-

border truckers challenged an Illinois regulation that imposed a

curved-mudflap requirement at a time when neighboring states per-

mitted or required straight mudflaps.

If all other states adopted Illi-

nois’s curved-mudflap rule, then interstate truckers would experience

no greater costs to comply with Illinois’s rule than would in-state

truckers because truckers everywhere would use only curved mud-

flaps. But because Illinois’s rule was different from those of other

states, out-of-state truckers had to stop at the border to change mud-

flaps. Therefore, the burden in Bibb, which arose from regulatory di-

versity, is a mismatch burden. The most important feature of

mismatches is that they are conditional—the burden one state’s rule

imposes depends on the existence and content of other states’ rules.

Even when protectionist intent does not motivate the adoption of a

regulatory mismatch, a mismatch may severely curtail interstate com-

merce. Worse, states may create regulatory mismatches with protec-

Consider the existence of different opening-hours requirements for retailers. While

technically the regulations are mismatched, opening-hours diversity would have a negligible

asymmetrical burden on interstate commerce. Other examples might include local safety regula-

tions that impose costs on both in-state and out-of-state economic interests. See, e.g., Ray v. Atl.

Ritchfield Co., 435 U.S. 151, 173 (1978) (upholding a facially neutral requirement that tankers

exceeding certain size limits be accompanied by a tug escort in Puget Sound).

Regulations that impose mismatch burdens also can impose single-state burdens. The

classic example of a regulation that imposes both single-state and mismatch burdens is the Illi-

nois anti-takeover regulation struck down in CTS Corp. v. Dynamics Corp. of America, 481 U.S.

69 (1987). That regulation, which permitted Illinois to prevent a merger or acquisition if as little

as ten percent of the target corporation’s shares were held by Illinois residents, would potentially

create a mismatch with anti-takeover laws of other states. Id. at 72–75. The Illinois law also

imposed a single-state burden in that the law allowed the Illinois Secretary of State almost unfet-

tered ability to block such an acquisition. Id. at 81. Underscoring these two different types of

burdens, the Court several years later in Edgar v. MITE Corp., 457 U.S. 624 (1982) upheld an

Indiana anti-takeover law that only applied to target corporations chartered in Indiana, thus

reducing the possibility of overlapping jurisdictional claims (and hence reducing potential mis-

match burdens). Id. at 626–27, 646. In contrast, the dissent would have struck the law because it

gave Indiana broad authority to prevent takeovers, and takeovers overwhelmingly involved out-

of-state acquirers and in-state targets. In our terms, the dissent determined that the challenged

regulation imposed a severe single-state burden on interstate commerce. Id. at 656. This Article

does not consider the corporate law cases here because they implicate extraterritoriality more

than undue burdens.

Bibb v. Navajo Freight Lines, Inc., 359 U.S. 520, 520 (1959).

\\jciprod01\productn\G\GWN\91-1\GWN101.txt unknown Seq: 20 24-FEB-23 14:13

20 THE GEORGE WASHINGTON LAW REVIEW [Vol. 91:1

tionist intent, as when North Carolina forbade apple growers from

displaying quality-grading information from their state of origin in

Hunt v. Washington State Apple Advertising Commission.

Section

II.C will discuss both Bibb and Hunt.

B. Single-State Burdens and Pike Balancing

This Section illustrates how the Supreme Court analyzes single-

state cases that allege discrimination against or undue burdens on in-

terstate commerce.

Whereas facial discrimination receives strict

scrutiny, facially neutral single-state burdens are subject to Pike

balancing.

1. Facially Discriminatory Regulations

The easiest type of single-state burden to identify and understand

involves facial discrimination, that is, regulation that expressly distin-

guishes between state residents and nonresidents or between in-state

and interstate commerce. Facial discrimination imposes single-state

burdens because the burden does not depend on the content of any

other state’s rule. Facial discrimination cases have never been contro-

versial or difficult for courts to resolve under the dormant Commerce

Clause. Subjected to strict scrutiny, facially discriminatory regulations

almost never survive.

For example, in Hughes v. Oklahoma,

the Su-

preme Court held that Oklahoma could not forbid the out-of-state

sale of minnows caught within Oklahoma, while at the same time per-

mitting the in-state sale of such minnows; in Lewis v. BT Investment

Managers, Inc.,

the Court held that Florida could not prohibit out-

of-state business entities from conducting certain financial activities in

Florida that the state permitted equivalent Florida entities to conduct;

432 U.S. 333, 335–36 (1977).

The goal of this Article is to explain the most puzzling cases, namely facially neutral, but

burdensome, regulations. Other types of single-state burdens, including facially discriminatory

laws and taxes that fail the Court’s internal-consistency test, are subject to strict scrutiny and are

almost always precluded. The reason for strict scrutiny in cases of facial discrimination are obvi-

ous; reasons for strict scrutiny of internally inconsistent taxes less so. For explanation as to why

internally inconsistent taxes properly receive strict scrutiny, see Michael S. Knoll & Ruth Mason,

The Economic Foundation of the Dormant Commerce Clause, 103 V

. L. R

. 309, 329–33

(2017). Notwithstanding the technical nature of the explanation that underlies use of the internal

consistency test, the actual application of that test is straightforward, and so it is easy to identify

tax rules that are internally inconsistent and therefore discriminatory. See generally id.

Hughes v. Oklahoma, 441 U.S. 322, 337 (1979) (“[F]acial discrimination invokes the

strictest scrutiny . . . .”).

441 U.S. 332, 337–38 (1979).

447 U.S. 27, 27, 44 (1980).

\\jciprod01\productn\G\GWN\91-1\GWN101.txt unknown Seq: 21 24-FEB-23 14:13

2023] BIBB BALANCING 21

and in Boston Stock Exchange v. State Tax Commission,

the Court

held that New York could not tax stock sales at a lower rate when they

took place in New York than when they took place elsewhere. The

Supreme Court likewise has struck down facially discriminatory regu-

lations that banned in-state operations by nonresidents,

banned di-

rect shipment of alcohol to state residents by out-of-state producers,

and more.

Rarely has the Supreme Court found a facially discrimina-

tory regulation to be justified.

Few commentators dispute that courts

act properly when they preclude facially discriminatory rules.

2. Facially Neutral Regulations

The dormant Commerce Clause also precludes facially neutral

rules that discriminate in effect. The Supreme Court has stated that

“[t]he commerce clause forbids discrimination, whether forthright or

ingenious.”

When evaluating a facially neutral rule, what matters to

the Court is the rule’s impact on interstate commerce.

Each case dis-

cussed in this Section involves a facially neutral regulation that im-

posed a single-state burden on interstate commerce; these cases

involve Pike balancing.

429 U.S. 318, 318–19, 336 (1977).

Tenn. Wine and Spirits Retailers Ass’n v. Thomas, 139 S. Ct. 2449, 2476 (2019).

Granholm v. Heald, 544 U.S. 460, 465–66 (2005) (precluding a Michigan law allowing

in-state, but not out-of-state, wineries to ship directly to Michigan customers).

Great Atl. & Pac. Tea Co. v. Cottrell, 424 U.S. 366, 367–68 (1976) (striking down a

Mississippi statute prohibiting the sale of out-of-state milk in Mississippi unless its source state

accepted the sale of Mississippi milk in its territory); Sporhase v. Nebraska ex rel. Douglas, 458

U.S. 941, 943, 960 (1982) (precluding a Nebraska statute prohibiting the withdrawal of Nebraska

groundwater for transport across state lines unless the destination state granted reciprocal rights

of withdrawal and transport into Nebraska); see, e.g., New England Power Co. v. New Hamp-

shire, 455 U.S. 331, 333–34, 344 (1982) (precluding a New Hampshire law prohibiting the export

of hydroelectric power).

See Maine v. Taylor, 477 U.S. 131, 132–33, 151–52 (1986) (finding complete ban on

imported baitfish justified to prevent introduction of parasites and invasive species when no less

restrictive preventative measures would be effective).

But see Eule, supra note 9, at 428 (arguing for a “radically diminished role” for the R

dormant Commerce Clause, even in discrimination cases).

W. Lynn Creamery, Inc. v. Healy, 512 U.S. 186, 201 (1994); see also Dean Milk Co. v.

City of Madison, 340 U.S. 349, 354 (1951) (reasoning that limiting dormant Commerce Clause

scrutiny to facially discriminatory regulation “would mean that the Commerce Clause of itself

imposes no limitations on state action . . . save for the rare instance where a state artlessly

discloses an avowed purpose to discriminate against interstate goods”).

See W. Lynn Creamery, 512 U.S. at 201 (referring to a rule’s “practical operation”).

\\jciprod01\productn\G\GWN\91-1\GWN101.txt unknown Seq: 22 24-FEB-23 14:13

22 THE GEORGE WASHINGTON LAW REVIEW [Vol. 91:1

a. Pike v. Bruce Church (1970)

In Pike v. Bruce Church, the challenged regulation involved ty-

ing, a requirement that forces a commercial actor that conducts some

commercial activity in a state to also conduct additional commercial

activity there.

A cantaloupe grower challenged Arizona’s require-

ment that cantaloupes grown in Arizona also had to be packed there.

The asymmetrical burden in Pike arose because, by tying packing to

growing, Arizona precluded multistate growers from obtaining econo-

mies of scale from using packing facilities that they may have already

owned outside Arizona. For example, the challenger in Pike would

have preferred to use a packing facility it already owned nearby, just

across the border in California.

This asymmetrical burden was also a

single-state burden. Specifically, the cost to comply with Arizona’s

regulation would not decrease if all other states adopted an identical

rule. The Arizona rule, in effect, functioned as an entry toll.

To decide Pike, the Supreme Court invoked a preexisting doctri-

nal tool that has come to be known as Pike balancing. Under Pike

balancing, the Court first compares the asymmetrical burden a state

imposes on interstate commerce to the state’s interest in the chal-

lenged regulation.

The Court then may engage in narrow tailoring by

asking whether the state could have achieved its interest via a method

that would burden interstate commerce less than does the challenged

regulation.

In Pike, the Supreme Court compared the burden Ari-

zona imposed on in-state growers to the burden Arizona imposed on

interstate growers, and it concluded that only interstate growers had

to relinquish economies of scale that derived from consolidating pack-

Pike v. Bruce Church, Inc., 397 U.S. 137, 138, 145 (1970) (defining tying as “requiring

business operations to be performed in the home State that could more efficiently be performed

elsewhere”); cf. S.-Cent. Timber Dev., Inc. v. Wunnicke, 467 U.S. 82, 102, (1984) (Rehnquist, J.,

dissenting) (arguing that the majority should not have invalidated under the dormant Commerce

Clause a state’s “tying arrangement” that required timber harvested in a state also to be

processed there).

Pike, 397 U.S. at 138. The Court considered the Arizona packing rule to be facially

neutral because it did not draw a de jure distinction between in-state and out-of-state growers in

order to treat them differently. On the contrary, by its terms, the Arizona statute applied to all

growers the same way—if they grew cantaloupes in Arizona, they had to pack them there. Id. at

140–42.

Id. at 138. The parties in Pike stipulated that its practical effect was to “compel the

company to build packing facilities in [Arizona].” Id. at 140.

Id. at 142–43.

The Supreme Court does not always engage in explicit narrow tailoring as part of Pike

balancing, and in its most recent description of Pike balancing, it did not even mention it. See

South Dakota v. Wayfair, Inc., 138 S. Ct. 2080, 2091 (2018).

\\jciprod01\productn\G\GWN\91-1\GWN101.txt unknown Seq: 23 24-FEB-23 14:13

2023] BIBB BALANCING 23

ing into a single plant.

The Supreme Court weighed this burden

against Arizona’s justification for the regulation, which was to inform

the market that the relevant cantaloupes had been grown in Ari-

zona,

and the Court concluded that the burden outweighed Ari-

zona’s interest.

The Court also noted the relevance of alternative,

less burdensome, regulations—such as labeling—by which Arizona

could achieve its local interest.

It is not uncommon for courts strik-

ing a law that imposes a single-state burden under Pike to find both

that the law’s burden exceeds its benefit and that less burdensome

means were available to achieve the state’s legitimate ends.

Not every reader will be convinced by the Court’s analysis in Pike

that the asymmetric burden on interstate commerce outweighed the

states’ regulatory interest. Balancing involves a judgment call. The

Court’s decision in Pike rested in part on its long-held

attitude to-

ward the practice of tying, which it saw as imposing a “straitjacket on

the appellee company with respect to the allocation of its interstate

resources.”

The Court declared tying worthy of “particular suspi-

cion”

and declared it “virtually per se illegal.”

b. H. P. Hood & Sons, Inc. v. Du Mond (1949)

Dormant Commerce Clause challenges also arise when states use

facially neutral rules to limit market access. In H. P. Hood & Sons,

Pike, 397 U.S. at 145–46.

Id. at 142.

Id. at 143, 145 (distinguishing Arizona’s “tenuous” interest in the reputation of its pro-

duce from other types of interests that would have carried more weight, such as safety).

Id. at 142.

See Toomer v. Witsell, 334 U.S. 385, 403 (1948) (striking down a North Carolina statute

that tied shrimp packing to shrimp fishing, concluding that “an inevitable concomitant of [this]

statute . . . is to divert to South Carolina employment and business which might otherwise go to

Georgia”).

Pike, 397 U.S at 146; id. at 145 (“The nature of that burden is, constitutionally, more

significant than its extent” (emphasis added)); see also Toomer, 334 U.S. at 403–04 (disapproving

South Carolina’s attempt to “impose an artificial rigidity on the economic pattern of the indus-

try”); id. at 410 (Rutledge, J., concurring) (referring to the tying regulation as “aimed in terms

directly at interstate commerce alone, and thus would seem to be discriminatory in intent and

effect”). For other cases invalidating tying, see, e.g., Minnesota v. Barber, 136 U.S. 313, 329–30

(1890) (meat sold in-state had to be inspected there); Foster-Fountain Packing Co. v. Haydel, 278

U.S. 1, 13–14 (1928) (requiring shrimp caught in-state to be processed there); Johnson v. Haydel,

278 U.S. 16, 16–17 (1928) (requiring oysters caught in-state to be processed there); S.-Cent.

Timber Dev., Inc. v. Wunnicke, 467 U.S. 82, 84–85 (1984) (requiring timber harvested in-state to

be processed there).

Pike, 397 U.S. at 145.

Id.

\\jciprod01\productn\G\GWN\91-1\GWN101.txt unknown Seq: 24 24-FEB-23 14:13

24 THE GEORGE WASHINGTON LAW REVIEW [Vol. 91:1

Inc. v. Du Mond,

for example, the Supreme Court considered

whether New York could deny an out-of-state milk buyer a license to

operate an in-state milk depot because the state wanted to protect its

in-state milk market from greater competition from any source,

whether in-state or out-of-state. A majority of the Court held that

New York violated the dormant Commerce Clause because, despite

the absence of facial discrimination, the “avowed purpose” of the de-

nial of the license was to “aid local economic interests”

and for the

Court to permit such “prohibition of competition”

100

might spur “fan-

tastic rivalries and dislocations and reprisals.”

101

But the dissenters in

the case would have struck a different balance.

102

They regarded as

legitimate New York’s interest in stabilizing the milk market by regu-

lating all new entrants.

103

They viewed “the prevention of destructive

competition [as] a permissible exercise of the police power,”

104

pro-

vided the state did not target out-of-state competition for special

treatment.

105

Put differently, regulating to reduce competition was

permissible, whereas regulating to reduce competition specifically

from out-of-staters was impermissible. Thus, the dissenters would have

remanded for more fact-finding on the state’s intentions and its

interests.

c. Dean Milk Co. v. City of Madison (1951)

In 1951, the Supreme Court decided another milk case, Dean

Milk Co. v. City of Madison.

106

In Dean Milk, the City of Madison

banned the sale of milk in the city unless the milk was bottled within

336 U.S. 525, 526–27 (1949).

Id. at 530–31, 538 (“[T]he state may not use its admitted powers to protect the health

and safety of its people as a basis for suppressing competition.”).

100

Id. at 538 (quoting Buck v. Kuykendall, 267 U.S. 307, 315 (1925)).

101

Id. at 539.

102

Id. at 564 (Frankfurter, J., dissenting) (refusing to join the majority because he could not

“agree in treating what is essentially a problem of striking a balance between competing interests

as an exercise in absolutes”). Joined by Justice Murphy, Justice Black separately dissented, con-

cluding that there was no discrimination, and that, on balance, the state’s interest should have

prevailed. Id. at 549 (Black, J., dissenting).

103

Because a state’s interest in ensuring its residents a steady supply of wholesome milk is

so strong, the Supreme Court has accepted stringent regulation of the milk industry, including

price controls. Id. at 529.

104

Id. at 566 (Frankfurter, J., dissenting) (distinguishing state regulation of “competition

from whatever source,” which is permitted under the dormant Commerce Clause, from regula-

tion of “out-of-state competition,” which is not).

105

Id. at 570 (Frankfurter, J., dissenting).

106

340 U.S. 349 (1951).

\\jciprod01\productn\G\GWN\91-1\GWN101.txt unknown Seq: 25 24-FEB-23 14:13

2023] BIBB BALANCING 25

five miles of Madison’s central square.

107

Although the ordinance did

not explicitly target interstate commerce—and many Wisconsin dairy

farmers were also disadvantaged—an Illinois milk distributor argued

that the ordinance nevertheless violated the dormant Commerce

Clause. Madison responded that the ordinance promoted a legitimate

state interest, namely “convenient, economical and efficient plant in-

spection.”

108

But the Supreme Court held that the ordinance had the

“practical effect” of “exclud[ing] from distribution in Madison whole-

some milk produced and pasteurized in Illinois.”

109

In this case, physi-

cal distance to the Madison town square operated as a proxy to

discriminate against interstate commerce.

110

The Court concluded that

by limiting milk sold in the city to only milk bottled at a short distance

from the city center, Madison—and by extension Wisconsin—discrim-

inated against milk from other states.

111

Dean Milk featured narrow

tailoring: because the city had available to it “reasonable [and] nondis-

criminatory alternatives” to satisfy “its unquestioned power to protect

the health and safety of its people,” the Supreme Court held that the

ordinance was not justified.

112

Such more narrowly tailored alterna-

tives would have included a requirement that milk from points farther

away be inspected to the same quality standards as those applicable in

Madison.

113

d. Bendix Autolite Corp. v. Midwesco Enterprises, Inc. (1988)

Bendix Autolite Corp. v. Midwesco Enterprises, Inc.

114

involved a

challenge to an Ohio statute that tolled the statute of limitations for

claims against out-of-state corporations that had not designated an

agent for service.

115

The Supreme Court noted that the challenged

statute imposed a heavy burden on interstate commerce.

116

The Ohio

107

Id. at 350–51, 355.

108

Id. at 352.

109

Id. at 354.

110

Although the Court did not describe the challenged regulation in terms of tying, the

regulation conditioned one economic activity in the city (selling milk) upon the economic actor’s

performance of additional economic activity in the city (inspection). See id. at 354–55.

111

Id. at 354.

112

Id.

113

Id. at 355 (noting that the city health inspector had suggested this option to the city

based on a federal “Model Milk Ordinance”).

114

486 U.S. 888 (1988).

115

Id. at 889–90.

116

Id. at 891 (the nature of the burden was that an out-of-state company had to either

indefinitely toll the statute of limitations or indefinitely subject itself to suit in Ohio on any cause

of action).

\\jciprod01\productn\G\GWN\91-1\GWN101.txt unknown Seq: 26 24-FEB-23 14:13

26 THE GEORGE WASHINGTON LAW REVIEW [Vol. 91:1

statute imposed a single-state burden—the adoption by other states of

a tolling statute identical to Ohio’s would do nothing to reduce the

burden Ohio imposed on interstate commerce.

Although it did not cite Pike, in deciding Bendix, a majority of

the Supreme Court engaged in balancing.

