The Dormant Commerce Clause and Unreasonable Burdens

Next month the Supreme Court will hear a significant Dormant Commerce Clause--National Pork Producers Council v. Ross. The case involves a challenge to a California law that prohibits the sale of pork within the state unless the pigs were treated in a way that meets certain minimal criteria for animal rights. Pork producers (who are mostly outside of California) argue that this law imposes an intolerable burden on interstate pork commerce and should be invalidated.

This is an interesting case for at least two reasons. First, the Court rarely strikes down a state law simply because that law burdens interstate commerce. Typically there must be or is a discriminatory intent. Here, though, there is no such intent and the argument is based entirely on the burden imposed. Second, a burden rationale means that a small state like Rhode Island could pass an identical law but a large state like California cannot. This is an odd conclusion, which suggests to me that the whole notion that laws can violate the Dormant Commerce Clause based solely on their burden is wrong, or at least should not be expanded. Granted, you can evade this problem by saying that either any state can do something or none can, but if that is true that any state law that imposes a burden could be a problem because what if all 50 states do the same.