A voter-ratified law in California banning the sale of pork from hogs raised in spaces smaller than industry norms is unconstitutional, an industry group told the Supreme Court on Oct. 11.
The case is important because whatever ruling the court issues could have implications reaching well beyond agricultural law. State-level energy and climate regulations have also been challenged under the so-called dormant commerce clause, or negative commerce clause, in the U.S. Constitution, which prohibits states from enacting legislation that discriminates against or excessively burdens interstate commerce.
The initiative establishes “minimum space requirements based on square feet for calves raised for veal, breeding pigs, and egg-laying hens and bans the sale of (a) veal from calves, (b) pork from breeding pigs, and (c) eggs from hens when the animals are confined to areas below minimum square-feet requirements.”
Separately, the Humane Society of the United States, a respondent in the case, said in a statement released while the hearing was underway that “states have the right to keep immoral and unsafe products out of their markets, including pork from cruelly confined pigs.”
“As we await the Court’s decision, we applaud the many retailers and major pork producers who are already meeting consumers’ increasing demand for safer, more humane pork,” Humane Society CEO Kitty Block said.
The case is National Pork Producers Council (NPPC) v. Ross, court file 21-468. Respondent Karen Ross is secretary of the California Department of Food and Agriculture. The NPPC, the petitioner, describes itself as an agricultural organization representing the interests of the $26 billion-per-year U.S. pork industry. Among its members are pig farmers, as well as the entire pork chain and associated businesses, such as veterinarians, pork packers and processors, and other allied businesses that serve the industry. The Biden administration is siding with the NPPC in the case.
The hearing ran 133 minutes, almost double the allotted 70 minutes.
Justices expressed concerns that allowing the California law to stand would allow states to regulate farmers outside their borders and promote disunity at the national level. At the same time, they wondered aloud if striking down the law would make it difficult for states to pass new health and welfare measures. They also discussed whether the best remedy would be to simply remand the case to a lower court.
Timothy S. Bishop, attorney for the NPPC, told the court during oral arguments that Proposition 12 “violates the Commerce Clause ... because it’s an extraterritorial regulation that conditions pork sales on out-of-state farmers adopting California’s preferred farming methods for no valid safety reason” and “because it burdens interstate commerce for no local benefit.”
“California wants to change farming methods everywhere to ‘prevent animal cruelty by phasing out extreme methods of farm animal confinement. That confinement occurs in other states—California imports 99.9 percent of its pork,” Bishop said.
“Even when a law is triggered only by in-state sales, a state may not project its legislation into other states in that way. To do so infringes the territorial autonomy of sister states, and it impedes our national common market.
“No other state makes its farmers house pigs the way that California does, and very few farmers do.
“If Proposition 12 is lawful, New York can say that pigs have to have 26 feet of space and send inspectors into farms to police compliance as California does. Oregon can condition imports on workers being paid the minimum wage, and Texas can condition sales on the producer employing only lawful U.S. residents. And at that point, we have truly abandoned the Framers’ idea of a national market.”
Justice Clarence Thomas asked Bishop when “an intra-state regulation [becomes] impermissibly extraterritorial.”
Bishop said there’s “no doubt” a state could ban a product, even pork.
“It can ban lumber to be used in building houses. What it can’t do is condition sales in the state on a business in another state adopting particular methods of production. That tramples on the other states’ rights,” he said.
Justice Neil Gorsuch suggested that Bishop was urging the court to adopt “a freewheeling balancing test ... to protect an economic liberty rather than defer to state regulation on health and safety.”
“The Commerce Clause is intended to prevent balkanization,” Bishop replied. “It was intended to stop ... interstate strife over these sorts of rules.”
California Solicitor General Michael Mongan said in passing the state law, “California voters chose to pay higher prices to serve their local interest in refusing to provide a market to products they viewed as morally objectionable and potentially unsafe.”
“The Commerce Clause does not prohibit that choice. Prop 12 is not protectionist or discriminatory,” Mongan said. “Prop 12 places no restrictions on how out-of-state businesses produce pork for sale in other states, and petitioners’ own allegations show that producers can continue selling pork to other states using different production methods.”
Justice Elena Kagan told Mongan that “we live in a divided country, and ... the balkanization that the Framers were concerned about is surely present today.”
“Do we want to live in a world where we’re constantly at each others’ throats and ... Texas is at war with California and California is at war with Texas?” she asked.
Mongan replied, “I think that there is and should be a constitutional check on that, which is that a state regulation of a product has to be sufficiently tied to the actual process of producing that product.”
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