117

It compared the burden

Ohio imposed on interstate commerce to Ohio’s interest in enabling

its residents to serve process on foreign corporations. The Court held

that the challenged statute added little to Ohio’s long-arm statute, and

therefore the burden it imposed on interstate commerce could not be

justified under the dormant Commerce Clause.

118

One may agree or

disagree with the outcome in Bendix; we review it here to emphasize

that, even though it did not expressly cite Pike, the Bendix Court used

balancing to decide the case.

e. C & A Carbone, Inc. v. Town of Clarkstown (1994)

Like milk, waste disposal has generated many dormant Com-

merce Clause challenges. In the 1994 case C & A Carbone, Inc. v.

Town of Clarkstown,

119

a majority of the Supreme Court held that a

New York town violated the dormant Commerce Clause by requiring

local companies to process solid waste at a particular commercial fa-

cility. The town had granted the commercial facility a monopoly to

process local waste at above-market prices as part of a deal under

which the monopolist would build the processing plant and later trans-

fer it to the town for one dollar.

120

A majority of the Court held the

arrangement violated the dormant Commerce Clause because it “de-

prive[d] out-of-state businesses of access to a local market”

121

and

“squelche[d] competition.”

122

Although the town had a legitimate,

nonprotectionist, reason for granting the monopoly, namely, it was a

way to fund the construction of a processing plant that would be trans-

ferred to the town, the Court held that the town could have achieved

its goal through less protectionist measures, such as taxation.

123

Three

117

See id. at 897 (Scalia, J., concurring) (citing Pike and describing the majority opinion as

“[h]aving evaluated the interests on both sides as roughly as this, the Court then proceeds to

judge which is more important. This process is ordinarily called ‘balancing.’”).

118

Id. at 893–94 (majority opinion).

119

511 U.S. 383 (1994).

120

Id. at 386–87.

121

Id. at 389.

122

Id. at 392.

123

Id. at 393–94. The majority held the challenged ordinance to be discriminatory, but

Justice O’Connor pointed out that it was not facially so, since all of the town’s waste had to be

processed by the monopolist. See id. 405–06 (O’Connor, J., concurring) (concluding that the

ordinance was invalid under Pike).

\\jciprod01\productn\G\GWN\91-1\GWN101.txt unknown Seq: 27 24-FEB-23 14:13

2023] BIBB BALANCING 27

dissenting justices concluded that the ordinance should have been up-

held because the processing facility was so closely related to the

town’s governing function.

124

f. Lloyd A. Fry Roofing Co. v. Wood (1952)

In contrast with the facially neutral cases just discussed, which

involved obvious protectionist impacts, rules that impose only inciden-

tal single-state burdens and do not involve protectionist intent typi-

cally survive dormant Commerce Clause review. For example, in 1952

in Lloyd A. Fry Roofing Co. v. Wood,

125

the Supreme Court upheld a

facially neutral state truck-licensing regime that required “driver-own-

ers to do nothing except apply for a permit.”

126

Although the permit-

ting regime involved what we would call an asymmetrical single-state

burden on interstate commerce,

127

the Supreme Court held that the

burden was justified because it enabled the state to “properly apply

[its] valid police, welfare, and safety regulations to motor carriers us-

ing its highways.”

128

In other cases, the Supreme Court upheld regula-

tions, despite the asymmetric burdens they imposed on interstate

commerce, either because the asymmetric impact on interstate com-

merce was only incidental or because the burden was justified by the

regulatory interest.

3. Understanding Single-State Cases

Balancing in some single-state cases is easy because one side of

the scale—either adverse impact on interstate commerce or legitimate

state interest—is essentially empty. For example, facially discrimina-

tory rules almost never survive dormant Commerce Clause review for

lack of a legitimate state interest in the discriminatory rule. Similarly,

in Hood, a majority of the Court ultimately rejected the legitimacy of

New York’s proffered state interest, which was to reduce competi-

tion.

129

Such reasoning is equivalent to concluding that the state had

no legitimate interest to weigh against the burden it imposed on inter-

124

Id. at 419 (Souter, J., dissenting).

125

344 U.S. 157 (1952).

126

Id. at 161; id. at 163 (upholding the regulation).

127

That is, the cost to comply did not depend on the rules of any other state, and in particu-

lar, the cost to comply would not decrease if other states adopted the same rule.

128

Fry Roofing, 344 U.S. at 161; see also California v. Thompson, 313 U.S. 109, 111, 116

(1941) (upholding a $1 licensing fee and $1000 bond requirement).

129

H. P. Hood & Sons, Inc. v. Du Mond, 336 U.S. 525, 542 (1949) (“[H]ere the challenge is

only to a denial of facilities for interstate commerce upon the sole and specific grounds that it

will subject others to competition and take supplies needed locally, an end, as we have shown,

always held to be precluded by the Commerce Clause.”).

\\jciprod01\productn\G\GWN\91-1\GWN101.txt unknown Seq: 28 24-FEB-23 14:13

28 THE GEORGE WASHINGTON LAW REVIEW [Vol. 91:1

state commerce. Other Pike balancing cases are likewise easy to re-

solve because the burden side of the balancing scale is essentially

empty, such that any legitimate state interest can outweigh it. This is

true of de minimis asymmetrical burdens on interstate commerce,

such as the registration requirement in Fry Roofing.

130

The remainder of cases involve more careful review. For example,

regulations that impose significant asymmetrical burdens—such as the

tying regulation in Pike or the statute of limitations in Bendix—can

only be justified by legitimate state interests that cannot be satisfied

via less burdensome regulation. Thus, it should come as no surprise

when the Supreme Court strikes down regulations—such as those in

Dean Milk and Carbone—that completely close the state’s market to

out-of-state competition. The Court upholds such stringent rules only

in rare cases, as when needed to prevent contagion that cannot be

stopped by other means.

131

Other cases involve close judgment calls.

Although a majority of the Court in Hood thought that New York’s

refusal to grant a milk-depot permit to an out-of-state milk buyer was

motivated by an illegitimate state interest—namely protectionism that

would inspire retaliation—three dissenters regarded the state as moti-

vated by an intent to stabilize competition in a way that did not imper-

missibly target out-of-state interests. Cases like Hood frustrate

observers because it is difficult to predict their outcomes.

132

Likewise,

in his concurrence in Bendix, Justice Scalia observed that the interests

on each side of the Pike balancing scale were “incommensurate,” and

“an opinion could as persuasively have been written coming out the

opposite way.”

133

This Article will have more to say about Pike bal-

ancing in Part III, after we introduce the notion of mismatches.

130

See Fry Roofing, 344 U.S. at 162 (citing precedent for the conclusion that “a state can

regulate so long as no undue burden is imposed on interstate commerce, and that a mere re-

quirement for a permit is not such a burden”).

131

Compare Maine v. Taylor, 477 U.S. 131, 151–52 (1986) (finding complete ban on im-

ported baitfish was justified to prevent introduction of parasites and invasive species because no

less restrictive means would be effective), with R.R. Co. v. Husen, 95 U.S. 465, 473–74 (1877)

(precluding exclusion of out-of-state cattle to prevent contagion because less restrictive means,

including quarantines and inspections, were available).

132

See, e.g., Regan, supra note 16, at 1262 (“I am not certain Hood was correctly decided R

or, if it was, what is the best analysis.”).

133

Bendix Autolite Corp. v. Midwesco Enters., Inc., 486 U.S. 888, 897 (Scalia, J.,

concurring).

\\jciprod01\productn\G\GWN\91-1\GWN101.txt unknown Seq: 29 24-FEB-23 14:13

2023] BIBB BALANCING 29

C. Mismatch Burdens and Bibb Balancing

We now consider mismatches.

134

The defining feature of a mis-

match is that the presence or absence of similar regulation by other

states affects the cost to comply with the first state’s rule. Put simply,

mismatch burdens arise from differences among states’ regulations,

and they either increase costs for cross-border, but not in-state, eco-

nomic actors or strip out-of-state economic actors of comparative ad-

vantages they otherwise would possess.

Some dormant Commerce Clause concerns are common to both

single-state and mismatch cases, whereas others are unique to mis-

match cases. As with single-state cases, mismatches may raise ques-

tions about intentional protectionism. That is, mismatches may be

designed deliberately to exclude out-of-state products or services or to

otherwise increase costs for out-of-staters, and concerns about inten-

tional protectionism may be present even when states also seem to

have good reasons (e.g., safety or consumer protection) for regulating.

When mismatches display intentional protectionism, the Court re-

solves them on that basis alone. But the Court may also closely scruti-

nize mismatch cases even when it finds no protectionist intent. In such

cases, the Court employs what we call Bibb balancing. Unlike Pike

balancing, Bibb balancing employs external benchmarks consisting of

other states’ laws as a baseline for evaluating the challenged state’s

rule. This approach is inevitable; mismatch burdens must be measured

against other states’ laws because the nature of a mismatch burden is

that it arises from regulatory diversity.

1. Cases

a. Intentionally Protectionist Mismatches

When states enact regulatory mismatches with protectionist in-

tent, courts have precluded them for that reason.

135

In this respect,

mismatch and single-state cases are similar. Such cases pose the prob-

lem of establishing intent, but this problem is common to both single-

state and mismatch cases.

134

In general, our selection of cases is meant to be representative, rather than comprehen-

sive, of the problem of mismatches.

135

See, e.g., J. R. Brooks & Son, Inc. v. Reagan, No. C-71-1311 SC, 1973 U.S. Dist. LEXIS

15732, at *8, *20 (N.D. Cal. Sept. 18, 1973) (precluding an intentionally protectionist mismatch).

\\jciprod01\productn\G\GWN\91-1\GWN101.txt unknown Seq: 30 24-FEB-23 14:13

30 THE GEORGE WASHINGTON LAW REVIEW [Vol. 91:1

i. Florida Lime & Avocado Growers, Inc. v. Paul (1963)

For example, in Florida Lime & Avocado Growers, Inc. v. Paul,

136

California prohibited the shipment within California of avocados that

did not meet a minimum fat threshold.

137

Florida’s use of federal ripe-

ness standards, which relied on picking date and fruit size, created a

mismatch with California’s use of fat content.

138

California defended

the fat-content rule as needed to ensure ripeness, but Florida avocado

growers complained that Florida avocado varietals were unlikely to

reach California’s prescribed minimum fat content, even when fully

ripe according to federal standards.

139

Although California did not

facially discriminate against Florida avocados, there was a question of

whether California used fat content as a discriminatory proxy.

140

The

trial record in Florida Lime did not enable the Supreme Court to con-

clude that California had protectionist intent to exclude Florida avo-

cados. This was not only because the trial record contained conflicts

and questions regarding the admissibility of certain evidence,

141

but

also because the trial court assumed, apparently contrary to fact, that

at the time California enacted the challenged regulation “California

growers faced no meaningful competition from Florida growers.”

142

To get clarity on this question, the Supreme Court remanded the

case for further fact finding.

143

The Court also confirmed that even if

the regulation was not adopted for protectionist motives, given its dis-

proportionate effect on Florida avocados, “the continued application”

of the regulation might discriminate against or unduly burden or inter-

state commerce,

144

in a manner that outweighed what the Court re-

garded as California’s legitimate interest in ensuring the ripeness of

136

373 U.S. 132 (1963).

137

Id. at 133–34.

138

Id. at 139.

139

Id. at 134–35 (federal standards were based on days of maturity).

140

Florida Lime is a mismatch case because, if all states implemented California’s fat-con-

tent rule, then farmers would adjust to that regulation, and farmers in Florida would grow either

no avocados or only avocados that could meet California’s standard, which would also be Flor-

ida’s standard. Thus, under conditions of uniform rules, the asymmetrical burden on interstate

commerce would disappear. See id. at 133–134.

141

Id. at 155.

142

Id. at 153 n.19 (noting that this assumption was questionable because there not only

“appear[ed] to have been vigorous competition” between the two states, but also because Flor-

ida growers “immediately and vigorously protested” the passage of the fat-content rule, and a

U.S. senator representing Florida filed a complaint with the Department of Agriculture).

143

Id. at 136–37. See id. at 154 (noting that the district court’s evidentiary rulings had cre-

ated confusion in the record).

144

Id. at 153–54.

\\jciprod01\productn\G\GWN\91-1\GWN101.txt unknown Seq: 31 24-FEB-23 14:13

2023] BIBB BALANCING 31

avocados for California consumers.

145

Interestingly, four dissenting

justices would have held that federal avocado ripeness standards pre-

empted conflicting California rules, in part on the grounds that a goal

of the Secretary of Agriculture in prescribing national standards was

to avoid “[l]ack of uniformity [that] tends to obstruct commerce [and]

to divide the nation into many markets.”

146

Although there is no pub-

lished case on remand, in a subsequent case challenging the same reg-

ulation, a three-judge California district court precluded the fat-

content rule on the grounds that it operated “as an embargo against

Florida-grown avocados” that could not be justified by California’s

consumer-protection interests.

147

In striking the law, the panel under-

scored extensive evidence of intentional protectionism on the part of

the California legislature, and it pointed to—as a less discriminatory

alternative—the federal picking-date and size rules that Florida

used.

148

ii. Hunt v. Washington State Apple Advertising

Commission (1977)

In 1977, the Supreme Court decided on the merits another case

involving what the out-of-state challenger charged was an intention-

ally protectionist mismatch. In Hunt v. Washington State Apple Adver-

tising Commission,

149

North Carolina had a rule that required apple

shipping containers to bear only either federal quality gradings or no

grades at all; such containers could not bear grades from other states’

regulatory regimes.

150

North Carolina’s requirement was “unique in

145

Id. at 154 (noting that “[o]ther state regulations raising similar problems have been

found to be discriminatory or burdensome notwithstanding a legitimate state interest in some

form of regulation—either because they exceeded the limits necessary to vindicate that interest

or because they unreasonably favored local producers at the expense of competitors from other

States”) (citation omitted). Note, however, that the dissenters emphasized that there was no

claim by California that the regulation advanced health or protected consumers against fraud or

deceptive practices. See id. at 161 n.3 (White, J. dissenting).

146

Id. at 169 (White, J., dissenting).

147

J. R. Brooks & Son, Inc. v. Reagan, No. C-71-1311 SC, 1973 U.S. Dist. LEXIS 15732, at

*8 (N.D. Cal. Sept. 18, 1973). The case involved a fourteen-day trial in which the court took

evidence of asymmetrical effect and protectionist intent. Among other facts, the panel concluded

that maintenance of the fat-content regulation was “the result of pressure from the California

avocado industry, for the purpose, inter alia, of excluding competition from Florida avocados in

California markets.” Id. at *14–15 (holding that California’s interest could be served by adopting

the federal standards of ripeness, which were based on size and harvest date).

148

Id. at *10–11.

149

432 U.S. 333 (1977).

150

Id. at 352.

\\jciprod01\productn\G\GWN\91-1\GWN101.txt unknown Seq: 32 24-FEB-23 14:13

32 THE GEORGE WASHINGTON LAW REVIEW [Vol. 91:1

the 50 States,”

151

and specifically, it was different from grading stan-

dards applicable in Washington. Because Washington quality grading

standards were stricter, they conferred a marketplace advantage on

Washington apples.

152

Indeed, the Washington Apple Commission,

which brought the case, suggested that North Carolina adopted its

rule barring other states’ labels specifically to strip Washington apples

of their competitive advantage in the North Carolina market. The

Commission insisted that the impact on Washington apples was “not

an unintended byproduct” of the North Carolina regulation.

153

Al-

though the Supreme Court acknowledged “some indications in the re-

cord”

154

that North Carolina sought to exclude or disadvantage

Washington apples, the Court concluded that it “need not ascribe an

economic protection motive to the North Carolina Legislature to re-

solve this case.”

155

Instead, the Court noted that North Carolina’s rule would require

Washington growers to either repack their apples or to “obliterate the

printed labels on containers shipped to North Carolina.”

156

The Court

thus took Washington law as a given, and framed North Carolina law

as a deviation from it. Put differently, the Court used Washington’s

regime as a baseline for measuring the burden that the North Carolina

regime imposed on interstate commerce. The use of other states’ re-

gimes as a baseline in measuring the burden on interstate commerce

imposed by the challenged state’s regulation is what we mean when

we characterize the Supreme Court as using an “external benchmark”

in mismatch cases.

Citing Pike, the Court weighed against this burden North Caro-

lina’s proffered interest, which was to protect consumers from confu-

sion arising from a multiplicity of different apple grading standards.

157

151

Id. at 337.

152

Id. at 350–51 (noting that the market preferred Washington’s grading system to the

federal grading system because Washington’s displayed “greater consistency, [due to] its empha-

sis on color, and its supporting mandatory inspections”).

153

Id. at 352.

154

Id.

155

Id.

156

North Carolina required labels on closed containers of apples to either have the applica-

ble USDA grade or no grade shown at all. This meant that Washington growers could not display

Washington’s own unique state grade on apple containers they shipped to North Carolina. Be-

cause Washington growers packed their apples into prelabeled containers before shipping to

various states, North Carolina’s “unique regulation would have required Washington growers to

obliterate the printed labels on containers shipped to North Carolina, thus giving their product a

damaged appearance,” or face the significant logistical and financial cost of repacking apples

specifically for sale in North Carolina. Id. at 337–38.

157

See id. at 350. North Carolina cited the fact that seven states used their own unique

\\jciprod01\productn\G\GWN\91-1\GWN101.txt unknown Seq: 33 24-FEB-23 14:13

2023] BIBB BALANCING 33

The Court did not think the North Carolina statute would advance

North Carolina’s legitimate

158

consumer-protection goal.

159

And more-

over, the Court reasoned that North Carolina buyers would experi-

ence less confusion from Washington’s more precise labeling regime

than from North Carolina’s preferred alternative.

160

Such reasoning

weighs not only the burden, but also North Carolina’s regulatory in-

terest against a baseline generated by Washington’s labeling regime.

Finally, the Court pointed to less restrictive alternatives by which

North Carolina could achieve its consumer-protection goals, such as

allowing Washington growers to display both Washington and federal

grades.

161

Ultimately, the Hunt Court engendered doctrinal confusion by

mixing the discrimination and undue burden strands of dormant Com-

merce Clause when it concluded that “the challenged statute has the

practical effect of not only burdening interstate sales of Washington

apples, but also discriminating against them.”

162

We may be able to

attribute this mixed legal conclusion to evidence that North Carolina

intentionally created the mismatch to exclude Washington apples.

163

better way to understand Hunt under the balancing standard might be

to say that the burden on interstate commerce arising from the mis-

match easily outweighed North Carolina’s dubious

164

—or even imper-

missibly protectionist—interest in its labeling rule.

b. Nonprotectionist, or Arguably Nonprotectionist, Mismatches

When the Supreme Court cannot resolve a mismatch case based

on intentional protectionism, it follows one of two major doctrinal ap-

proaches. Under the first, it summarily upholds the regulation. We call

this approach noninterventionist because the Court justifies it by refer-

apple grading system and argued that lack of uniformity could confuse the consumer as to the

apple’s actual quality. Id. at 349.

158

Id. at 350 (referring to “health and consumer protection” as legitimate goals).

159

Id. at 353 (North Carolina’s rule can “hardly be thought to eliminate the problems of

deception and confusion”).

160

Id.

161

Id. at 354.

162

Id. at 350, 352 (noting the challenger’s argument that the regulation’s “discriminatory

impact on interstate commerce was not an unintended byproduct”).

163

Id. at 352 (acknowledging “some indications in the record” to the effect that North

Carolina intentionally discriminated against Washington apples).

164

North Carolina’s consumer protection interest was dubious both because the state

sought to protect sophisticated bulk apple buyers who could be expected to know their business,

and because there was no evidence of actual market confusion for the sixty years of operation of

the Washington grading regime. Id. at 338.

\\jciprod01\productn\G\GWN\91-1\GWN101.txt unknown Seq: 34 24-FEB-23 14:13

34 THE GEORGE WASHINGTON LAW REVIEW [Vol. 91:1

ence to limits on its own institutional powers. The second approach,

which is interventionist, involves Bibb balancing. Under Bibb balanc-

ing, the Court either precludes or sustains the challenged law after

analysis. Both the interventionist and noninterventionist approaches

appear to be alive and well, and which will prevail in a given case is

unpredictable.

i. Nonintervention

1. State Highway Department v. Barnwell Bros., Inc. (1938)

In 1938, in South Carolina State Highway Department v. Barnwell

Bros., Inc.,

165

South Carolina adopted truck weight and width limits

that were stricter than those of neighboring states.

