Want to kick-start a political brouhaha? Here’s one way to do it: Pass a law in a red state that affects the citizens of a blue state, or vice versa. Folks in the affected state will be outraged, most people will shake their heads, and a few may even sue.
It happens all the time. Here’s a sampling of state regulations that have made headlines in recent months: Vermont has required food producers that use genetic modification to disclose this fact on the label of any food sold in that state, even if the producer has no facilities in Vermont. Minnesota has prohibited the purchase of electricity that was generated at new coal-fired power plants, even if those power plants are located outside Minnesota. Colorado has legalized marijuana, prompting a lawsuit from neighboring states frustrated with an uptick in drug trafficking within their own borders.
California, not to be outdone, has irked its sister states on a regular basis. One recent California law requires that all eggs sold in that state must come from hens that had enough room to spread their wings in their cages, even if those cages were located outside California. Another regulation requires out-of-state fuel producers to meet in-state carbon-emissions standards if they want to sell their products in the Golden State, which effectively ensures that California—not Congress or the EPA—sets national emissions standards. Yet another law prohibits the sale of foie gras in California if the meat was sourced from birds that were force-fed, a process common in other states. Unsurprisingly, each one of these regulations has prompted a federal lawsuit challenging the state’s ability to control conduct outside its borders.
We have a name for this phenomenon: spillovers. And spillovers are all but universally condemned. It’s not hard to see why. It is unsettling when one state’s policies stretch beyond its territories. It prevents citizens of the affected state from making their own decisions and adopting their own policies. No one wants to live under someone else’s law, after all. If anything, it seems illegitimate for one state’s citizenry to tell another’s what to do. The value of self-rule is so deeply ingrained in our democratic culture that you might think that no good can come from spillovers.