The case is National Pork Producers Council v. Ross.
- Click here for the article.
A case about a California animal-welfare law became a springboard on Tuesday for the justices to explore how individual states might try to impose their moral views on their neighbors. As they considered the constitutionality of California’s Proposition 12, the justices wondered aloud how the case would affect hypothetical state efforts to ban products from out-of-state companies that employ unauthorized immigrants, forbid labor unions, or refuse to fund certain types of health care.
Approved by California voters in 2018, Proposition 12 imposes minimum requirements for the confinement of breeding pigs that produce uncooked pork products for sale in the state. Critics argue that the law violates the Constitution by regulating the pork industry outside of California, but over two hours of oral argument revealed that the justices were conflicted. On one hand, some justices expressed concern that striking down Proposition 12 would lead to the invalidation of a wide range of laws in other states. But on the other hand, several justices worried aloud that allowing Proposition 12 to stand would prompt other states to deploy their own laws to air what Justice Elena Kagan called “policy disputes” – leading to a scenario, Kagan cautioned, in which states are “constantly at each other’s throats.”
Proposition 12 prohibits the sale in California of pork products when the seller knows or should know that the meat came from the offspring of a breeding pig (also known as a sow) that was confined “in a cruel manner.” This means, among other things, that sows must have at least 24 square feet of living space.
Arguing for the National Pork Producers Council and the American Farm Bureau Federation, which filed a lawsuit challenging Proposition 12 in 2019, lawyer Timothy Bishop told the justices that “California wants to change farming methods everywhere.” Proposition 12, Bishop stressed, violates a doctrine known as the dormant commerce clause – the idea that the Constitution’s grant over interstate commerce to Congress means that states cannot pass laws that discriminate against interstate commerce. In particular, Bishop explained, states cannot condition in-state sales on requiring out-of-state businesses to operate in a certain way, as Proposition 12 does here.
- What is the Dormant Commerce Clause?
[The Congress shall have Power . . . ] To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes; . . .
Even as the Commerce Clause empowers Congress to pass federal laws, it has also come to limit state authority to regulate commerce. In contrast to the doctrine of preemption, which generally applies in areas where Congress has acted,1 the so-called dormant Commerce Clause may bar state or local regulations even where there is no relevant congressional legislation. Although the Commerce Clause is framed as a positive grant of power to Congress and not an explicit limit on states’ authority,2 the Supreme Court has also interpreted the Clause to prohibit state laws that unduly restrict interstate commerce even in the absence of congressional legislation—i.e., where Congress is dormant. This negative or dormant interpretation of the Commerce Clause prevents the States from adopting protectionist measures and thus preserves a national market for goods and services.3
The Supreme Court has identified two principles that animate its modern dormant Commerce Clause analysis. First, subject to certain exceptions, states may not discriminate against interstate commerce.4 Second, states may not take actions that are facially neutral but unduly burden interstate commerce.5
For more on the law in question:
- California Proposition 12, Farm Animal Confinement Initiative (2018).
Beginning in 2020, Proposition 12 was set to ban the confinement of calves (young domestic cows) in areas with less than 43 square feet of usable floor space per calf and egg-laying hens (chickens, turkeys, ducks, geese, and guinea fowl) in areas with less than 1 square foot of usable floor space per hen.
Beginning in 2022, Proposition 12 was set to ban the confinement of: breeding pigs and their immediate offspring in areas with less than 24 square feet of usable floor space per pig and egg-laying hens in areas other than indoor or outdoor cage-free housing systems based on the United Egg Producers' 2017 cage-free guidelines, which define cage-free housing as areas that provide 1.0 to 1.5 square feet of usable floor space per hen and allow hens to move around inside the area.