166

Challengers ar-

gued that South Carolina’s rule unconstitutionally burdened interstate

commerce. The South Carolina regulation imposed a mismatch bur-

den; specifically, if all states had the same limits as South Carolina,

truckers everywhere would comply with those limits, and so South

Carolina’s rule would not disproportionately burden (or exclude) out-

of-state trucks.

South Carolina argued that it needed strict weight and width lim-

its to protect its roads from wear.

167

Even though the district court

found the limits were an unreasonable means to preserve highways

and conferred no safety advantage,

168

and even though the Supreme

Court acknowledged that the vast majority of interstate trucking ex-

ceeded the South Carolina limits and therefore would be shut out of

South Carolina,

169

the Supreme Court nevertheless unanimously

170

up-

held the regulation on the grounds that state highways were a particu-

larly local concern.

171

Expressly rejecting judicial balancing

172

resolve “non-discriminatory”

173

burdens, the Supreme Court applied

rational-basis review.

174

Unlike in some other cases this Article dis-

cusses, a perceived need for national uniformity in highway regula-

165

303 U.S. 177 (1938).

166

Id. at 179.

167

Id. at 192–93.

168

Id. at 183.

169

See id. at 182.

170

The decision was 7–0. Justices Cardozo and Reed did not take part. Id. at 196.

171

Id. at 190.

172

Id. at 191–92 (noting that the constitutionality of such highway regulation “is not to be

determined by weighing in the judicial scales the merits of the legislative choice and rejecting it if

the weight of evidence presented in court appears to favor a different standard”).

173

Id. at 190.

174

Id. at 189 (“[S]o long as the state action does not discriminate, the burden is one which

the Constitution permits because it is an inseparable incident of the exercise of a legislative

\\jciprod01\productn\G\GWN\91-1\GWN101.txt unknown Seq: 35 24-FEB-23 14:13

2023] BIBB BALANCING 35

tions played no role in Barnwell; indeed, the Court observed that

precluding South Carolina’s rule would be tantamount to “forc[ing]

the states to conform to standards which Congress might, but has not

adopted.”

175

Thus, if uniform regulation of highways were needed,

Congress, not the Supreme Court, should impose them.

176

2. Moorman Manufacturing Co. v. Bair (1978)

Moorman Manufacturing Co. v. Bair

177

was a 1978 case involving

a state income tax. Before examining Moorman, however, we offer a

word of qualification. In 2015, in Comptroller of the Treasury of Mary-

land v. Wynne,

178

the Supreme Court confirmed that mismatches in

tax bases (as opposed to mismatches in tax compliance rules), do not

violate the dormant Commerce Clause as long as they are what the

Court calls “internally consistent” because internally consistent taxes

do not asymmetrically burden interstate commerce.

179

Forty years ago,

however, when the Supreme Court decided Moorman, the Wynne

view of tax mismatches had not yet been developed. Thus, when

judges, litigants, and commentators thought about mismatched tax ba-

ses, particularly when such mismatches produced double taxation,

they generally assumed that mismatches produced asymmetric ef-

fects—that is, that they imposed greater costs on interstate than in-

authority.”). Id. at 192 (applying rational-basis review in the absence of any finding of

discrimination).

175

Id. at 187.

176

Id. at 190 (deciding that burdens arising from conflicts may require “legislation designed

to secure uniformity or in other respects to protect the national interest in the commerce, [and]

curtail to some extent the state’s regulatory power. But that is a legislative, not a judicial func-

tion, to be performed in the light of the Congressional judgment of what is appropriate regula-

tion of interstate commerce . . . .”).

177

437 U.S. 267, 283 (1978).

178

575 U.S. 542 (2014).

179

An internally consistent rule is one that, if adopted by all the states, would not result in

higher taxation for interstate than for in-state commerce. Id. at 560 (2015). The Court is correct,

as an economic matter, that—even when they lead to double taxation—tax base mismatches do

not asymmetrically burden interstate commerce as long they are internally consistent. The rea-

sons are technical and explained in our earlier work. See Knoll & Mason, supra note 73. R

The Court recently gave an example of a tax-base mismatch that would not violate the

dormant Commerce Clause. The Court stated that if one state taxed solely on the basis of resi-

dence—that is, it taxed its residents on their income regardless of where they earned that in-

come—and another state taxed solely on the basis of source—that is, it taxed all income earned

in the state regardless of where the owner of the income resided—then the simultaneous applica-

tion of those two regimes to a single person engaged in interstate commerce would not violate

the dormant Commerce Clause, notwithstanding resulting double taxation (or nontaxation). See

Wynne, 575 U.S. at 565–66. For more on why this result makes sense as an economic matter—

namely, because it would impose no asymmetric burden on interstate commerce—see Knoll &

Mason, supra note 73. R

\\jciprod01\productn\G\GWN\91-1\GWN101.txt unknown Seq: 36 24-FEB-23 14:13

36 THE GEORGE WASHINGTON LAW REVIEW [Vol. 91:1

state commerce.

180

Although the Supreme Court ultimately adopted a

more sophisticated view of tax mismatches in Wynne—one that is sup-

ported by economic analysis—this Article nevertheless discusses

Moorman because it provides insights into how justices think about

mismatches that they perceive as imposing asymmetrical burdens on

interstate commerce.

181

Understanding Moorman also requires a little background on

state taxation. The definition of income for state tax purposes gener-

ally does not generate mismatches because the states use harmonized

rules; specifically, they borrow the federal definition of income.

182

But

conflicts arise when states divide that income among themselves. For

example, states use formulas to calculate the portion of a company’s

income that is taxable in each state; those formulas account for the

relative presence in the state of the company’s factors of production,

such as payroll, property, and sales. In Moorman, a corporate tax-

payer complained that it suffered unconstitutional double taxation

when Iowa used a single-factor-sales formula at a time when all other

states used a particular three-factor formula dubbed the Massachu-

setts formula.

183

In a 6–3 decision, the Moorman Court acknowledged that diver-

sity in tax-apportionment formulas could lead to double taxation, but

it concluded that responsibility for any resulting burden was not at-

tributable solely to any one state.

184

Different states adopted different

tax apportionment rules. Iowa used sales; all other states used the

Massachusetts formula. As a result, the Court regarded multiple states

to be responsible for the mismatch.

185

Because the overlap could have

been cured by Iowa adopting the Massachusetts formula, or by other

states “us[ing] the Iowa formula,”

186

the Court could not conclude that

“the Iowa formula was at fault for whatever overlap may have ex-

180

They did not yet understand that although internally inconsistent mismatches were pro-

tectionist, internally consistent mismatches are not. See Knoll & Mason, supra note 73, at 312 R

(explaining which types of tax mismatches are protectionist).

181

Incidentally, although it played no role in the decision in Moorman, the challenged re-

gime in Moorman was internally consistent, and therefore also would be upheld under the

Court’s post-Wynne jurisprudence.

182

See Ruth Mason, Delegating Up: State Conformity with the Federal Tax Base, 62 D

UKE

L.J. 1267, 1269 (2013).

183

Moorman Mfg. Co. v. Bair, 437 U.S. 267, 271–72 (1978); id. at 283 (Powell J., dissenting)

(noting that forty-four out of forty-five states with income taxes used the three-factor formula).

184

Id. at 270, 276 (majority opinion).

185

Id. at 277 (“[W]e could not accept appellant’s argument that Iowa, rather than Illinois,

was necessarily at fault in a constitutional sense.”).

186

Id.

\\jciprod01\productn\G\GWN\91-1\GWN101.txt unknown Seq: 37 24-FEB-23 14:13

2023] BIBB BALANCING 37

isted.”

187

The Court specifically refused to use the dominant Massa-

chusetts formula as a benchmark for evaluating Iowa’s rule, reasoning

that doing so would require “the prevalent practice [to] be endorsed

as the constitutional rule.”

188

The Court resisted such endorsement,

even though it would have prevented double taxation, because the

Constitution is “neutral with respect to the content of any uniform

rule.”

189

Endorsing the Massachusetts formula as a nationwide rule

would have involved “extensive judicial lawmaking.”

190

Although con-

ceding that there may be “an overriding national interest in uniform-

ity” in taxation, the majority disagreed that any uniform rule could be

selected by the Supreme Court.

191

Instead, it was to Congress, “and

not this Court, that the Constitution has committed such policy

decisions.”

192

Like the Court’s holding in Barnwell, the majority’s reasoning in

Moorman was that any burden on interstate commerce arising from

legal diversity was not cognizable under the dormant Commerce

Clause. Although forty years separated Moorman and Barnwell, and

although the Moorman Court did not rely on Barnwell, the reasoning

in the two cases is similar in the sense that the Supreme Court would

not attribute the burden arising from a regulatory mismatch to the

challenged state alone—even when the challenged state had an outlier

rule. The Court refused to use other states’ laws as a benchmark, and

it refused to endorse a nationally uniform rule. In contrast, two dis-

senters in Moorman cited Pike and Bibb to argue that the Supreme

Court should have eliminated the mismatch by precluding Iowa’s out-

lier tax rule.

193

ii. Intervention

When mismatch cases do not involve clear protectionism, the

Court takes one of two approaches. Either it summarily upholds the

mismatch on the grounds that doing otherwise would exceed its com-

petence, as in Barnwell and Moorman, or it engages in more meaning-

ful dormant Commerce Clause review—using Bibb balancing as

distinct from Pike balancing—as in the cases discussed in this Section.

187

Id.

188

Id. at 279.

189

Id.

190

Id. at 278.

191

Id. at 280.

192

Id.

193

Id. at 295–96 (Powell, J., dissenting) (citing Bibb); id. at 289 (Powell, J., dissenting)

(citing Pike).

\\jciprod01\productn\G\GWN\91-1\GWN101.txt unknown Seq: 38 24-FEB-23 14:13

38 THE GEORGE WASHINGTON LAW REVIEW [Vol. 91:1

1. Southern Pacific v. Arizona (1945)

Our first interventionist case, Southern Pacific Co. v. Arizona ex

rel. Sullivan,

194

sharply contrasts with Barnwell. In Southern Pacific,

the Supreme Court considered Arizona’s facially neutral regulation

that, for safety reasons, placed upper bounds on the lengths of passen-

ger and freight trains.

195

Neighboring states had no (or less restrictive)

train-length standards, so challengers complained that the Arizona

rule inhibited interstate commerce by requiring interstate train opera-

tors to remove cars at the border.

196

This is a mismatch burden be-

cause if all states adopted Arizona’s train-length rules, then all train

operators in all states would comply with the Arizona rule every-

where, and cross-border train operators would face no special costs

that in-state operators did not.

197

For example, there would be no bor-

der stops to remove train cars.

The Southern Pacific Court specifically identified the relevant

burden as one associated with state regulatory diversity, and the Court

noted that such diversity “impair[ed]” the “uniformity of efficient rail-

road operation.”

198

Moreover, the Court singled out Arizona’s prac-

tice as restrictive compared to the rules of other states, because, at the

time, many other states had no length limits at all, so it was “standard

practice” to use more train cars than the Arizona law permitted.

199

Southern Pacific marks a sharp contrast with the view expressed by

the Barnwell Court that the content of other states’ rules did not

matter.

200

Although the Southern Pacific Court employed balancing, the

way it measured the burden and benefits of the Arizona regulation

was different than in the single-state cases, such as Pike.

201

Acknowl-

194

325 U.S. 761 (1945).

195

Id. at 763.

196

Id. at 774.

197

The mismatch burdens arose from differences between Arizona’s rule and other states’

rules (or, in this case, the absence of rules in other states). If all other states had the same rule as

Arizona, then trains everywhere would comply with it, and so trains crossing Arizona’s border

would face no burden that trains traveling exclusively within Arizona did not also face. Because

the burden would disappear upon harmonization, it is a mismatch burden.

198

Southern Pacific, 325 U.S. at 773.

199

Id. at 771.

200

S.C. State Highway Dep’t v. Barnwell Bros., Inc., 303 U.S. 177, 195 (1938) (“The fact

that many states have adopted a different standard is not persuasive.”).

201

Southern Pacific, 325 U.S. at 768–69 (“[R]egulation of local matters may also operate as

a regulation of commerce, in which reconciliation of the conflicting claims of state and national

power is to be attained only by some appraisal and accommodation of the competing demands of

the state and national interests involved.”). Id. at 783–84 (concluding the “state interest is out-

\\jciprod01\productn\G\GWN\91-1\GWN101.txt unknown Seq: 39 24-FEB-23 14:13

2023] BIBB BALANCING 39

edging public safety as a compelling government interest, the Su-

preme Court concluded that Arizona attained only a “slight and

dubious advantage”

202

in safety by implementing length limitations.

And it concluded that the safety interest could not outweigh “the na-

tional interest in keeping interstate commerce free from interferences

which seriously impede it and subject it to local regulation which does

not have a uniform effect.”

203

Thus, it was not the absolute effect of

the Arizona rule on interstate commerce that mattered, but rather its

effect relative to the rules—or lack thereof—of other states. In this

way, the Southern Pacific Court weighed contingent interests on both

sides of the balancing scale: it calculated the burden Arizona imposed

on interstate commerce by reference to other states’ regulation (or

lack thereof), and it evaluated Arizona’s improvement in safety rela-

tive to other states’ rules.

204

Under this calculus, the Court concluded

that the burden outweighed the state interest. The Court furthermore

concluded that if safety concerns warranted train-length limits, only

Congress could impose them.

205

Justice Black dissented from the deci-

sion, arguing that it was improper for the Supreme Court to act as a

“super-legislature”

206

that second-guessed the safety judgments of the

Arizona legislature.

207

2. Bibb v. Navajo Freight Lines (1959)

Decided in 1959, Bibb v. Navajo Freight Lines, Inc.

208

involved a

challenge to an Illinois regulation requiring trucks to have curved

weighed by the interest of the nation in an adequate, economical and efficient railway transpor-

tation service, which must prevail”).

202

Id. at 779.

203

Id. at 776.

204

See, e.g., id. at 778 (comparing Arizona’s accident record after it regulated train lengths

to that of other states without regulation). Id. at 779 (contrasting other measures, such as head-

light, caboose, and full-crew requirements, where the safety gains justified the burden on inter-

state commerce).

205

Id. at 781 (“[W]hen a state goes beyond safety measures which are permissible because

only local in their effect upon interstate commerce, . . . the State will encounter the principle that

such requirements, if imposed at all, must be [imposed] through the action of Congress which

can establish a uniform rule.”). By contrast, in other cases in which the Supreme Court deemed

train safety measures to be less burdensome, the Court permitted them. See id. at 782 (referenc-

ing prior cases in which the Court upheld train regulations requiring full crews, headlights, and

more).

206

Id. at 788 (Black, J., dissenting).

207

Id. at 786 (noting also that Congress had considered imposing the same length limits

that the Court now declared to confer inadequate safety benefits). Justice Douglas likewise dis-

sented, on the grounds that “courts should intervene only where the state legislation discrimi-

nated against interstate commerce.” Id. at 795 (Douglas, J., dissenting).

208

359 U.S. 520 (1959). The Court’s interventionist opinion in Bibb was drafted by Justice

\\jciprod01\productn\G\GWN\91-1\GWN101.txt unknown Seq: 40 24-FEB-23 14:13

40 THE GEORGE WASHINGTON LAW REVIEW [Vol. 91:1

mudflaps at a time when all other states either permitted or required

straight mudflaps.

209

The Supreme Court focused on the regulatory

mismatch, identifying “the question [as] whether one State could pre-

scribe standards for interstate carriers that would conflict with the

standards of another State.”

210

As in Southern Pacific, the Bibb Court

took those other states’ regulations as the benchmark in measuring

the burden imposed by Illinois’s different rule. As a result, it attrib-

uted exclusively to Illinois the costs truckers incurred to stop at the

border to weld on new mudflaps, even though those costs arose from

regulatory diversity traceable to at least two states.

211

The Supreme

Court weighed this burden against Illinois’s proffered safety interest,

but, citing findings by the district court, the Court held that the pur-

ported safety advantages of curved over straight mudflaps were insuf-

ficient to overcome the “need for national uniformity in the

regulations for interstate travel.”

212

The Bibb Court, like the Southern

Pacific Court, thus weighed contingent interests on both sides of the

balance scale; it calculated the burden imposed by the Illinois regula-

tion against a baseline of other states’ regulations, and it weighed Illi-

nois’s safety interest against a baseline of other states’ safety

measures.

213

3. Kassel v. Consolidated Freightways Corp. of

Delaware (1981)

In Kassel v. Consolidated Freightways Corp. of Delaware,

214

Iowa

limited trucks on its highways to fifty-five or sixty feet in length, de-

pending on the type of truck.

215

The rule faced a dormant Commerce

Clause challenge because it was “out of step”

216

with those of many

other states, which permitted sixty-five-foot trucks on their highways.

In evaluating the challenge to the mismatched rule, the Supreme

Court used external benchmarks. For example, in determining that the

Douglas, who fourteen years earlier dissented in Southern Pacific, arguing that the Court should

not have intervened because the Arizona law was not discriminatory. Id. at 521.

209

Id. at 521–23.

210

Id. at 526.

211

Id. at 524–25, 527.

212

Id. at 527 (quoting Morgan v. Virginia, 328 U.S. 373, 386 (1946)); id. at 530.

213

The state relied on Barnwell to argue that “a federal court is precluded from weighing

the relative merits of the contour mudguard against any other kind of mudguard.” Id. at 528. In

rejecting this argument, the Supreme Court referred to the “equal footing” of the states, whose

statutes “are of equal dignity when measured against the Commerce Clause.” Id. at 529.

214

450 U.S. 662 (1981).

215

Id. at 665–66. Each limit applied to a different kind of truck. Id.

216

Id. at 671.

\\jciprod01\productn\G\GWN\91-1\GWN101.txt unknown Seq: 41 24-FEB-23 14:13

2023] BIBB BALANCING 41

burden on interstate commerce included the need to detour around

Iowa or switch to smaller trucks, the Supreme Court implicitly used

other states’ preexisting regulations as a baseline.

217

The Court thus

regarded Iowa alone as causing interstate truckers to incur switching

and detour costs.

218

Iowa defended its rule on safety grounds, but in

weighing the state’s safety concerns, the Court again conducted a rela-

tive, not absolute, inquiry. Specifically, the Court used other states’

regulations as a benchmark by comparing the safety of Iowa’s rule to

the safety of other states’ rules.

219

Citing the trial court’s findings, the

Court concluded that the comparative safety benefit from Iowa’s

shorter length limits was “illusory.”

220

Moreover, the Court found that

because the regulation would “bear[] disproportionately on out-of-

state residents and businesses,” it was not due the typical deference

shown by courts to safety regulations.

221

In striking down the regula-

tion, the Court also noted that exceptions to Iowa’s truck length limits

were “helpful to local interests,” while burdening out-of-state inter-

ests, which raised suspicion that Iowa’s regulation “may not have been

designed to ban dangerous trucks, but rather to discourage interstate

truck traffic.”

222

Indeed, two concurring justices found the regulation

protectionist. By contrast, citing Barnwell, three dissenters invoked

the noninterventionist approach. They concluded that a court’s role in

dormant Commerce Clause cases was limited to determining whether

the challenged regulation, “although rational, is merely a pretext for

discrimination against interstate commerce.”

223

4. Minnesota v. Clover Leaf Creamery Co. (1981)

In 1981 in Minnesota v. Clover Leaf Creamery Co.,

224

Minnesota

banned the sale of milk in plastic containers because use of such con-

tainers “presents a solid waste management problem for the state,

promotes energy waste, and depletes natural resources.”

225

On an evi-

dentiary record it described as mixed, the trial court held that Minne-

sota adopted the regulation to advantage the Minnesota pulp wood

217

See id. at 671, 674.

