When the Supreme Court announced that it had decided to hear National Pork Producers Council v. Ross, Californians especially watched this case with a fairly critical eye because at stake is a law, named Proposition 12, that California voters approved in 2018 that requires pigs sold within the state not be confined in a cruel manner. The term cruel was defined to mean the enclosure must have enough space so the animal can stand up, turn around freely and lie down.
Before the law passed, pork producers outside California warned that this law would increase their costs for raising pigs and those increased costs would lead to higher costs of bacon. After Proposition 12 passed, the producers went to federal court in the Southern District of California and basically argued that this law is unconstitutional and unfair because this law regulates interstate commerce, which only the federal congress is permitted to do. The district court in Southern California ruled, and the Ninth Circuit affirmed, that the petitioner’s complaint does not state a legal claim.
Everyone acknowledges that Congress has plenty of power when it comes to regulating commerce; conservatives argue that the original meaning of the Commerce Clause has been twisted and perverted to grow the government in violation of what the Founders intended. The federal courts have previously recognized that a negative command to the States about economic regulation; that negative command is called the Dormant Commerce Clause and the Court noted on page 6 of the opinion that the Clause “effectively forbid[s] the enforcement of ‘certain state [economic regulations] even when Congress has failed to legislate on the subject.’”
The pork producers wanted the Court to adopt either one of two rules: that this law is in violation of the dormant commerce clause because of the “extraterritorial effects of the law.” If the Court didn’t accept the first rationale, the producers wanted the Supreme Court to order the lower courts to basically do a cost benefit analysis. Chief Justice Roberts dissent recognizes the prior precedent which requires “nondiscriminatory state regulations are valid under the Commerce Clause ‘unless the burden imposed on [interstate] commerce is clearly excessive in relation to the putative local benefits.’”
The Supreme Court ruled that because the Dormant Commerce Clause is about economic protectionism and discrimination favoring businesses within the State and the pork producers said their is claim is not about discrimination, their challenge to stop this law using the dormant commerce clause fails. Secondly, the Court recognizes that every state statute regarding economics has some extraterritorial impact. The Court didn’t accept the extraterritorial rule because the core reason for the dormant commerce clause doesn’t apply here.
The Court refused to order the courts to do a cost benefit analysis because the Commerce Clause doesn’t permit such a freewheeling power. Page 18 of the opinion reads, “And our cases have expressly cautioned against judges using the dormant Commerce Clause as ‘a roving license for federal courts to decide what activities are appropriate for state and local government to undertake.’” The Court also found that even as the pork producers read the prior precedents, the pork producers failed to allege enough facts to reach the stage where the courts would have to engage in a cost benefit analysis.
The Court said the pork producers are free to petition the federal congress and have them write a law that overrides the state law, but so far the opinion acknowledges Congress has not done what the pork producers would like.
A majority of the Court affirmed the dismissal of the petitioner’s claim while the dissent would allow for the petitioners to make their claim that the burden of this law is clearly excessive in comparison to the benefits that it brings. This case was not along ideological lines and the majority wasn’t present in the traditional sense. Two pluralities and several concurrences is what the justices gave.
Justice Kavanaugh’s concurrence/ dissent recognizes the practical realities of the decision today. In the absence of a federal law, upholding Proposition 12 will require pork producers all over the nation to comply with California law so producers can have access to the California market. Because of the size of the California market, it’s difficult for producers to leave the California market.
“California’s approach undermines federalism and the authority of individual States by forcing individuals and businesses in one State to conduct their farming, manufacturing, and production practices in a manner required by the laws of a different State. Notably, future state laws of this kind might not be confined to the pork industry.”
In this case, the issue is the health and welfare of animals and one state’s laws. Upholding this law, Justice Kavanaugh warns could get into issues like immigration, minimum wages, birth control pills etc. If upheld against all constitutional challenges, California’s novel and far-reaching regulation could provide a blueprint for other States.
Justice Kavanaugh closes by surveying some of the many other clauses that may reach the outcome that the pork producers seek.
Importantly, the law is still on hold due to litigation in State Court
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