Brief of Professors Michael Knoll and Ruth Mason as Amici Curiae Supporting Petitioners in \u3ci\u3eNational Pork Producers Council v. Ross\u3c/i\u3e

The district court erred when it concluded that because Proposition 12 applies only to in-state sales, it could not be extraterritorial. On the contrary, because California regulates pork production based on domestic, inbound, and outbound sales, its regulation is internally inconsistent and overbroad. As an obligation of interstate comity, this Court has understood extraterritoriality to require the basis of regulation to be internally consistent. A regulation is internally consistent when, if every state regulated using the same nexus as the challenged state, cross-border commercial activity would not be regulated by more than one state. Proposition 12 cannot meet this basic requirement. Even if the California statute is not extraterritorial, the district court erred in dismissing the case because Petitioners plausibly alleged an undue burden on interstate commerce. Proposition 12 generates a burdensome regulatory mismatch because California’s law differs from that of other states. For regulatory mismatches, the proper line of cases is not Pike v. Bruce Church, Inc., 397 U.S. 137 (1970), but rather other mismatch cases, such as Bibb v. Navajo Freight Lines, Inc., 359 U.S. 520 (1959). This Court’s balancing analysis in mismatch cases differs significantly from such non-mismatch cases, like Pike. Most importantly, in analyzing mismatches, a reviewing court must consider not only California’s regulatory interest and the burden the mismatch imposes on interstate commerce, but also other states’ regulatory interests. The district court failed to do that