218

See id. at 667, 671.

219

Id. at 671; id. at 673 (citing studies and testimony comparing safety of fifty-five-foot to

sixty-five-foot trucks).

220

Id. at 671.

221

Id. at 676–77.

222

Id. Iowa exempted from the regulation individuals and businesses in important border

cities, which covered Iowa’s ten largest cities. Id. at 676.

223

Id. at 692 (Rehnquist, J., dissenting).

224

449 U.S. 456 (1981).

225

Id. at 457 (quoting M

INN

. S

TAT

. § 116F.21 (1978) (repealed 1981)).

\\jciprod01\productn\G\GWN\91-1\GWN101.txt unknown Seq: 42 24-FEB-23 14:13

42 THE GEORGE WASHINGTON LAW REVIEW [Vol. 91:1

industry, which made materials used in paper milk cartons.

226

The

Minnesota Supreme Court, by contrast, found that although Minne-

sota passed the regulation for the legitimate purpose of “encouraging

[] reuse and recycling of materials and reducing the amount and type

of material entering the solid waste stream,” the regulation was not

rationally related to achieving that purpose, and therefore the court

struck the regulation under the Equal Protection Clause without

reaching the dormant Commerce Clause.

227

The Supreme Court reversed. On the equal protection claim, the

Supreme Court concluded that the plastic container ban was rationally

related to Minnesota’s environmental goals.

228

The Supreme Court

then turned to the dormant Commerce Clause and concluded, citing

Pike, that “[e]ven granting that the out-of-state plastics industry is

burdened relatively more heavily than the Minnesota pulpwood in-

dustry, we find that this burden is not ‘clearly excessive’ in light of the

substantial state interest in promoting conservation of energy and

other natural resources and easing solid waste disposal problems.”

229

Interestingly, although the Supreme Court used external benchmark-

ing to determine the burden of Minnesota’s rule—it compared Minne-

sota’s plastic-container ban to other states’ laws permitting plastic—it

did not benchmark Minnesota’s environmental goals against the regu-

lations of any other states. This choice may have been motivated by

the difference in purposes animating Minnesota’s plastic ban as com-

pared to other states’ packaging rules, which did not serve environ-

mental goals. Ultimately, the Supreme Court held that the regulation

was “nondiscriminatory” and that its burden on interstate commerce

was small relative to Minnesota’s interest in protecting the environ-

ment by banning plastic jugs.

230

Although he agreed that the statute survived equal protection

challenge, Justice Powell dissented from the dormant Commerce

Clause decision in Clover Leaf. He would have remanded the case to

226

Id. at 460.

227

Clover Leaf Creamery Co. v. State, 289 N.W.2d 79, 82 (Minn. 1979), rev’d, 449 U.S. 456

(1981); see also Clover Leaf, 449 U.S. at 463–64 (noting that the challengers had “produced

impressive supporting evidence at trial to prove that the probable consequences of the ban on

plastic nonreturnable milk containers will be to deplete natural resources, exacerbate solid waste

disposal problems, and waste energy, because consumers unable to purchase milk in plastic con-

tainers will turn to paperboard milk cartons, allegedly a more environmentally harmful

product”).

228

Clover Leaf, 449 U.S. at 459, 466.

229

Id. at 473; see also Pike v. Bruce Church, Inc., 397 U.S. 137, 142 (1970) (articulating

“clearly excessive” standard for burdens on interstate commerce).

230

Clover Leaf, 449 U.S. at 472–74.

\\jciprod01\productn\G\GWN\91-1\GWN101.txt unknown Seq: 43 24-FEB-23 14:13

2023] BIBB BALANCING 43

determine whether, as the trial court had found, the regulation was

enacted with protectionist intent.

231

Also dissenting, Justice Stevens

would have deferred to the factual findings of the lower courts, and

therefore he concluded that the “the essential predicate for the major-

ity’s conclusion that the ‘local benefits [are] ample to support Minne-

sota’s decision under the Commerce Clause,’ is absent.”

232

2. Understanding Mismatch Cases

Recognizing the differences between single-state and mismatch

cases does not enable us to explain the different outcomes across the

mismatch cases in a satisfying way. In three out of four of the inter-

state transportation cases this Article discussed—all but Barnwell—

the Court balanced, which led it to preclude outlier interstate trans-

portation rules regarding train lengths, mudflaps, and truck lengths. In

Barnwell, however, the Court upheld state regulations involving truck

weight and widths without balancing their adverse effects on interstate

commerce against the challenged states’ interests in enacting the regu-

lations. Outcomes in the product-standards cases were also mixed. In

Hunt, the Court held that the asymmetric burden on interstate com-

merce outweighed the state’s proffered consumer-protection interest;

the Hunt Court did not take seriously the consumer-protection justifi-

cation for North Carolina’s apple labeling rule, in part due to evidence

that protectionism motivated the rule. Unsure of how to balance in

Florida Lime, the Court remanded for a clearer determination of the

state’s interest in the avocado fat-content rule, and specifically,

whether the state adopted the rule for protectionist purposes. In con-

trast, where the Court, as with the plastic-container ban in Clover

Leaf, was convinced of the state’s legitimate interests, it upheld devi-

ating regulations notwithstanding their asymmetric burdens. In Moor-

man, the Court once again returned to the strong noninterventionist

view it had expressed forty years earlier in Barnwell that it had no

power to force a state to conform to the rules—here, the tax-appor-

tionment rules—of other states.

Although separating out the mismatch cases from single-state

cases does not enable us to explain the different outcomes across the

mismatch cases in a satisfying way, it does enable us to draw several

231

Id. at 476–77 (Powell, J., concurring in part and dissenting in part) (“[T]his Court has no

basis for inferring a rejection of the quite specific factfindings by the trial court,” which included

the trial court’s specific finding that the actual purpose of the regulation was to advantage the in-

state pulpwood industry at the expense of nonresident commercial interests).

232

Id. at 488 (Stevens, J., dissenting) (citation omitted) (quoting majority opinion).

\\jciprod01\productn\G\GWN\91-1\GWN101.txt unknown Seq: 44 24-FEB-23 14:13

44 THE GEORGE WASHINGTON LAW REVIEW [Vol. 91:1

clarifying conclusions. First, as with single-state cases, if protectionist

legislative intent is evident in a mismatch case, then that intent, cou-

pled with protectionist effect, is usually dispositive, notwithstanding

the facial neutrality of the rule.

233

This explains the ultimate preclu-

sion by a California district court of the statute considered in Florida

Lime. Arguably, the presence of protectionist intent also explains the

result in Hunt. And even in cases like Kassel and Clover Leaf, where

the Court went on to balance, some justices, having concluded that

there was intentional protectionism, would have precluded the chal-

lenged regulation on that basis alone.

234

Second, sometimes the Court

intervenes to prevent mismatches, but other times, it does not. De-

pending upon your perspective, nonintervention in mismatch cases re-

flects judicial modesty or judicial abdication. This Article will have

more to say on this topic later.

235

Third, when it does balance in mis-

match cases, to measure the extent of a mismatch burden, the Court

has no choice but to look to the actual substantive laws applicable in

other states. Mismatch burdens are by definition measured against

other states’ actual laws (or lack thereof) because the nature of a mis-

match burden is that it arises from regulatory diversity.

III. T

PECIAL

ROBLEMS OF

IBB

ALANCING

To highlight the differences between dormant Commerce Clause

balancing in single-state cases and mismatch cases, we have used

“Pike balancing” to refer only to balancing in single-state cases and

“Bibb balancing” to refer to balancing in mismatch cases. Several crit-

ical insights emerge from our distinction between Pike and Bibb bal-

ancing. Specifically, single-state and mismatch cases are different and

therefore should be—and are—treated differently by the Supreme

Court. This Part explains how our new doctrinal gloss bears on old

criticisms of dormant Commerce Clause analysis, namely that it is ar-

bitrary and invites “judicial legislation.” To that end, this Part criti-

cally compares single-state and mismatch cases from four

perspectives: (1) the initial decision whether or not the Court should

intervene, (2) the selection of benchmarks against which to evaluate

the burden on interstate commerce, (3) the tendency of preclusion in

233

This is the same reason that we did not find any mismatch cases that involved facial

discrimination. If a case involved facial discrimination, it usually would be summarily precluded,

and so the Court would not engage in fulsome balancing.

234

See Kassel v. Consol. Freightways Corp., 450 U.S. 662, 685 (1981) (Brennan, J., concur-

ring); Clover Leaf, 449 U.S. at 475–76 (Powell, J., concurring).

235

See infra Section III.A.

\\jciprod01\productn\G\GWN\91-1\GWN101.txt unknown Seq: 45 24-FEB-23 14:13

2023] BIBB BALANCING 45

each type of case to result in judicial legislation, and (4) the number

and complexity of interests that the Court must balance in each type

of case. The goal of this Part is to acknowledge that, although both

single-state and mismatch cases are open to criticism, the criticisms

differ in each type of case. Most importantly, in several respects, mis-

match cases are subject to additional and more significant criticisms

than are single-state cases.

A. Judicial Intervention or Nonintervention

There appears to be broad—albeit not universal

236

—agreement

that courts are entitled to intervene in single-state cases. This Section

explains, however, that no such consensus exists regarding judicial in-

tervention in mismatch cases. As a result, the approach to mismatches

is unsettled, providing little guidance to lower courts as to how to re-

solve cases and little guidance to states regarding how to formulate

their laws to survive dormant Commerce Clause review.

1. Relative Consensus in Single-State Cases

Compared to mismatch cases, there seems to be much less con-

troversy surrounding judicial intervention in single-state cases. First,

intervention in facial discrimination cases has deep support.

237

Indeed,

as a judge on the Tenth Circuit, now-Justice Gorsuch wrote “to the

extent that there’s anything that’s uncontroversial about dormant

commerce clause jurisprudence it may be this anti-discrimination prin-

ciple, for even critics of dormant commerce clause doctrine often en-

dorse it even as they suggest it might find a more textually

comfortable home in other constitutional provisions.”

238

Similarly,

with respect to facially neutral single-state regulations, justices gener-

236

For example, Justice Thomas rejects the dormant Commerce Clause altogether, includ-

ing in cases of facial discrimination. See supra note 18. Because he rejects the dormant Com- R

merce Clause in its entirety, we cannot know whether Justice Thomas regards single-state cases

differently from mismatch cases. In Justice Thomas’s view, the Court acts improperly when con-

sidering either type of case under the dormant Commerce Clause.

237

For discussion of the current Supreme Court justices’ views on discrimination doctrine,

see supra note 51. R

238

See, e.g., Direct Mktg. Ass’n v. Brohl, 814 F.3d 1129, 1150 (10th Cir. 2016) (Gorsuch, J.,

concurring). Supreme Court justices use the terms “discrimination” and “protectionism” inter-

changeably. For discussion of this, see supra Section II.A. Justice Thomas is the most consistent

dissenter from the view described by Justice Gorsuch. United Haulers Ass’n, Inc. v. Oneida-

Herkimer Solid Waste Mgmt. Auth., 550 U.S. 330, 352 (2007) (Thomas, J., concurring in the

judgment) (referring to “the erroneous assumption that the Court must choose between eco-

nomic protectionism and the free market. But the Constitution vests that fundamentally legisla-

tive choice in Congress.”).

\\jciprod01\productn\G\GWN\91-1\GWN101.txt unknown Seq: 46 24-FEB-23 14:13

46 THE GEORGE WASHINGTON LAW REVIEW [Vol. 91:1

ally seem to regard intervention as appropriate, and justices decide

those cases from a steady normative perspective, one that promotes

free trade.

239

Consistent with the notion that the dormant Commerce

Clause promotes free trade, analysis in cases involving facially neutral

single-state regulation often reads as an attempt to “smoke out”

protectionism.

240

2. Unsettled Approach to Mismatch Cases

Although justices generally agree that “discriminatory” mis-

matches—mismatches that a state enacted to deliberately exclude or

disadvantage interstate commerce compared to in-state commerce—

should be struck down, no similar general agreement exists about

other mismatch cases.

241

Specifically, justices disagree about whether

the dormant Commerce Clause limits regulatory diversity when that

diversity seems to be motivated by a legitimate state interest, rather

than protectionism.

a. Noninterventionist View

Under the noninterventionist view, mismatches that do not in-

volve intentional protectionism are subject to merely rational-basis re-

view.

242

For noninterventionists, regulatory diversity is either

normatively desirable—because, for instance, it promotes government

efficiency, responsiveness, experimentation, and ultimately lib-

erty

243

—or it is an inevitable concomitant of state autonomy that

courts have no authority to curtail.

244

As such, regulatory mismatches

239

See Regan, supra note 16, at 1097, 1269 (arguing that the Court is singularly focused on R

suppressing protectionist legislation, and highlighting that, although the suppression of protec-

tionist legislation aids free trade, such suppression is not the same as supporting laissez-faire or

free markets).

240

Id. (focusing on what Regan called free-movement-of-goods cases).

241

See, e.g., Hunt v. Wash. State Apple Advert. Comm’n, 432 U.S. 333, 352–53 (1977)

(writing, of a facially neutral statute, that it had the “effect of an embargo” and therefore consti-

tuted “discrimination against commerce”).

242

See supra note 174. R

243

Cf. Gregory v. Ashcroft, 501 U.S. 452, 458 (1991) (claiming that federalism “assures a

decentralized government that will be more sensitive to the diverse needs of a heterogenous

society; it increases opportunity for citizen involvement in democratic processes; it allows for

more innovation and experimentation in government; and it makes government more responsive

by putting the States in competition for a mobile citizenry”).

244

Eule, supra note 9, at 442, 445 (arguing that “judicial invalidation of evenhanded state R

commercial legislation through the current weighing process is inconsistent with our constitu-

tional system of representative democracy,” and the “rejection of unfettered trade as an appro-

priate goal of judicial scrutiny of local legislative efforts” would allow for salutary state

experimentation); Regan, supra note 16, at 1187 (“The existence of [regulatory] diversity can R

\\jciprod01\productn\G\GWN\91-1\GWN101.txt unknown Seq: 47 24-FEB-23 14:13

2023] BIBB BALANCING 47

are a permanent feature of federalism. To illustrate the noninterven-

tionist view, this Section considers Barnwell and Moorman, cases in

which the noninterventionist view prevailed, as well as noninterven-

tionist dissents in Southern Pacific and Kassel.

In 1938, the Barnwell Court unanimously held that the burden

arising from mismatched truck width and weight rules “is one which

the Constitution permits because it is an inseparable incident of the

exercise of a legislative authority, which, under the Constitution, has

been left to the states.”

245

Even when they acknowledge that mis-

matches significantly burden interstate commerce,

246

justices holding

the noninterventionist view conclude that the Constitution provides

no authority for courts to eliminate mismatches. The Barnwell Court

expressed this view in typical fashion when it observed that “courts

are not any the more entitled, because interstate commerce is af-

fected, to substitute their own for the legislative judgment.”

247

Rather,

because the “[State] legislature, being free to exercise its own judg-

ment, is not bound by that of other legislatures,”

248

even the fact that

“all [other] states had adopted a single standard” cannot force an out-

lier state to conform to that standard.

249

If regulatory diversity be-

comes too burdensome, the noninterventionist view holds that the

states could take it upon themselves to harmonize their rules, or Con-

gress could enact nationwide rules.

250

In 1978 in Moorman, a six-justice majority held that the Supreme

Court could not force a state to use the same tax-allocation rule as

other states, even if leaving the deviating state’s rule in place would

lead to double taxation, which was presumed to burden interstate

commerce. The Moorman Court emphasized that because mismatches

arise from differences between different states’ rules, no one state

hardly be thought to create a constitutional problem. As I have argued previously, uniformity of

commercial regulation is not a constitutional value.”).

245

S.C. State Highway Dep’t v. Barnwell Bros., Inc., 303 U.S. 177, 189 (1938).

246

Id. at 183 (reciting lower court finding that the challenged regulations “would seriously

impede motor truck traffic passing to and through the state”); Moorman Mfg. Co. v. Bair, 437

U.S. 267, 277 (1978) (acknowledging risk of burdens due to tax “duplication”).

247

Barnwell, 303 U.S. at 191.

248

Id. at 195.

249

Id. at 196.

250

Id. at 189–90 (“Congress . . . may determine whether the burdens . . . are too great, and

may, by legislation designed to secure uniformity . . . curtail . . . the states’ regulatory power.”);

Moorman, 437 U.S. at 280 (“It is to [Congress], and not this Court, that the Constitution has

committed such policy decisions.”); id. at 279 (noting that any uniform rule “would require a

policy decision based on political and economic considerations that vary from State to State”).

\\jciprod01\productn\G\GWN\91-1\GWN101.txt unknown Seq: 48 24-FEB-23 14:13

48 THE GEORGE WASHINGTON LAW REVIEW [Vol. 91:1

could be held responsible for them “in a constitutional sense.”

251

Moreover, the Moorman Court observed that harmonizing state rules

was a legislative, not a judicial, function.

252

Dissenting in Southern Pacific, Justice Black likewise argued that

courts had no authority to second-guess the state legislature regarding

nondiscriminatory commercial regulations—particularly when the

challenged regulation was designed to promote public safety.

253

In Jus-

tice Black’s view, if interstate commerce truly required uniform regu-

lation of train lengths, then Congress had the power to affirmatively

establish such uniform rules. Until then, the Supreme Court could not

“den[y] to the state . . . power to protect life and property within its

borders.”

254

Moreover, Justice Black argued that the correct inference

to draw from congressional inaction in the area was that Congress

chose to leave the regulatory decision to the states.

255

Likewise, in his

view, the Supreme Court should “leave that choice to the elected leg-

islative representatives of the people themselves, where it properly

belongs both on democratic principles and the requirements of effi-

cient government.”

256

Dissenting for himself and two others in Kassel, Justice Rehnquist

concluded that “a court is not called upon, as are state legislatures, to

determine what, in its judgment, is the most suitable restriction to be

applied of those that are possible, or to choose that one which in its

opinion is best adapted to all the diverse interests affected.”

257

Rehnquist’s view, by striking down Iowa’s truck-length limits, the ma-

jority “oversteps our ‘limited authority to review state legislation

251

Moorman, 437 U.S. at 277 (holding that the challenged state (Iowa) was no more at

fault for the mismatch than was Illinois, the challenger’s home state).

252

Id. at 280; id. at 279 (noting that the only way to prevent burdens arising from mis-

matches in apportionment formulas would be to “require national uniform rules. . . . The Consti-

tution, however, is neutral with respect to the content of any uniform rule.”); Barnwell, 303 U.S.

at 189–90 (“Congress . . . may determine whether the burdens imposed on [interstate commerce]

by state regulation, otherwise permissible, are too great, and may, by legislation designed to

secure uniformity or in other respects to protect the national interest in the commerce, curtail to

some extent the state’s regulatory power. But that is a legislative, not a judicial, function . . . .”).

253

S. Pac. Co. v. Ariz. ex rel. Sullivan, 325 U.S. 761, 789 (1945) (Black, J., dissenting).

254

Id. at 791.

255

Id. at 792 (“[T]o leave the state free in this field was a deliberate choice, which was

taken with a full knowledge of the complexities of the problems and the probable need for

diverse regulations in different localities.”).

256

Id. at 789; see also Eule, supra note 9, at 442 n.89 (“If democracy means anything, it is R

that the choice between competing substantive political values must be made by representatives

of the people rather than by unelected judges.”).

257

Kassel v. Consol. Freightways Corp., 450 U.S. 662, 691 (1981) (Rehnquist, J., dissenting)

(quoting Barnwell, 303 U.S. at 190).

\\jciprod01\productn\G\GWN\91-1\GWN101.txt unknown Seq: 49 24-FEB-23 14:13

2023] BIBB BALANCING 49

under the commerce clause’ and seriously intrudes upon the funda-

mental right of the States to pass laws to secure the safety of their

citizens.”

258

He emphasized that “[t]he Commerce Clause is, after all,

a grant of authority to Congress, not to the courts.”

