That is sometimes a sign, as here, that none of the options open to the Justices are particularly appetizing either from a doctrinal or a broader policy standpoint.
If you set aside the fact that this particular case is about California and improved animal welfare standards, you have the fact that State A is passing legislation that may have significant practical nationwide effects, even though the vast majority of the relevant transactions have nothing to do with State A. That’s anti-democratic and not good federalism. And anyone who likes it when State A is California should consider that it may be Florida or Alabama next time.
But a broad anti-regulatory interpretation allows a race to the bottom, in which a single state can push its own preferred low standards against the other 49. And it bulldozes the state’s right to control what happens within its borders. Are most people here old enough to remember when most credit card companies were in South Dakota due to favorable usury and other laws?
Finally, having one or more federal judges weigh the state’s legitimate interest in enacting a regulation against the effects to transactions not involving that state poses its own problems. That’s really hard to do in a principled way that respects the judicial role and doesn’t merely impose the judge’s own ethical views on the litigants.
That is sometimes a sign, as here, that none of the options open to the Justices are particularly appetizing either from a doctrinal or a broader policy standpoint.
If you set aside the fact that this particular case is about California and improved animal welfare standards, you have the fact that State A is passing legislation that may have significant practical nationwide effects, even though the vast majority of the relevant transactions have nothing to do with State A. That’s anti-democratic and not good federalism. And anyone who likes it when State A is California should consider that it may be Florida or Alabama next time.
But a broad anti-regulatory interpretation allows a race to the bottom, in which a single state can push its own preferred low standards against the other 49. And it bulldozes the state’s right to control what happens within its borders. Are most people here old enough to remember when most credit card companies were in South Dakota due to favorable usury and other laws?
Finally, having one or more federal judges weigh the state’s legitimate interest in enacting a regulation against the effects to transactions not involving that state poses its own problems. That’s really hard to do in a principled way that respects the judicial role and doesn’t merely impose the judge’s own ethical views on the litigants.