259

In addition, noninterventionists underscore other problems with

what we call Bibb balancing—including the problem of choosing a

benchmark and the phenomenon that intervention in such cases typi-

cally involves choosing one state’s law over another. Sections III.B

and III.C below discuss both of these issues. For all of these reasons,

the noninterventionists would sustain state regulatory mismatches re-

gardless of the magnitude of the burden they impose on interstate

commerce, unless it was clear that a state devised a mismatch for pro-

tectionist purposes.

260

b. Interventionist View

The interventionist view, by contrast, draws normative support

from implicit and explicit limits the Constitution places on state power

in the name of preserving the union. Justice Cardozo captured these

themes in his frequently repeated line from Baldwin v. G. A. F. Seelig,

Inc.

261

that “[t]he Constitution was framed . . . upon the theory that

the peoples of the several states must sink or swim together, and that

in the long run prosperity and salvation are in union and not divi-

sion.”

262

This Cardozo quotation suggests that, more than merely

preventing protectionism, a goal of our constitutional order is to ac-

tively forge the states into a federal union with a single national mar-

ket, including by eliminating even non-tariff barriers to a free

interstate market.

263

258

Id. at 687 (citation omitted) (quoting Locomotive Firemen v. Chi., Rock Island & Pac.

R.R. Co., 393 U.S. 129, 136 (1968)).

259

Id. at 690.

260

For example, although Justice Rehnquist strongly backed the noninterventionist view in

Kassel, he observed that intervention would be appropriate if the mismatch were a mere “pre-

text for discrimination against interstate commerce.” Id. at 692 (Rehnquist, J., dissenting).

261

294 U.S. 511 (1935). In Baldwin, the Court precluded a New York regulation that re-

quired out-of-state milk sold into the state to have been purchased at not less than the New York

statutory minimum price for milk. Id. at 528.

262

Id. at 523; see also Am. Trucking Ass’ns, Inc. v. Mich. Pub. Serv. Comm’n, 545 U.S. 429,

433 (2005); W. Lynn Creamery, Inc. v. Healy, 512 U.S. 186, 206 (1994); Healy v. Beer Inst., 491

U.S. 324, 336 n.12 (1989); H. P. Hood & Sons, Inc. v. Du Mond, 336 U.S. 525, 532 (1949); Kassel,

450 U.S. 662 at 687 (Brennan, J., concurring); Exxon Corp. v. Governor of Md., 437 U.S. 117,

152 (1978) (Blackmun, J., concurring in part, dissenting in part).

263

See Daniel Halberstam, Of Power and Responsibility: The Political Morality of Federal

Systems, 90 V

. L. R

. 731, 809–811 (2004). For more on the implications of structural federal-

ism for state obligations under the dormant Commerce Clause, see generally Erin F. Delaney &

\\jciprod01\productn\G\GWN\91-1\GWN101.txt unknown Seq: 50 24-FEB-23 14:13

50 THE GEORGE WASHINGTON LAW REVIEW [Vol. 91:1

Justices propounding the interventionist view have concluded

that taking the federalism limits on state power seriously requires pre-

clusion of mismatched regulations that—while not intentionally pro-

tectionist—nevertheless unduly burden interstate commerce.

Interventionist justices emphasize the perils of “economic Balkaniza-

tion,”

264

which refers to segmentation of the national marketplace into

smaller markets delineated by state boundaries. Interventionists also

emphasize the impropriety of leaving it to state legislatures to take

adequate account of national and federal interests when enacting leg-

islation. For instance, the Court in Southern Pacific wrote:

For a hundred years it has been accepted constitutional doc-

trine that the commerce clause, without the aid of Congres-

sional legislation, thus affords some protection from state

legislation inimical to the national commerce, and that in

such cases, where Congress has not acted, this Court, and not

the state legislature, is under the commerce clause the final

arbiter of the competing demands of state and national

interests.

265

Jurists taking the interventionist view would not preclude all mis-

matches, no matter how slight their effects on interstate commerce

nor how compelling their justifications.

266

But interventionists do not

see the dormant Commerce Clause as limited to protecting the na-

tional marketplace from only intentionally protectionist mismatches.

Ruth Mason, Solidarity Federalism, 98 N

OTRE

AME

L. R

. 617 (2022); Allan Erbsen, Hori-

zontal Federalism, 93 M

INN

. L. R

. 493 (2008).

264

See, e.g., South Dakota v. Wayfair, Inc., 138 S. Ct. 2080, 2089 (2018).

265

S. Pac. Co. v. Ariz. ex rel. Sullivan, 325 U.S. 761, 769 (1945) (citations omitted). Justice

Kennedy, writing for the majority in 2018 in Wayfair, used almost the same language: “Of

course, when Congress exercises its power to regulate commerce by enacting legislation, the

legislation controls. But this Court has observed that ‘in general Congress has left it to the courts

to formulate the rules’ to preserve ‘the free flow of interstate commerce.’” Wayfair, 138 S. Ct. at

2089–90 (quoting Southern Pacific, 325 U.S. at 769).

266

For example, the Southern Pacific Court also contrasted its decision to preclude the

challenged train-length rule with its holdings in other train-safety cases in which it upheld the

challenged laws, either because the burden was lower than in Southern Pacific, the safety interest

more compelling, or both. Upheld safety regulations, governed, for example, full crews, head-

lights, heated cabins, and the like. Southern Pacific, 325 U.S. at 782 (“While the full train crew

laws undoubtedly placed an added financial burden on the railroads in order to serve a local

interest, they did not obstruct interstate transportation or seriously impede it. They had no ef-

fects outside the state beyond those of picking up and setting down the extra employees at the

state boundaries; they involved no wasted use of facilities or serious impairment of transporta-

tion efficiency, which are among the factors of controlling weight here. In sustaining those laws

the Court considered the restriction a minimal burden on the commerce comparable to the law

requiring the licensing of engineers as a safeguard against those of reckless and intemperate

habits . . . .”).

\\jciprod01\productn\G\GWN\91-1\GWN101.txt unknown Seq: 51 24-FEB-23 14:13

2023] BIBB BALANCING 51

Instead, as the Southern Pacific Court put it, when Congress has not

acted, the Supreme Court must act as “the final arbiter of the compet-

ing demands of state and national interests.”

267

The Southern Pacific

Court also observed that “in general Congress has left it to the courts

to formulate the rules thus interpreting the commerce clause in its

application, doubtless because it has appreciated the destructive con-

sequences to the commerce of the nation if [the courts’] protection

were withdrawn.”

268

And three dissenters in Moorman perceived it as

the Court’s “duty . . . ‘to make the delicate adjustment between the

national interest in free and open trade and the legitimate interest of

the individual States.’”

269

A majority of the modern Supreme Court

endorsed the interventionist view taken in Southern Pacific as recently

as 2018, noting that “‘in general Congress has left it to the courts to

formulate the rules’ to preserve ‘the free flow of interstate

commerce.’”

270

The interventionist and noninterventionist camps thus diverge

based on their answer to the following question: in the absence of con-

gressional action, should courts intervene in mismatch cases? Nonin-

terventionists see congressional inaction as an implicit grant of

regulatory power to the states, which the courts should not obstruct.

But interventionists view congressional inaction as an implicit charter

for the courts to carefully review state actions that adversely impact

interstate commerce.

3. Comparing Intervention in Single-State and Mismatch Cases

That strong normative arguments support both the intervention-

ist and noninterventionist approaches may help explain why the Su-

preme Court has not steadily committed to one approach over the

other in mismatch cases. Indeed, in the mismatch cases described

above, individual justices were not even consistent in following either

an interventionist or noninterventionist approach. Specifically, more

than half of the justices in the mismatch cases considered above signed

267

Id. at 769.

268

Id. at 770; see also Kassel v. Consol. Freightways Corp., 450 U.S. 662, 671 (1981) (“In

the absence of congressional action to set uniform standards,” the Court will not tolerate state

regulations for which the “safety interest has been found to be illusory” and that “impair signifi-

cantly the federal interest in efficient and safe interstate transportation.”).

269

Moorman Mfg. Co. v. Bair, 437 U.S. 267, 283 (1978) (Powell, J., dissenting) (quoting

Bos. Stock Exch. v. State Tax Comm’n, 429 U.S. 318, 329 (1977)).

270

Wayfair, 138 S. Ct. 2080, 2090 (2018) (quoting Southern Pacific, 325 U.S. at 770).

\\jciprod01\productn\G\GWN\91-1\GWN101.txt unknown Seq: 52 24-FEB-23 14:13

52 THE GEORGE WASHINGTON LAW REVIEW [Vol. 91:1

on to both decisions intervening and those not intervening.

271

There is

no obvious partisan valence to the voting patterns in the mismatch

cases described above; both views have been endorsed by justices ap-

pointed by Democrats and by Republicans.

272

Spread out over forty

years, those cases reveal that individual members of the Court do not

seem to regard the doctrinal approach in mismatch cases as a matter

of stare decisis or settled law. This allows the Court—and even indi-

vidual justices—to move back and forth between interventionist and

noninterventionist approaches to mismatches.

In contrast, there seems to be much less normative disputation

surrounding single-state cases, even though, for reasons we discuss

presently, the outcome of single-state cases may not be easy to pre-

dict. Other than Justice Thomas, who rejects the dormant Commerce

Clause outright, justices generally have accepted both that judicial in-

tervention in single-state cases is appropriate and that the goal of such

intervention is to prevent states from inhibiting free trade by enacting

protectionist regulations. Hence the Court’s focus in single-state cases

on protectionist intent. A finding of protectionist intent, which the

Court may feel comfortable ascribing to a state when the immediate

effect of its regulation is to protect in-state economic actors from out-

of-state competitors, enables the Court to resolve a single-state case

easily under Pike balancing. Because protectionism is not a valid state

interest, it supplies no counterweight to offset the challenged regula-

tion’s impact on interstate commerce, and so the Court can easily pre-

clude the regulation. On the other hand, the absence of such

immediately obvious protectionist intent forces the Court to engage in

more robust Pike balancing. And because the justices’ views may dif-

fer on how to evaluate the relevant considerations in the balance—

including how much the challenged regulation burdens interstate com-

merce, whether and to what extent the regulation benefits the enact-

ing state, and whether that benefit could be achieved with lesser

impact on interstate commerce—the outcome of this more robust

Pike balancing in single-state cases can be difficult to predict.

273

This is

the difficulty the late Justice Scalia identified when he wrote in his

Bendix concurrence that Pike balancing involved weighing “incom-

271

The seven cases, in chronological order, were: Barnwell, Southern Pacific, Bibb, Hunt,

Moorman, Clover Leaf, and Kassel.

272

See infra Table.

273

Adding to the uncertainty, before they get to balancing, justices may disagree over

whether the state had protectionist intent (which would trigger analysis akin to strict scrutiny) or

whether the state had no such protectionist intent (which would trigger less searching review).

\\jciprod01\productn\G\GWN\91-1\GWN101.txt unknown Seq: 53 24-FEB-23 14:13

2023] BIBB BALANCING 53

mensurables” against each other.

274

This criticism led Justice Scalia to

urge the Court to abandon Pike balancing altogether as inappropriate

for courts, as opposed to the legislature.

275

Justice Thomas shares this

view, but would go further. Whereas Justice Scalia agreed that courts

should preclude discriminatory state regulations, Justice Thomas en-

tirely rejects the dormant Commerce Clause at all. Despite the views

of these two justices, and notwithstanding that the outcome in a Pike

balancing case can be difficult to predict, there otherwise appears to

be little disagreement about whether the Supreme Court is entitled to

consider single-state cases, whether balancing is the right approach to

those cases, and whether the normative goal in such analysis is main-

taining and promoting a national market.

276

Appreciating the differences between single-state and mismatch

cases allows us to conclude that the most biting scholarly criticisms of

dormant Commerce Clause doctrine—that it is arbitrary and that its

rationale is unstated or variable—apply with more force to mismatch

than single-state cases.

277

The normative grounding of single-state

cases has been consistent over time—the dormant Commerce Clause

prevents states from interfering with free trade because such interfer-

ence undermines the national market, erodes interstate unity, and in-

spires retaliation. Differences in outcomes and inability to predict

outcomes reflect disagreement over how to apply the law to the facts

of the particular case. Such differences generally do not reflect funda-

mental disagreement about whether courts are entitled to intervene in

single-state cases.

In contrast, justices disagree over whether mismatch cases war-

rant judicial review at all. The clash between the interventionist and

noninterventionist approaches in mismatch cases generates at least

two problems. First, disagreement over how to resolve mismatch cases

can lead (and has led) to diametrically opposed decisions in cases with

similar facts. For example, the Barnwell Court, citing limits on its insti-

tutional authority, upheld South Carolina’s mismatch on truck widths

and weights,

278

whereas the Kassel Court, citing impediments to inter-

274

Bendix Autolite Corp. v. Midwesco Enters., Inc., 486 U.S. 888, 897 (1988) (Scalia, J.,

concurring).

275

Id. at 898.

276

As noted previously, Justice Gorsuch raised concerns about undue-burden analysis, but

we do not know whether, like Justice Thomas and the late Justice Scalia, he would eschew dor-

mant Commerce Clause balancing, and if so, whether he would disapply it in both single-state

and mismatch cases. See supra note 51.

277

See supra Section I.B.

278

See S.C. State Highway Dep’t v. Barnwell Bros., Inc., 303 U.S. 177, 189 (1938).

\\jciprod01\productn\G\GWN\91-1\GWN101.txt unknown Seq: 54 24-FEB-23 14:13

54 THE GEORGE WASHINGTON LAW REVIEW [Vol. 91:1

state commerce arising from regulatory diversity, precluded Iowa’s

mismatch on truck lengths.

279

Second, the failure to settle whether bal-

ancing is or is not appropriate in mismatch cases does a disservice to

both courts and state legislatures. State courts and inferior federal

courts are required to follow Supreme Court precedent, and state leg-

islatures are expected to enact constitutional laws. If the Supreme

Court cannot resolve such a basic and fundamental question as

whether intervention is appropriate in mismatch cases, how can infer-

ior courts and legislatures fulfill their obligations?

B. Benchmarking

At a high level of generality, the analysis in every dormant Com-

merce Clause case is the same, namely, the Court balances the burden

on interstate commerce against the state’s interest in the regulation.

280

But significant differences characterize balancing in single-state and

mismatch cases. This Section highlights that the Supreme Court uses

internal benchmarking in single-state cases, but external benchmark-

ing in mismatch cases. This Section also discusses special problems

raised by external benchmarking.

279

See Kassel v. Consol. Freightways Corp., 450 U.S. 662, 671 (1981); see also Raymond

Motor Transp., Inc. v. Rice, 434 U.S. 429, 445–46 (1978) (striking down a truck-length limit using

reasoning similar to that in Kassel).

280

The Court also sometimes, but not always, engages in narrow tailoring, although such

narrow tailoring is not a major focus of this Article. See generally Jud Mathews & Alec Stone

Sweet, All Things in Proportion? American Rights Review and the Problem of Balancing, 60

MORY

L.J. 797 (2011). “In constitutional systems across the globe, proportionality balancing

today constitutes the dominant, ‘best practice’ judicial standard for resolving disputes that in-

volve either a conflict between (a) two rights claims or (b) a rights provision and a legitimate

government interest.” Id. at 802. Proportionality analysis, which can be traced to German law

but has since spread widely, involves (1) suitability, or what Americans would call rational basis

review, (2) necessity, including a least-restrictive-means test, which is equivalent to what Ameri-

cans would call narrow tailoring, and lastly, (3) “balancing stricto sensu,” or proportionality in

which “the judge weighs, in light of the facts, the benefits of the act (already found to have been

narrowly tailored) against the costs incurred by infringement of the right, in order to decide

which side shall prevail.” Id. at 802–03.

As with single-state cases, the Court uses narrow tailoring in some mismatch cases. Thus,

the Hunt Court considered whether North Carolina could have fulfilled its interest in protecting

consumers from confusion in a less restrictive manner than by forbidding the display of other

states’ apple grades. Hunt v. Wash. State Apple Advert. Comm’n, 432 U.S. 333, 354 (1977) (sug-

gesting that North Carolina allow Washington growers to display the Washington and federal

grades). Likewise, when the California District Court examined the avocado fat-content rule

that had been challenged in Florida Lime, it considered whether California could achieve its goal

to assure that California consumers bought ripe avocados by less restrictive means, including by

using federal days-to-maturity and size standards. Fla. Lime & Avocado Growers, Inc. v. Paul,

197 F. Supp. 780, 787 (N.D. Cal. 1961).

\\jciprod01\productn\G\GWN\91-1\GWN101.txt unknown Seq: 55 24-FEB-23 14:13

2023] BIBB BALANCING 55

1. Single-State Cases

As in any dormant Commerce Clause case, in single-state cases,

the Supreme Court must determine the asymmetrical burden the chal-

lenged regulation imposes on interstate commerce. To do so, it em-

ploys what we call an “internal benchmark,” under which it compares

the impact of the challenged state’s rule on in-state commerce with

the impact of the same state’s rule on interstate commerce. For exam-

ple, in a case involving facially discriminatory rules, the Court com-

pares the state’s (worse) treatment of nonresidents or interstate

commerce with the same state’s (better) treatment of residents or in-

state commerce. The difference between the two constitutes the asym-

metrical burden on interstate commerce. There is thus no need in a

facial discrimination case for the Court to learn about or consider the

laws of any state other than the challenged state.

Likewise, the Court need not use external benchmarks in single-

state cases that involve facially neutral rules. For example, in Pike, the

Supreme Court compared Arizona’s interest in ensuring that the mar-

ket understood that the cantaloupes were grown in Arizona to the

burden on interstate commerce arising from the requirement to pack

cantaloupes in Arizona. One may agree or disagree with the Court’s

judgment in Pike that the burden on interstate commerce outweighed

the state’s interest, but the balancing exercise did not require the

Court to examine, or know, the law of any state other than Arizona to

determine either the burden on interstate commerce or the strength of

the state’s proffered interest in the challenged regulation. By contrast,

as the next Section discusses, balancing in mismatch cases requires the

Court to refer to external benchmarks consisting of other states’ ac-

tual laws.

2. Mismatch Cases

In contrast with dormant Commerce Clause balancing in single-

state cases, balancing in mismatch cases uses external benchmarks

consisting of other states’ actual laws. By definition, the asymmetrical

burden on interstate commerce in a mismatch case is conditional. It

arises due to differences between two or more states’ law. Thus, to

know what the mismatch consists of, the Supreme Court must ex-

amine the laws of another state or states. Consider Southern Pacific, in

which the Court expressly compared Arizona’s regulation to that of

other states, concluding that:

Enforcement of the law in Arizona, while train lengths re-

main unregulated or are regulated by varying standards in

\\jciprod01\productn\G\GWN\91-1\GWN101.txt unknown Seq: 56 24-FEB-23 14:13

56 THE GEORGE WASHINGTON LAW REVIEW [Vol. 91:1

other states, must inevitably result in an impairment of uni-

formity of efficient railroad operation because the railroads

are subjected to regulation which is not uniform in its appli-

cation. Compliance with a state statute limiting train lengths

requires interstate trains of a length lawful in other states to

be broken up and reconstituted as they enter each state ac-

cording as it may impose varying limitations upon train

lengths. The alternative is for the carrier to conform to the

lowest train limit restriction of any of the states through

which its trains pass.

281

In this way, the Court measured the burden that Arizona imposed on

interstate commerce by reference to the content of other state’s rules.

Likewise in Bibb, the Court understood Illinois’s curved-mudflap re-

quirement to require trucks traveling interstate to weld on curved

mudflaps at the Illinois border.

282

This view of the issue implicitly

takes other states’ laws as the benchmark for measuring the burden

imposed by Illinois’s curved mudflap rule. Similarly, in Kassel, the Su-

preme Court understood the burden Iowa imposed on interstate com-

merce with its more restrictive truck-length rule to include the need

for interstate truckers to switch trucks or to divert around Iowa.

283

Thus, the Court determined the burden Iowa imposed on interstate

commerce against a background of other states’ preexisting regula-

tions. This kind of external benchmarking uses other states’ laws as the

standard for determining the burden the challenged rule imposes on

interstate commerce.

Just as it uses external benchmarking to determine burdens, in

mismatch cases the Supreme Court also uses external benchmarking

to assess the state interest. Specifically, the Court considers whether a

deviating regulation provides any benefit over and above the benefit

conferred by other states’ preexisting regulations. For example, the

Southern Pacific Court measured Arizona’s safety interest relative to

other state’s regimes before it concluded that Arizona’s regulation

“affords at most slight and dubious advantage, if any, over unregu-

lated train lengths.”

284

The Bibb Court likewise conducted a relative

state-interest analysis, comparing the safety of curved mudflaps to the

281

S. Pac. Co. v. Ariz. ex rel. Sullivan, 325 U.S. 761, 773 (1945).

282

Bibb v. Navajo Freight Lines, 359 U.S. 520, 527 (1959) (noting that the case raised the

question “whether one State could prescribe standards for interstate carriers that would conflict

with the standards of another State, making it necessary, say, for an interstate carrier to shift its

cargo to differently designed vehicles once another state line was reached”).

283

Kassel, 450 U.S. at 667.

284

Southern Pacific, 325 U.S. at 779.

\\jciprod01\productn\G\GWN\91-1\GWN101.txt unknown Seq: 57 24-FEB-23 14:13

2023] BIBB BALANCING 57

safety of straight mudflaps,

285

and it concluded that the advantage of

curved mudflaps as “a new safety device—out of line with the require-

ments of the other States . . . [was] far too inconclusive” to justify its

burden on interstate commerce.

286

Likewise, in Kassel, the Court ex-

pected Iowa to show that the fifty-five-foot trucks it permitted were

markedly safer than the sixty-five-foot trucks permitted in other

states.

287

3. Comparing Benchmarking in Single-State and Mismatch Cases

External benchmarking raises at least three issues. First, judges

may not agree about which external benchmark to use, which injects

uncertainty into Bibb balancing. Most of the time, the Court uses the

nationally dominant practice as the benchmark. Although Justice

Powell explained that “there can be no rule of 26 States, of 35, or of

45,”

288

it is equally clear that consensus among the other states is im-

portant for choosing the external benchmark for Bibb balancing.

289

But such consensus is not always present. For example, in Kassel, the

dissent noted that there was no real consensus among other states in

their truck-length rules, which called into question whether sixty-five

feet was the appropriate baseline for evaluating Iowa’s rule.

290

Moreo-

ver, even if all other states had identical rules, the question arises as to

why the challenged state’s rule should have to be tested against the

dominant rule. As Justice Rehnquist put it, “there is nothing in the

laws of nature which make 65-foot doubles an obvious norm” for

judging appropriate truck lengths.

291

Identifying the baseline also seems to be problematic when one

state has a rule, but other states have no rule. For example, in South-

ern Pacific, the Court used the absence of regulation in other states as

a baseline to attribute to Arizona all the costs associated with Ari-

zona’s limits on train lengths. But in an interstate transportation case

decided in 1960, Huron Portland Cement Co. v. Detroit,

292

the fact that

other states had no regulation in the area covered by the challenged

285

Bibb, 359 U.S. at 523–30.

286

Id. at 530.

287

Kassel, 450 U.S. at 677.

288

Moorman Mfg. Co. v. Bair, 437 U.S. 267, 296 (1978) (Powell, J., dissenting) (arguing

that the majority should have removed the mismatch burden generated by Illinois’s outlier tax

apportionment formula).

289

See Hunt v. Wash. State Apple Advert. Comm’n, 432 U.S. 333, 337 (1977); Bibb, 359

U.S. at 523; Kassel, 450 U.S. at 671; Southern Pacific, 325 U.S. at 774.

290

Kassel, 450 U.S. at 688 (Rehnquist, J., dissenting).

291

Id. at 699.

292

362 U.S. 440 (1960).

\\jciprod01\productn\G\GWN\91-1\GWN101.txt unknown Seq: 58 24-FEB-23 14:13

58 THE GEORGE WASHINGTON LAW REVIEW [Vol. 91:1

state’s regulation meant that the Supreme Court failed to perceive

that it was even dealing with a mismatch. In Huron, the Supreme

Court considered whether Detroit violated the dormant Commerce

Clause by forbidding ships docked in its ports from emitting more

than a maximum amount of air pollution.

293

Complying with the regu-

lation required ship owners to install pollution-mitigation equipment.

Distinguishing Huron from Bibb, the Court concluded that although

the challenger complained that “local governments might impose dif-

fering requirements as to air pollution, [the challenger] has pointed to

none. The record contains nothing to suggest the existence of any such

competing or conflicting local regulations.”

294

Stating that the dormant

Commerce Clause question “needs no extended discussion,”

295

the

Court easily upheld Detroit’s “[e]venhanded”

296

regulation, which had

been “enacted for the manifest purpose of promoting the health and

welfare of the city’s inhabitants.”

297

Notwithstanding the Court’s conclusion that Huron involved no

regulatory conflict, under our definition, Detroit’s regulation created

a mismatch burden in the same way that Arizona’s did in Southern

Pacific. Specifically, if all ports had Detroit’s rule, then all ships every-

where would comply with it and out-of-state shippers would face no

additional costs to dock in Detroit that they did not face in their home

ports. But because other ports had not adopted the same rule as De-

troit, out-of-state shippers had to buy special equipment just to dock

in Detroit. Because the Detroit regulation did not affirmatively con-

flict with laws adopted by other states or cities, however, the Supreme

Court was unable to perceive a mismatch burden.

298

In Southern Pa-

cific, by contrast, the Court perceived the mismatch and employed an

external reference base consisting of the absence of regulation to mea-

sure the burden Arizona imposed on interstate commerce. Because

the choice of the benchmark often will be determinative under Bibb

293

Id. at 448.

294

Id. (providing a “compare,” that is, “cf.,” reference to Bibb); id. at 444 (citing Southern

Pacific and Bibb for the proposition that “a state may not impose a burden which materially

affects interstate commerce in an area where uniformity of regulation is necessary”).

295

Id. at 448.

296

Id. at 443.

297

Id. at 442.

298

If the Court had perceived the mismatch in Huron, and had it engaged in Bibb balanc-

ing, it presumably would have weighed the burden, which it would have calculated against an

external benchmark consisting of other states’ nonregulation, against Detroit’s interest in reduc-

ing pollution and against other states’ interests in nonregulation, which might include the inter-

est in keeping costs low for shippers.

\\jciprod01\productn\G\GWN\91-1\GWN101.txt unknown Seq: 59 24-FEB-23 14:13

2023] BIBB BALANCING 59

balancing, if that choice is unpredictable or arbitrary, so may be the

outcome of the case.

Second, external benchmarking in Bibb cases is properly dynamic

and depends on factors outside the control of any one state. This is

due to the conditional nature of regulatory mismatches. Mismatches

arise from differences between the laws of the challenged state and

the actual present configuration of the laws of other states. As laws

change, the benchmark also changes. Moreover, this is not only the

proper, but the only way to analyze a mismatch case; the crux of a

mismatch case is the difference between the challenged state’s laws

and those of other states. Thus, the exact same law may be constitu-

tional today, but unconstitutional at some point in the future, depend-

ing on intervening changes to other states’ laws. The reverse is also

true: a law deemed unconstitutional today because it conflicts with the

laws of other states could become constitutional in the future if more

states adopted it. This seeming paradox—that widespread adoption of

an unconstitutional regulation could transform it into a constitutional

regulation—is a straightforward implication of the Court’s willingness

to engage in balancing with external benchmarks in mismatch cases.

As with the normative uncertainty regarding whether or not courts

should intervene in mismatch cases, the additional variables and con-

tingencies that arise from external benchmarking make mismatch

cases more vulnerable than are single-state cases to charges of

arbitrariness.

Third, as the next Section explains, external benchmarking leads

to greater policy impacts than does internal benchmarking.

C. Judicial Legislation

This Section explains that eliminating a mismatch requires some

form of regulatory harmonization across the states, whereas no such

harmonization is needed to cure a single-state burden. Thus, preclu-

sion in mismatch—but not single-state—cases drives not only changes

in law, but substantive regulatory harmonization. Moreover, for rea-

sons explained here, this harmonization has a deregulatory bias; con-

versely, allowing mismatches to remain will tend to have a pro-

regulatory bias, as discussed later.

299

These phenomena suggest that

criticism that dormant Commerce Clause review leads to judicial law-

299

See infra text accompanying notes 303–04. R

\\jciprod01\productn\G\GWN\91-1\GWN101.txt unknown Seq: 60 24-FEB-23 14:13

60 THE GEORGE WASHINGTON LAW REVIEW [Vol. 91:1

making applies with more force to mismatch than to single-state

cases.

300

On the surface, the remedy in single-state and mismatch cases is

the same, namely, preclusion. Differences emerge after preclusion. In

single-state cases, the state typically can cure the constitutional infir-

mity either by equalizing the treatment of insiders and outsiders—as

in cases of facial discrimination—or by reducing or eliminating the of-

fending state’s barrier to interstate commerce—as for regulations that

function equivalently to tolls, like Pike.

301

Preclusion thus creates no

implicit preference for adopting any particular substantive rule. Cur-

ing mismatch burdens, by contrast, requires removing regulatory di-

versity through forbearance, conformity, or coordination. Specifically,

a state could practice forbearance by repealing the offending regula-

tion and replacing it with nothing, or it could conform by adopting the

same substantive regulation as that used by other states. Finally, the

states acting together could coordinate their regulations, for example,

by adopting a rule that would determine which state’s law should ap-

ply in cases of potential conflict.

302

As a practical matter, all three op-

tions involve some form of regulatory harmonization.

When the Court strikes a mismatched state law under the dor-

mant Commerce Clause, in effect it forces the state to harmonize its

rule with the rule of one or more sister states.

303

In particular, preclu-

sion tends to force the challenged state to adopt—or at least permit—

the benchmark rule, a phenomenon that could be called harmoniza-

tion by preclusion. Regulatory harmonization is thus an important

outcome of mismatch, but not necessarily single-state, cases. As in any

dormant Commerce Clause case, preclusion in mismatch cases implic-

300

For criticisms of dormant Commerce Clause cases for judicial lawmaking, see discussion

supra Section I.B.

301

Trade law calls this “national treatment;” the Supreme Court calls it “leveling.” See

General Agreement on Tariffs and Trade art. III, Oct. 30, 1947, 61 Stat. A-11, 55 U.N.T.S. 194

[hereinafter GATT] (“National Treatment on Internal Taxation and Regulation.”); Comptroller

of Treasury of Maryland v. Wynne, 575 U.S. 542, 598 (2015) (Ginsburg, J., dissenting) (“When-

ever government impermissibly treats like cases differently, it can cure the violation by either

‘leveling up’ or ‘leveling down.’ Whenever a State impermissibly taxes interstate commerce at a

higher rate than intrastate commerce, that infirmity could be cured by lowering the higher rate,

raising the lower rate, or a combination of the two.”).

302

The corporate internal-affairs doctrine, under which other states defer to the charter

state regarding certain corporate regulations, represents a coordination rule. See CTS Corp. v.

Dynamics Corp. of Am., 481 U.S. 69, 89 (1987). For more on coordination rules, see discussion

infra Section IV.B.2.

303

Halberstam, supra note 263, at 810 (criticizing undue-burden cases generally, without R

distinguishing between single-state and mismatch cases, because undue burden cases represent

“a naked effort to contain democratic politics by harmoniz[ation]”).

\\jciprod01\productn\G\GWN\91-1\GWN101.txt unknown Seq: 61 24-FEB-23 14:13

2023] BIBB BALANCING 61

itly, if not explicitly, rejects the tradeoffs that the offending state chose

in its political process. But only in mismatch cases does judicial preclu-

sion reject the challenged state’s tradeoffs in favor of different trade-

offs made by other states. For example, in Kassel, Iowa’s legislature at

the margin would have traded less efficient trucking for safer roads.

But other states at the margin chose commerce over safety. When the

Supreme Court determined that Iowa’s shorter maximum truck length

impermissibly burdened interstate commerce as compared to an ex-

ternal benchmark consisting of other states’ longer maximums, the

Court implicitly chose other states’ democratic tradeoffs over Iowa’s.

Some justices object to this type of harmonization by preclusion. For

example, in his dissent in Kassel, Justice Rehnquist criticized the

Court for “essentially . . . compelling Iowa to yield to the policy

choices of neighboring States.”

304

Beyond forcing harmonization, this Article shows that preclusion

in mismatch cases will tend to be deregulatory in ways that preclusion

in single-state cases is not. On the surface, judicial preclusion in both

single-state and interaction cases is deregulatory because after either,

the state must eliminate or revise its regulation. However, because

mismatch cases implicitly involve selecting one regulation over another,

and because commercial actors will tend to challenge stricter and

novel regulations, but not laxer and common regulations, when mis-

match cases end in preclusion, they tend to preclude stricter and novel

regulations. Again, Kassel serves as a good example. Private litigants

challenged Iowa’s stricter law, and the Court used other states’ laxer

laws as the benchmark for evaluating the benefit and burden of Iowa’s

law. In this way, stricter and newer laws face challenges that older and

laxer laws do not; the role of private litigants in dormant Commerce

Clause cases will thus tend to make preclusion on those cases

deregulatory.

The most obvious deregulatory impact of preclusion in mismatch

cases occurs when the challenged state simply repeals its own stricter

rule and adopts the laxer benchmark rule. But deregulation following

preclusion in a mismatch case can work through other mechanisms as

well. Return to Kassel. After the Supreme Court precluded its short-

truck rule, Iowa had to allow other states’ sixty-five-foot trucks on its

roads. Iowa could do this by repealing its own truck-length limit and

conforming to the sixty-five-foot benchmark rule. But Iowa could try

to advance its residents’ preferred tradeoff between safety and com-

304

Kassel v. Consol. Freightways Corp., 450 U.S. 662, 699 (1981) (Rehnquist, J., dissenting)

(arguing that only Congress could prescribe a uniform national rule for truck lengths).

\\jciprod01\productn\G\GWN\91-1\GWN101.txt unknown Seq: 62 24-FEB-23 14:13

62 THE GEORGE WASHINGTON LAW REVIEW [Vol. 91:1

mercial efficiency while simultaneously satisfying its obligations under

the dormant Commerce Clause by retaining its shorter limit for Iowa-

licensed trucks while permitting longer trucks from other states to

drive on its roads. If Iowa maintains its shorter limit for Iowa-licensed

trucks, out-of-state truckers will have a competitive advantage over

Iowa truckers whenever longer trucks are more efficient. This will

tend to advantage out-of-state truckers and will likely lead to more

non-Iowa-licensed trucks on Iowa highways. Thus, out-of-state truck-

ers, who are subject to laxer regulations, can be expected to constitute

a larger share of the Iowa market. In-state truckers, now disadvan-

taged in competition with out-of-state truckers, in turn, can be ex-

pected to lobby for the laxer rule to apply to themselves as well. In

this way, even if it does not lead directly to adoption of the laxer rule

by the precluded state, preclusion pursuant to Bibb balancing will

tend over time to lead to deregulation and to encourage legal harmo-

nization. Economists call this phenomenon—under which laxer regu-

lations spill over to other jurisdictions—the “Delaware Effect” or a

“race to the bottom.”

305

In contrast with mismatch cases, state responses to preclusion in

single-state cases are relatively straightforward. Preclusion of single-

state burdens leads to “equalization” of the in-state and out-of-state

case, or it leads to disapplication of the offending state’s rule in whole

or part. What a state need not do to cure a single-state violation, how-

ever, is to examine—much less accept or adopt—the laws of other

states. Thus, harmonization is not a necessary outcome of single-state

cases.

D. Complexity of Balancing

A persistent criticism of dormant Commerce Clause review con-

cerns the difficulty of conducting balancing analysis.

306

Acknowledg-

305

See generally D

AVID

OGEL

, T

RADING

: C

ONSUMER AND

NVIRONMENTAL

EGULA-

TION IN A

LOBAL

CONOMY

5 (1995) (using the terms “Delaware Effect” and “race to the

bottom”). Note that adopting a coordination rule will also tend towards deregulation, as multis-

tate commercial actors respond to the coordination rule. See infra Section IV.B.2. Indeed, the

term “Delaware Effect” refers to the private response to the internal-affairs doctrine, under

which states defer to certain corporate regulation of a company’s charter state. The internal-

affairs doctrine has led multistate companies to disproportionately incorporate in Delaware. See

OGEL

, supra, at 5–6. Under the early view of this phenomenon, corporations favored Delaware

because managers sought to take advantage of the state’s management-favorable corporate law.

Under the more recent view, corporations choose Delaware because Delaware’s rules maximize

the value of the firm, which benefits both shareholders and managers.

306

Justice Scalia famously compared balancing state interests and impacts on interstate

commerce to comparing the length of a line to the heaviness of a rock. Bendix Autolite Corp. v.

\\jciprod01\productn\G\GWN\91-1\GWN101.txt unknown Seq: 63 24-FEB-23 14:13

2023] BIBB BALANCING 63

ing these concerns, this Section considers whether there is any reason

to expect that balancing would be easier or harder in mismatch cases

than in single-state cases.

First, determining the burden in Bibb cases may be harder than in

Pike cases because determining the magnitude of any disruptive effect

on the national market of a mismatch—as opposed to a single-state

rule that functions equivalently to a toll—requires knowledge of the

law in multiple states and of the goods and services produced by dif-

ferent firms in different states. It also requires knowledge—possibly

deep knowledge—of the marketplace, including competing products,

production techniques, marketing practices, and consumer percep-

tions. These are not assessments that courts are well-equipped to

make. Second, mismatch cases are dynamic—that is, the benchmark

will change as states change their regulations, and as economic actors

adjust their commercial practices. This, in turn, may necessitate more

frequent judicial consideration in mismatch than single-state cases. Put

differently, whereas a decision in a single-state case generally may be

regarded as final, a decision in a mismatch case is only final as long as

the benchmark remains unchanged.

307

Third, mismatch cases are more

Midwesco Enters., Inc., 486 U.S. 888, 897 (1988) (Scalia, J., concurring). We have no special

response to this impossibility or “incommensurability” argument, which applies not only to dor-

mant Commerce Clause review, but to all areas in which courts use balancing to trade off consti-

tutional rights, entitlements, and values. Instead, we merely observe, as have others before us,

that if constitutional courts are the correct institution to make tradeoffs among such interests,

then those courts inevitably will have to balance among them. See generally Mathews & Stone

Sweet, supra note 280, at 803 (defending balancing, which they call by its European name, pro- R

portionality). We also observe that the types of comparisons called for in dormant Commerce

Clause review are less problematic than Justice Scalia’s quip would suggest. As more cases are

heard and more decisions are rendered, earlier decisions provide context for later decisions, so

later decisions can more readily and reasonably be evaluated for their consistency with earlier

decisions. Id. at 820 (“One of the virtues of proportionality balancing is that it allows a court to

claim doctrinal consistency while retaining flexibility across time and cases.”).

307

The fifty-year battle over collection of state sales taxes by remote sellers, which required

the Supreme Court to revisit substantively the same legal issue three times under changing mar-

ket, legal, and technological conditions, provides a nice demonstration of the perils of dynamic

baselines. See Ruth Mason, Implications of Wayfair, 46 I

’

. 810, 810–14 (2018)

(describing three Supreme Court cases dealing with tax-compliance mismatches, decided over

fifty years, in which the outcome on the dormant Commerce Clause issue changed principally

due to shifting technological and market conditions that altered both burdens and interests).

Although these cases involved dormant Commerce Clause nexus, rather than dormant Com-

merce Clause undue burdens, the legal issues considered were so similar that in dicta in South

Dakota v. Wayfair, the last of the three cases, the Supreme Court concluded by noting that the

Court might have to take up analysis of the burdens and benefits of mismatched tax-compliance

rules in the future under Pike. See South Dakota v. Wayfair, Inc., 138 S. Ct. 2080, 2098 (2018).

Specifically pointing to Pike, the Court stated that “other aspects of the Court’s Commerce

Clause doctrine can protect against any undue burden on interstate commerce, taking into con-

\\jciprod01\productn\G\GWN\91-1\GWN101.txt unknown Seq: 64 24-FEB-23 14:13

64 THE GEORGE WASHINGTON LAW REVIEW [Vol. 91:1

difficult for courts to resolve than single-state cases for the simple rea-

son that mismatch cases involve balancing among a larger number of

competing interests than do single-state cases. Single-state cases in-

volve weighing only two interests against each other—the burden on

interstate commerce against one particular state’s regulatory interest.

In this way, single-state cases represent a simple tug-of-war between

the national-market interests and the regulatory interest of the chal-

lenged state. In contrast, mismatch cases involve multifactor analysis.

In addition to implicating national-market interests and the regulatory

interests of the challenged state, mismatch cases also effectively in-

volve a contest among two (or more) states for regulatory control of a

single commercial act that affects both states. In mismatch cases, un-

less the reviewing court sees a clear case of intentional protectionism

(as with California’s fat-content rule for avocados), Bibb-balancing re-

quires adjudicating disputes about whether, in the name of national

market efficiency, one state’s regulations should prevail over another

state’s regulations. When different states adopt different policies,

resolving impediments to interstate commerce that result from those

policy differences implicitly means choosing among the different regu-

lations.

308

Thus, balancing in mismatch cases is more complicated than

in single-state cases. The next Part discusses these issues at greater

length.

IV. T

UTURE OF

ISMATCH

ASES UNDER THE

ORMANT

OMMERCE

LAUSE

So far, this Article has sought to reframe dormant Commerce

Clause doctrine by emphasizing the differences between single-state

and mismatch burdens that, in turn, motivate differences in Pike and

Bibb balancing. This Article also explained how traditional criticisms

of dormant Commerce Clause doctrine apply differently to single-

state and mismatch cases. This Part uses an example from a recent

case involving a challenge to California’s cage-free egg regulation to

consider the most important disputes surrounding regulatory mis-

matches, namely, whether the Supreme Court should intervene in

them, and if so, how it should decide which state’s law prevails. This

sideration the small businesses, startups, or others who engage in commerce across state lines.”

Id.

308

Reticence about refereeing between competing state regulations can be seen elsewhere

in constitutional law. For example, the Supreme Court largely has withdrawn from active inter-

vention in interstate conflicts-of-laws disputes. See Allstate Ins. Co. v. Hague, 449 U.S. 302,

310–13 (1981) (holding that state’s decision to apply its own law will conform to Constitution

provided it is “neither arbitrary nor fundamentally unfair”).

\\jciprod01\productn\G\GWN\91-1\GWN101.txt unknown Seq: 65 24-FEB-23 14:13

2023] BIBB BALANCING 65

Part also suggests ways that the Supreme Court could modify its anal-

ysis in mismatch cases to produce more predictable outcomes, or, in

the alternative, it suggests different decision-making paradigms that

the Court could use to resolve mismatch cases. These alternatives de-

rive from EU law, trade law, and scholarship.

A. A Current Example: Cage-Free Eggs

There are several pending dormant Commerce Clause challenges

to regulatory mismatches—on topics ranging from product stan-

dards

309

to corporate-board composition

310

—that will give courts, in-

cluding the Supreme Court, the opportunity to formally recognize the

distinction between single-state and mismatch cases. To make our ar-

guments about the differences between Pike and Bibb balancing con-

crete, this Section considers one such dispute. In response to

California recently banning the production or sale in California of

non-cage-free eggs, six other states, led by Missouri, challenged the

regulation, arguing that, as applied to eggs produced outside Califor-

nia, the regulation was discriminatory, or, in the alternative, that it

imposed an undue burden on interstate commerce.

311

The Ninth Cir-

cuit dismissed the challenge, holding that the six states lacked standing

to challenge California’s rule. But injured farmers will have standing,

and they presumably will bring their own challenges. If so, any court

that hears the case would consider whether the California cage-free

egg rule violates the dormant Commerce Clause. The law is not

facially discriminatory; California treats in-state and out-of-state eggs

the same; to be sold in California, they must be produced by cage-free

chickens.

312

Notwithstanding its facial neutrality, our analysis suggests

that if the regulation had been enacted with protectionist intent, then

309

See Nat’l Pork Producers Council v. Ross, 6 F.4th 1021, 1025 (9th Cir. 2021), cert.

granted, 142 S. Ct. 1413 (2022) (challenging as a mismatch a California law requiring sows to be

kept in cages larger than those required by other states); see also Jessica Berch, If You Don’t

Have a Cow (or Chicken or Pig), You Can’t Call It Meat: Weaponizing the Dormant Commerce

Clause to Strike Down Anti-Animal-Welfare Legislation, 2021 U

TAH

L. R

. 73, 73 (2021)

(tracking pending dormant Commerce Clause cases related to “the animal-protection move-

ment,” such as labeling laws and laws related to the humane treatment of farm animals).

310

See Joseph Grundfest, Mandating Gender Diversity in the Corporate Boardroom: The

Inevitable Failure of California’s SB 826, at 3 (Stanford L. Sch. & Rock Ctr. for Corp. Govern-

ance, Working Paper Series 232, 2018) (arguing that recent legislation requiring companies head-

quartered in California, regardless of where incorporated, to appoint women and minorities to

their boards violates the dormant Commerce Clause because it conflicts with regulations in the

companies’ incorporation state).

311

Missouri ex rel. Koster v. Harris, 847 F.3d 646, 650–52 (9th Cir. 2017), cert. denied sub.

nom. Missouri v. Becerra, 137 S. Ct. 2188 (2017) (dismissing the case for lack of standing).

312

See id. at 651–52.

\\jciprod01\productn\G\GWN\91-1\GWN101.txt unknown Seq: 66 24-FEB-23 14:13

66 THE GEORGE WASHINGTON LAW REVIEW [Vol. 91:1

courts typically would preclude it for that reason alone. Some judges

would go no farther, concluding that, after exhausting the inquiry into

intentional protectionism, further judicial intervention into mis-

matches cases is improper. Notice that the consequence of such a view

is that the principal remaining limits on a state’s ability to use mis-

matched rules to burden interstate commerce would be extraterritori-

ality principles developed under the dormant Commerce Clause, the

possibility of federal preemption, and due process limits on the reach

of a state regulatory authority.

Other judges, however, would go on to evaluate the California

regulation as a mismatch burden—namely, a mismatch between Cali-

fornia’s regulation requiring eggs to be cage-free and other states’, in-

cluding Missouri’s, laxer regulations. These judges would apply what

we call Bibb balancing (but which courts typically describe as Pike

balancing).

313

Such Bibb balancing involves choosing an external

benchmark against which to measure the burden of the California

rule. Although this Article noted earlier that there is no obvious, well-

grounded method for selecting external benchmarks for evaluating

mismatched regulations, past experience tells us that the reviewing

court likely would pick an external benchmark consisting of the domi-

nant egg regulation applicable in other states, if one exists, or perhaps

the regulation of the complainant’s state, such as Missouri. In either

case, the reviewing court would judge the California rule against a

baseline consisting of the regulation of another state or states.

Suppose the reviewing court identifies Missouri law as the rele-

vant benchmark. It would then measure the burden that the California

rule imposes on interstate commerce relative to that benchmark. The

resulting burden, which would include the need for out-of-state egg

producers to, for example, buy larger crates, would be attributed

solely to California. Only then, to justify this burden on interstate

commerce, would California be able to bring in its regulatory inter-

ests, such as preventing cruelty to animals and any human health ben-

efits from cage-free over non-cage-free eggs. Assuming these are

legitimate local interests,

314

they too would be judged by an external

benchmark consisting of the laws of other states. California would

313

Interventionist judges also might apply narrow tailoring in mismatch cases, either before

or after balancing. Narrow tailoring is not our main focus.

314

Determining California’s interest could be contentious because California is protecting

not only California chickens, but chickens outside of California as well. Id. at 650–51. Whether

the welfare of egg-laying hens residing in other states is a legitimate state concern in our federal

system is an unanswered question. One reason that an interest in the welfare of animals outside

California might not be a legitimate interest of California is that, in a federation, such an interest

\\jciprod01\productn\G\GWN\91-1\GWN101.txt unknown Seq: 67 24-FEB-23 14:13

2023] BIBB BALANCING 67

thus have to show that its regulation actually advanced California’s

legitimate local public interests—such as improving animal welfare or

human health—compared to the benchmark rule, and that the regula-

tion did so in a manner that did not unnecessarily burden interstate

commerce. As we have explained, precluding the regulation would im-

plicitly endorse the Delaware Effect, under which economic actors

would arrange their affairs to take advantage of the laxest state regu-

lation and in which states competing for economic activity would relax

their regulatory standards. On the other hand, upholding the regula-

tion would implicitly endorse the California Effect, under which strict

state regulations would spill over to other states.

315

Mismatch cases

thus involve not merely a narrow question of national market effi-

ciency, but also the division of regulatory power among the states.

That is, mismatch cases implicitly involve a contest among two or

more states for regulatory control of a single commercial act that af-

fects multiple states.

B. Reforming Bibb Balancing

As an initial matter, we advocate four minor steps to clarify the

dormant Commerce Clause. First, and at a minimum, the Supreme

Court and lower courts should acknowledge the differences between

single-state and mismatch cases, especially the fact that balancing in

single-state cases involves internal benchmarking, whereas balancing

in mismatch cases involves external benchmarking. The second clarifi-

cation involves deference to trial courts. In several mismatch cases,

the Supreme Court essentially conducted a de novo review of the evi-

dence presented at trial, overturning trial court findings regarding the

presence of intentional protectionism.

316

Because the largest area of

might invade the policy prerogatives of other states (in this case, the states where the hens

reside).

315

S.C. State Highway Dep’t v. Barnwell Bros., Inc., 303 U.S. 177, 187 (1938) (“Congress

not acting, state regulation of intrastate carriers has been upheld regardless of its effect upon

interstate commerce.”); Moorman Mfg. Co. v. Bair, 437 U.S. 267, 277–78 (1978) (rejecting the

argument that judicial invalidation of a nondiscriminatory state statute is required under the

Commerce Clause to alleviate asymmetrical burdens on interstate commerce); S. Pac. Co. v.

Ariz. ex rel. Sullivan, 325 U.S. 761, 795 (1945) (Douglas, J., dissenting) (“I have expressed my

doubts whether the courts should intervene in situations like the present and strike down state

legislation on the grounds that it burdens interstate commerce.”); Kassel v. Consol. Freightways

Corp., 450 U.S. 662, 705 (1981) (Rehnquist, J., dissenting) (acknowledging that “[w]henever a

State enacts more stringent safety measures than its neighbors, in an area which affects com-

merce, the safety law will have the incidental effect of deflecting interstate commerce to the

neighboring States,” but refusing to strike down the state law).

316

See, e.g., Minnesota. v. Clover Leaf Creamery Co., 449 U.S. 456, 476 (1981) (Powell, J.,

concurring) (noting that “this Court has no basis for inferring a rejection of the quite specific

\\jciprod01\productn\G\GWN\91-1\GWN101.txt unknown Seq: 68 24-FEB-23 14:13

68 THE GEORGE WASHINGTON LAW REVIEW [Vol. 91:1

agreement under the dormant Commerce Clause is that it prevents

intentional protectionism, it would seem particularly important for the

Court to defer to trial court determinations regarding such findings, as

long as such determinations are truly independent.

317

Third, to avoid

dormant Commerce Clause challenges to mismatched regulations, the

Supreme Court, where possible, could broadly construe federal laws

that create uniform products standards so as to preempt inconsistent

state standards.

318

Finally, the Court should confirm that because Bibb

balancing is dynamic and depends on facts on the ground, stare decisis

should not attach firmly to decisions in mismatch cases. Changing con-

ditions on the ground—whether economic, regulatory, or commer-

cial—properly affect Bibb balancing.

C. Alternatives to Bibb Balancing

1. Mutual Recognition and Harmonization

One potential alternative solution to mismatch cases would be for

the Supreme Court to adopt (or endorse) coordination rules, which

are rules for picking the prevailing rule. CTS Corp. v. Dynamics Corp.

of America

319

is an example of the Supreme Court deferring to a pre-

existing coordination rule in use by the states.

320

Under the internal

affairs doctrine, states defer to the state of incorporation regarding

regulations that govern a corporation’s “internal affairs.” In CTS, the

Supreme Court determined that, as a practical matter, a state that ap-

plied its antitakeover rules only to companies chartered in its own ter-

ritory created no unconstitutional mismatch risk. The Court’s

reasoning depended on widespread adherence to the internal affairs

factfindings by the trial court”); Barnwell, 303 U.S. at 192–95 (ignoring the factual findings of the

trial court).

317

The concern with relying on lower courts’ factual findings includes that state judges

might be less willing than federal judges to make factual findings against the interests of state

legislatures and in-state voters because in many states, state judges lack the independence of

federal judges. See, e.g., Paul M. Friedman, Threats to Judicial Independence and the Rule of

Law, ABA (Nov. 18, 2019), https://www.americanbar.org/groups/litigation/initiatives/committee-

on-american-judicial-system/in-the-news/threats-to-judicial-independence-and-rule-of-law/

[https://perma.cc/J69M-2TH5] (“In contrast to the institutional independence guaranteed to fed-

eral judges by the Constitution, most state court judges are not so insulated from outside

pressures.”).

318

For example, four justices in Florida Lime would have held that California’s fat-content

rule was preempted by federal agricultural standards that determined the ripeness of avocados

based on picking-date and size. Fla. Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132, 169

(1963) (White, J., dissenting).

319

481 U.S. 69 (1987).

320

Id. at 78.

\\jciprod01\productn\G\GWN\91-1\GWN101.txt unknown Seq: 69 24-FEB-23 14:13

2023] BIBB BALANCING 69

doctrine, and the decision in CTS also had the effect of endorsing the

internal-affairs doctrine as an appropriate coordination rule.

321

The Court of Justice of the European Union (“CJEU“) goes fur-

ther by expressly adopting coordination rules of its own devising. The

CJEU interprets a treaty regime that—like our Constitution—assures

both state regulatory autonomy and free movement of goods, business

establishments, and capital throughout the common market.

322

1979, in the famous Cassis de Dijon case, France required fruit li-

queurs to contain at most twenty percent alcohol, whereas Germany

required such liqueurs to contain at least twenty-five percent alco-

hol.

323

As a result, products manufactured to French specifications

could not be sold in Germany, and vice versa. Because the treaties of

the European Union unsurprisingly provided no guidance as to the

appropriate alcohol content of liqueur, it was not clear which state’s

rule should prevail.

To resolve the case, the CJEU fashioned the celebrated “mutual

recognition” requirement, under which products that comply with the

regulation of their state of manufacture are putatively free to circulate

in all other EU states.

324

Mutual-recognition rules specify the jurisdic-

tional basis—call it the jurisdictional hook

325

—that will govern a par-

ticular type of regulation for the whole European Union. The state

that possesses that jurisdictional hook is called the origin state, while

all other EU states are destination states for that type of regulation.

Thus, rather than simply precluding mismatched regulations and leav-

ing it to the challenged state to choose among forbearance, conform-

ity, and coordination as a response, the CJEU itself specifies an EU-

wide coordination rule—that is, it specifies the jurisdictional hook—

for a given type of regulation. Again, the best-known example is Cas-

321

It is uncertain whether the internal-affairs doctrine represents a constitutional require-

ment. See generally Richard M. Buxbaum, The Threatened Constitutionalization of the Internal

Affairs Doctrine in Corporation Law, 75 C

. L. R

. 29 (1987).

322

For similarities between the dormant Commerce Clause and the EU fundamental free-

doms, see generally Ruth Mason & Michael S. Knoll, What is Tax Discrimination?, 121 Y

ALE

L.J. 1014, 1106–15 (2012).

323

Case 120/78, Rewe-Zentral v Bundesmonopolverwaltung f ¨ur Branntwein (Cassis de Di-

jon), 1979 E.C.R. 649, ¶ 1–3. Although the literature on mutual recognition is very substantial,

especially in Europe, as far as we know, no one has argued that preclusion or affirmation under

the dormant Commerce Clause doctrine may be understood to implicitly endorse mutual-recog-

nition rules. Cf. Mathews & Stone Sweet, supra note 280, at 823–24. R

324

Cassis de Dijon, 1979 E.C.R. at ¶ 14. See generally Jacques Pelkmans, Mutual Recogni-

tion in Goods. On Promises and Disillusions, 14 J. E

. P

’

699, 703 (2007).

325

The term “jurisdictional hook” is ours; the CJEU does not use it. We use the term to

avoid ambiguity between “origin state” in a mutual-recognition sense and “origin state” in the

ordinary sense.

\\jciprod01\productn\G\GWN\91-1\GWN101.txt unknown Seq: 70 24-FEB-23 14:13

70 THE GEORGE WASHINGTON LAW REVIEW [Vol. 91:1

sis, in which the CJEU determined that the jurisdictional hook for

consumer-protection regulation would be the state of manufacture,

and all other states (as “destination states”) would have to accept

products that complied with the rules of their state of manufacture.

326

Mutual recognition combines a uniform jurisdictional hook with lim-

ited preclusion of destination states’ rules.

Mutual recognition relies on a crucial assumption, namely that

there exists a fundamental consonance between different states’ poli-

cies that regulate the same subject matter.

327

The notion of regulatory

consonance works as follows: if the rules of both the origin and desti-

nation states are designed to protect consumers, then either state

should be able to rely on the other’s rule. If this is so, then to promote

market integration, rules that aim at the same outcome should be mu-

tually recognized, even if they differ in specification. However, if the

destination state can point to an important state interest that is not

addressed by the origin state’s rule, then mutual recognition does not

apply, and the destination state may apply its own rule.

328

To avoid

unravelling the benefits of mutual recognition, the CJEU construes

this exception narrowly.

329

Mutual recognition represents a bold intervention. Not only does

the CJEU resolve the particular regulatory conflict before it, but it

promulgates the functional equivalent of a conflict-of-law rule for the

whole EU on the regulatory area subject to conflict. Such an approach

is bold because of its broad applicability. But it also avoids what is,

under the current doctrine of the Supreme Court, a stark choice: a

reviewing court faced with a regulatory mismatch must either choose

one state’s rule over another state’s or allow the conflict to remain.

The U.S. product-packaging cases discussed above, Hunt and

Clover Leaf, can be placed into a mutual-recognition paradigm. In

Hunt, the goal of both the North Carolina and Washington apple-la-

beling regimes were ostensibly to inform the consumer of the quality

of the apples, thereby protecting consumers from fraud or confusion.

Although North Carolina preferred the federal grading regime to the

Washington grading regime, the Supreme Court essentially held that

because the Washington regime was sufficient to meet North Caro-

lina’s policy goal, North Carolina had to recognize that regime, rather

326

Cassis de Dijon, 1979 E.C.R. at ¶ 15.

327

Pelkmans, supra note 324, at 703. R

328

See, e.g., Cassis de Dijon, 1979 E.C.R. at ¶ 8 (recognizing exceptions related to tax,

fairness, public health, and consumer protection).

329

Pelkmans, supra note 324, at 711. R

\\jciprod01\productn\G\GWN\91-1\GWN101.txt unknown Seq: 71 24-FEB-23 14:13

2023] BIBB BALANCING 71

than displace it. This is tantamount to requiring mutual recognition.

By contrast, Minnesota’s environmental goals in Clover Leaf could

not be fulfilled by the plastic milk containers that origin states permit-

ted. Other states’ more permissive container regulations were likely

motivated by goals other than environmentalism. Under a European

conception of mutual recognition, the failure of the origin state’s regu-

lation to meet the destination state’s policy goals may entitle the desti-

nation state to displace the origin state’s regulation. Notions of mutual

recognition also may emerge in narrow tailoring analysis in dormant

Commerce Clause cases. For instance, the Court’s conclusion in Dean

Milk that Madison could have relied on out-of-state inspectors to

achieve its milk-safety goals takes a mutual-recognition approach.

330

Although the parallels between the EU’s fundamental freedoms

and the dormant Commerce Clause are obvious, the Supreme Court

never has adopted the concept of origin and destination states, nor

expressly adopted mutual-recognition rules, even when seized with se-

vere regulatory conflicts.

331

Arguably the closest the Supreme Court

has come to mutual recognition was to approve a coordination rule—

the internal-affairs doctrine—that the states had already adopted

themselves.

332

Moreover, mutual recognition would require courts to

develop an approach to decide which state would serve as the origin

state for any particular situation. In some circumstances, such as the

production of goods, the origin state may seem easy to select. How-

ever, in other circumstances, such as online activities, the issue is more

complicated. Courts could choose the origin state by reference to na-

tional welfare,

333

conflict-of-laws rules,

334

general constitutional princi-

ples,

335

or imagined interstate bargaining.

336

330

Dean Milk Co. v. City of Madison, 340 U.S. 349, 356 (1951).

331

Some might regard authorizing legislation as needed to propound mutual-recognition

rules. One reason to doubt that the Supreme Court would seek to impose mutual-recognition

rules in regulatory mismatch cases is the Court’s virtual withdrawal from a constitutional juris-

prudence of conflict of laws. Douglas Laycock, Equal Citizens of Equal and Territorial States:

The Constitutional Foundations of Choice of Law, 92 C

OLUM

. L. R

. 257–58 (1992) (citing

Allstate Insurance Co. v. Hague, 449 U.S. 302 (1981), as part of a discussion concluding that “the

modern Supreme Court has all but abandoned the field” of constitutional review of state con-

flict-of-laws rules).

332

CTS Corp. v. Dynamics Corp. of Am., 481 U.S. 69, 78 (1987).

333

Harold W. Horowitz, The Commerce Clause as a Limitation on State Choice-of-Law

Doctrine, 84 H

ARV

. L. R

. 806, 814 (1971) (advocating that under the dormant Commerce

Clause, the Supreme Court should select national regulations that “would best facilitate multis-

tate commercial transactions”).

334

See generally Laycock, supra note 331, at 252–56 (discussing various approaches to con- R

flicts-of-laws questions).

335

See generally id. at 250–51 (observing in the conflict-of-laws context that although the

\\jciprod01\productn\G\GWN\91-1\GWN101.txt unknown Seq: 72 24-FEB-23 14:13

72 THE GEORGE WASHINGTON LAW REVIEW [Vol. 91:1

2. Requiring “National Treatment” for “Like Products”

The European Union is not alone in constraining states’ abilities

to enact and enforce mismatched regulations. The international rules

that have underpinned the global economic system since the end of

World War II do likewise. In 1948, the victorious allies, believing that

a multilateral trade framework would both restrain the protectionist

pressures that exacerbated the Great Depression and promote peace

and security, established the General Agreement on Tariffs and Trade

(“GATT”).

337

The drafters’ goals were to create a framework that

would reduce tariffs and establish a basic code of conduct for interna-

tional trade. In a series of negotiations, the GATT members sharply

reduced their tariff rates.

338

In order to meaningfully hold the member

countries to the tariff-reduction commitments they made, the GATT

also included a requirement of “national treatment.”

339

Under the na-

tional treatment provision, members cannot use internal laws, taxes,

or nontax regulations to discriminate against imports from member

states that are “like” domestic goods.

340

An imported product is “like”

a domestic product if it is “a directly competitive or substitutable

product.”

341

Although it is widely recognized that it has been difficult to apply

the concept of “like product” consistently and uniformly because its

Constitution does not “dictate[] a unique set of choice-of-law rules,” federal courts could use

background constitutional principles to develop such rules, including the principles of (1) equal

citizens, (2) equal states, and (3) territorial states, which Laycock defines, respectively, to mean

that states “must treat the citizens of sister states equally with their own . . . must treat sister

states as equal in authority to themselves . . . [and the idea that the] fundamental allocation of

authority among states is territorial”); see also Erbsen, supra note 263, at 568–69 (“[C]ompeting R

state regulatory interests could lead a court to require one state to yield to another by inferring a

[mandatory] comity principle from the structure of horizontal federalism. . . . A constitutional

common law of comity, if applied with a light touch, could arguably help avoid interstate

friction.”).

336

We are grateful to Dan Ortiz for suggesting Coasian bargaining to us.

337

See GATT, supra note 301; see also D

OUGLAS

A. I

RWIN

, P

ETROS

C. M

AVROIDIS

& R

LAN

O. S

YKES

, T

ENESIS OF THE

GATT 5–8 (2008).

338

See I

RWIN ET AL

., supra note 337, at 18–20. R

339

GATT, supra note 301, art. III. R

340

There are a few narrow exceptions permitted, such as for protecting health and exhaus-

tible resources and for security. GATT, supra note 301, art. XX, XXI. R

341

See The General Agreement on Tariffs and Trade (GATT 1947), WTO, https://

www.wto.org/english/docs_e/legal_e/gatt47_03_e.htm#annexi [https://perma.cc/YD3P-B7QQ]

(providing interpretative notes about provisions of the GATT); see also WTO, G

UIDE TO

GATT

AW AND

RACTICE

: V

OLUME

1 121, 124 (6th ed. 1995). In 1995, when the World Trade Organi-

zation (“WTO”), which updated the GATT, was created, the national treatment principle and

the concept of “like products” were maintained.

\\jciprod01\productn\G\GWN\91-1\GWN101.txt unknown Seq: 73 24-FEB-23 14:13

2023] BIBB BALANCING 73

boundaries are not well defined,

342

there is at least widespread agree-

ment on what are the relevant factors: the products’ physical charac-

teristics, the end uses of the products, how the products are classified

for tariff purposes, and how consumers view the products.

343

Barring

discrimination against foreign products that are “like” domestic prod-

ucts substantially curtails the ability of member states to enact protec-

tionist policies that rely on small differences across products to justify

differential treatment. It also prevents member states from treating

products differently because of differences in the process or method

of production.

344

Thus, for example, the United States was challenged

under the international trade framework when it banned imports of

tuna that were caught using methods that killed more dolphins than

U.S. standards allowed.

345

The United States was found to have vio-

lated the national treatment standard because the tuna it banned was

“like” the tuna that the United States allowed, namely both were

canned yellowfin tuna (none of which contained dolphin meat).

346

Notice, however, that under the logic of “like product” and “na-

tional treatment,” the United States could have completely banned

the sale of canned yellowfin tuna. Such a complete ban would not im-

pact world trade less than did the U.S. ban on non-dolphin-safe tuna.

But the multilateral trade rules do not aim at eliminating every impact

on world trade that might arise from genuine policy differences. In-

stead, the rules aim to prevent invidious discrimination against foreign

products. With a total ban, U.S. and non-U.S. producers would be

equally affected. But when a country uses a process or method of pro-

duction as a basis for differential treatment, the expectation is that

domestic products will comply (and hence be allowed) whereas for-

eign products will not comply (and hence be excluded).

342

See, e.g., Appellate Body Report, Japan–Taxes on Alcoholic Beverages, WTO Doc. WT/

DS8/AB/R (adopted July 11, 1996) (“The concept of ‘likeness’ is a relative one that evokes the

image of an accordion. The accordion of ‘likeness’ stretches and squeezes in different places as

different provisions of the WTO Agreement are applied. The width of the accordion in any one

of those places must be determined by the particular provision in which the term ‘like’ is encoun-

tered as well as by the context and the circumstances that prevail in any given case to which that

provision may apply.”).

343

Panel Report, Japan–Customs, Duties, Taxes and Labelling Practices on Imported Wines

and Alcoholic Beverages, L/6216 (Nov. 10, 1987), GATT B.I.S.D. (34th Supp.), at 93 (1988).

344

See Robert E. Hudec, “Like Product”: The Differences in Meaning in GATT Articles I

and III, in R

EGULATORY

ARRIERS AND THE

RINCIPLE OF

-D

ISCRIMINATION IN

ORLD

RADE

104 (Thomas Cottier & Petros C. Mavroidis eds., 2000).

345

See Panel Report, United States–Restrictions on Imports of Tuna, DS21/R (Sept. 3,

1991), GATT B.I.S.D. (39th Supp.), at 156–57 (1993).

346

Id. at 204–05.

\\jciprod01\productn\G\GWN\91-1\GWN101.txt unknown Seq: 74 24-FEB-23 14:13

74 THE GEORGE WASHINGTON LAW REVIEW [Vol. 91:1

If the U.S. Supreme Court were to interpret the dormant Com-

merce Clause to include a principle analogous to the multilateral trade

system’s national treatment principle for like products, states would

be prohibited from using narrow distinctions to differentiate among

products. Thus, for example, because caged eggs and cage-free eggs

are like products different only with respect to production process—

that is, they are the same in their physical characteristics, end uses,

and are seen as close substitutes based on consumer tastes and hab-

its—California would not be able to allow the sale of cage-free eggs

while banning the sale of imported caged eggs. At the same time,

however, California could ban the sale of eggs entirely. Although such

a ban might have a larger impact on interstate commerce than would a

ban of non-cage-free eggs, the logic underlying the multilateral trade

rule is that states will not give in to protectionist pressures if the only

way to do so is by enacting comprehensive bans because such bans

would harm domestic producers (and consumers) as much as out-of-

state producers. Thus, any comprehensive bans would likely reflect

policy preferences other than protectionism. Notice also that if Cali-

fornia did enact a complete ban on the sale of eggs, such a complete

ban would not interfere with any other state’s ability to prescribe reg-

ulations for egg production in their own territory. Thus, California’s

outright ban would not interfere with Minnesota’s ability to regulate

its own territory; mediating such interstate disputes is one of the hori-

zontal federalism concerns addressed by dormant Commerce Clause

review of mismatches.

3. Focusing Exclusively on Legislative Intent

Donald Regan’s 1986 article, The Supreme Court and State Pro-

tectionism: Making Sense of the Dormant Commerce Clause, remains

one of the most influential contributions on the dormant Commerce

Clause. He argued that all the Supreme Court does, and all it should

do, in dormant Commerce Clause cases is smoke out intentional pro-

tectionism.

347

Although Regan limited this argument to what he called

the free-movement-of-goods cases, and so did not include many of the

mismatch cases this Article discussed, the same argument also could

be made with respect to mismatch cases. That is, when faced with a

regulatory mismatch, the Supreme Court could consider only whether

the trial court record supports the conclusion that the mismatch was

undertaken for protectionist reasons. Under this approach, if the in-

347

See generally Regan, supra note 16. R

\\jciprod01\productn\G\GWN\91-1\GWN101.txt unknown Seq: 75 24-FEB-23 14:13

2023] BIBB BALANCING 75

tent was protectionist, the regulation would be precluded; otherwise,

the regulation would be upheld. Thus, trial courts would resolve the

main issue in any mismatch case.

There is an obvious appeal to focusing on intent in mismatch

cases; it would avoid balancing. But even setting aside concerns about

whether a legislature can have a single intention,

348

or concerns about

whether trial courts would fail to uncover intentional protectionism,

349

resolving mismatch cases solely by reference to intentional protection-

ism would seem to be insufficient. First, mismatched regulations seg-

ment the national marketplace even when such regulations are not

motivated by protectionism. Second, limiting dormant Commerce

Clause review to cases of intentional protectionism would seem to

supply the states with a roadmap. To segment the market and to pro-

tect insiders from competition, all a state legislature would need to do

348

In Kassel, Justice Brennan pointed to the gubernatorial veto of a bill passed by the Iowa

legislature that would have increased Iowa’s limits to sixty-five feet. Kassel v. Consol. Freight-

ways Corp., 450 U.S. 662, 684 (Brennan, J., concurring). In vetoing the bill, the governor noted

that the regulatory change would have increased traffic and accidents in Iowa. Id. Thus, con-

cluded Justice Brennan, “Iowa’s actual rationale” for the regulation had nothing to do with the

difference in safety between trucks of different lengths; instead, “Iowa sought to discourage

interstate truck traffic on Iowa’s highways.” Id. at 681–82 (Brennan, J., concurring). Brennan

regarded the goal to deflect traffic to be an impermissible state interest because it was “protec-

tionist in nature.” Id. at 685 (emphasis in original). In response, Justice Rehnquist first ques-

tioned whether a legislature could even have “one discernible ‘actual’ purpose” capable of being

discovered by a court. Id. at 702 (Rehnquist, J., dissenting). Next, he noted that “[s]triking down

legislation . . . because of asserted impermissible motives for not enacting other legislation, mo-

tives which could not possibly have been present when the legislation under challenge here was

considered and passed,” was “unprecedented in this Court’s history.” Id. at 705 (emphasis

omitted).

349

Bibb may be an example of failure to uncover intentional protectionism. The late Abner

Mikva, congressman, circuit court judge, and White House counsel, noted that when he was in

the Illinois legislature, he frequently voted “present,” rather than “yea” or “nay,” because a bill

just smelled bad. Interview by Mark DePue with Judge Abner Mikva, former Congressman,

D.C. Cir. Judge, and Clinton White House Couns., in Chicago, Ill. (Oct. 22, 2014), https://pre-

sidentlincoln.illinois.gov/Resources/c013a7b0-0931-4c38-83c4-2ff88a7abf12/

Mikva_Abner_EXCPT_TRSCRPT.pdf [https://perma.cc/VTC5-BXFP]. The example Mikva

gave was a 1955 bill requiring curved mudflaps on Illinois roads. Id. Paul Powell, a powerful

Illinois legislator, who twice served as speaker, had introduced the bill. Id. Mikva was not sure

what was going on, but to him the bill smelled bad. Id.

Although the courts that handled Bibb raised no concerns about improper motives, when

Paul Powell died in 1970, it was clear that Mikva’s nose was onto something. Among the many

assets Powell had in his $4.6 million estate when he died, were 17,000 shares in one Illinois

company that produced curved mudflaps and a $55,000 promissory note from another mudflap

company. Dorothy Clune, Powell Estate Inventory Filed, M

OUNT

ARMEL

AILY

EPUBLICAN

., Jan. 29, 1971, at 1. A federal investigation determined that Powell acquired much of his

wealth from bribes, and he had been bribed to introduce the bill that advanced the mudflap

companies’ interests. Fender Guard Admits Writing Law, C

. D

AILY

RIB

., Feb. 9, 1957, at 7.

\\jciprod01\productn\G\GWN\91-1\GWN101.txt unknown Seq: 76 24-FEB-23 14:13

76 THE GEORGE WASHINGTON LAW REVIEW [Vol. 91:1

is adopt a mismatch that asymmetrically burdens interstate commerce

without giving as the reason for doing so the desire to reduce or elimi-

nate competition from outsiders. Savvy legislatures could thus impose

intentionally protectionist mismatches with impunity. Third, limiting

review to intentional protectionism would ignore the structural feder-

alism concerns that mismatch cases raise, including questions regard-

ing proper allocation of power among states. Thus, limiting judicial

review of mismatched regulations only to those motivated by protec-

tionist intent would do nothing to limit even severe intentional regula-

tory spillovers (provided such spillovers were not intentionally

protectionist).

350

ONCLUSION

Most commentators and, by our estimates, a majority of the

newly constituted Supreme Court, support the nondiscrimination

strand of dormant Commerce Clause doctrine, but much more contro-

versy surrounds undue burdens. Views diverge about whether regula-

tions that are facially neutral should be immune from scrutiny under

the dormant Commerce Clause. That divergence is not surprising

given the important values on both sides—the interest in preventing

state enmities and protecting the national marketplace on the one

hand, and the interests in preserving state autonomy and regulatory

diversity on the other hand. Dormant Commerce Clause cases involve

trading off these values against each other.

It is worth understanding, however, which cases pose the hardest

problems under the dormant Commerce Clause, and which draw the

most justified criticism. This Article sought to supplement the tradi-

350

An example is a California law that prohibits sales in California of pork from the off-

spring of breeding sows confined in a manner California considers cruel. C

. H

EALTH

AFETY

ODE

§ 25990(b) (West 2022). Such law probably cannot be reasonably said to have

been intended to protect California hog farmers from outside competition because there are so

few hog farmers in California. Petition for a Writ of Certiorari to the United States Court of

Appeals for the Ninth Circuit at 17, Nat’l Pork Producers Council v. Ross, No. 21-468 (filed Sept.

27, 2021) (noting that 99.9 percent of pork sold in California is derived from sows outside of the

state). However, the law can be understood as intended to impose California standards on hog

farmers outside of California. Brief for the United States as Amicus Curiae Supporting Petition-

ers at 19, Nat’l Pork Producers Council v. Ross, No. 21-468 (filed Jun. 1, 2022) (“Proposition 12’s

primary ‘purpose’—and according to the California Department of Food and Agriculture, its

only substantial purpose—is ‘to prevent animal cruelty by phasing out’ what California voters

deem to be ‘extreme methods of farm animal confinement.’” (citations omitted)). One of the

issues in Nat’l Pork Producers Council v. Ross, set for argument in the Court’s 2022-23 term, is

whether California has a constitutionally legitimate interest in housing conditions of out-of-state

animals. The U.S. Solicitor General argues that California has no such interest. Brief for the

United States, supra, at 19–24.

\\jciprod01\productn\G\GWN\91-1\GWN101.txt unknown Seq: 77 24-FEB-23 14:13

2023] BIBB BALANCING 77

tional discrimination/undue-burden distinction in dormant Commerce

Clause cases with a distinction that takes account of the type of bur-

den imposed by the regulation: whether it is single-state or mismatch.

Reframing the doctrine allowed us to show that (1) mismatch cases

are meaningfully different than single-state cases, which is why they

receive different treatment by the Supreme Court; (2) there are more

sources of doctrinal uncertainty in mismatch cases than single-state

cases, due to fundamental disagreements about whether and how to

resolve such cases; (3) more so than single-state cases, decisions to

preclude or uphold in mismatch cases tend to endorse particular rules

and policy shifts; and (4) unlike single-state cases that principally raise

concerns about the smooth functioning of the national market, mis-

match cases raise fundamental horizontal federalism questions about

the allocation of power between states. Thus, this Article sought to

make clear what is really at stake in mismatch cases, how they differ

from single-state cases, and why they generate so much controversy.

The goal of this Article was not to argue that the Supreme Court

either should abandon undue-burden balancing in mismatch cases or

engage in more balancing in such cases. Instead, the goal was to clarify

what is actually happening in dormant Commerce Clause cases, in-

cluding mismatch cases, to explain why it matters in terms of regula-

tory outcomes, the national economy, and federalism more generally,

and to offer some rational ways of improving or curtailing balancing in

mismatch cases.

\\jciprod01\productn\G\GWN\91-1\GWN101.txt unknown Seq: 78 24-FEB-23 14:13

78 THE GEORGE WASHINGTON LAW REVIEW [Vol. 91:1

ABLE

. A

PPROACH OF

USTICES IN

ISMATCH

ASES

ISCUSSED IN

ART

II (A

UTHOR

REATED

)

351

Justice

Party of

Appointing

President

Barnwell

1938

S. Pac.

1945

Bibb

1959

Hunt

1977

Moorman

1978

Kassel

1981

Clover

Leaf

1981

Black D N N I

Blackmun R I I I N

Brandeis D N

Brennan R I I I I N

Burger R I N N N

Butler R N

Clark D I

Douglas D N I

Frankfurter D I I

Harlan R I

Hughes R N

Jackson D I

Marshall D I N I N

McReynolds D N

Murphy D I

Powell R I I I N/A

Reed D I

Rehnquist R N N

Roberts R N I

Rutledge D I

Stevens R I N I I

Stewart R I I N N N

Stone R N I

Warren R I

White D I N I N

Whittaker R I

351

We are grateful to Lawrence Barker, UVA J.D. expected 2023, for this table. In this

table, “N” indicates a noninterventionist approach, “I” indicates an interventionist approach,

and “N/A” indicates that the justice did not reach the mismatch issue.