SCOTUS Zeroes in on Key Prop 12 Issues
Justices asked whether Prop 12 could lead other states to impose their moral values beyond their borders
U.S. Supreme Court (SCOTUS) justices voiced worries about the implications of a new California humane-pork law, Proposition 12, asking whether it might open the way for other states to try to impose their moral values beyond their borders. Justices suggested they might let a pork-industry challenge to the law go forward without issuing a definitive ruling on the measure’s constitutionality. If so, that could mean allowing a pork industry-backed lawsuit challenging the law to play out in the lower courts rather than rule on its constitutionality. A decision in the case is expected sometime next year.
Background. The California law bans the sale of pork within the state unless pregnant pigs are allowed at least 24 square feet of space and the ability to stand up and turn around in their pens. The measure was approved with more 68% of the vote as part of a 2018 ballot initiative known as Proposition 12. The National Pork Producers Council and the American Farm Bureau Federation, which sued in 2019, say the measure violates the so-called dormant commerce clause, a doctrine that says the U.S. Constitution limits the power of states to regulate commerce outside their borders without congressional authorization.
Some highlights of Tuesday’s SCOTUS hearing:
- U.S. Deputy Solicitor General Edwin Kneedler, appearing as a friend of the court supporting NPPC and AFBF, said, Proposition 12 is invalid because it “imposes a trade barrier based on conduct beyond California’s borders. It fails to respect the autonomy of California’s sister states. It invites conflict and retaliation and threatens the balkanization (or fragmentation) of a national economic union.” He added: “Taking the allegations in the complaint as true, Proposition 12’s sales ban is invalid under Pike because it imposes a substantial burden on interstate commerce without serving a legitimate local public interest. California’s disagreement with the manner in which pigs are housed in other states is not a cognizable local interest of California that could support the imposition of such a ban. A state’s interest in protecting the health and safety of its residents can support a state law if that local interest is substantial and not outweighed by its effects on commerce.”
Kneedler said that if Proposition 12 were upheld, it would set a precedent for one state to regulate actions in another. “I think there would be a concern about inviting state laws regulating conduct in another state and the fact that it’s done through sales, as opposed to an outright prohibition. … What we have here is basically an attempt by California to regulate what is happening in other states. And as I said, that is a proposition that, once unleashed, would be difficult to contain,” he said.
When Justice Samuel Alito said the law applies to pork that is shipped into the United States from Canada and Mexico and asked if the government has any position on whether regulating that is consistent with federal treaty law. Kneedler responded: “I don’t know the answer to that. I don’t know that the government has taken a position on that,” but he said trade agreements (such as the USMCA) are “examples of concerns about trade restrictions that are not price-based. And so, we think the Commerce Clause also should not be price-based for similar reasons.” - Alito asked: “Is California unconcerned about all this because it is such a giant, you can wield this power; Wyoming couldn’t do it, most other states couldn’t do it, but you can do it? You can bully the other states, and so you’re not really that concerned about retaliation? Is that part of your position?” Michael Mongan, the solicitor general in San Francisco who represented the state, replied: “No, Your Honor, that’s certainly not how I would put it. I think that this is a concern held by California and many other states, including states who are pork-producing, like Michigan and Illinois, who filed an amicus brief on our side, and it goes to core features of state sovereign authority to control the — the products that are sold within our borders.”
- Mongan, arguing on behalf California, said Proposition 12 does not place restrictions on how out-of-state businesses produce pork for sale in other states. However, the NPPC has argued that U.S. pork producers serve 40 million consumers — or 15% of the U.S. pork market — in California, and to continue to do so under Proposition 12 would mean producers in other states would need to change their production methods. “If (a state) adopt(s) a regulation that is just too burdensome to comply with, then the industry will stop serving a state and the state has to decide, ‘Do we want a regulation or do we want pork?’” Mongan said. He added the core of Proposition 12 is “state sovereign authority to control the products that are sold within our borders.”
- Speaking on behalf of the Humane Society of the United States, Jeffrey Lamken of law firm MaloLamken L.L.P. in Washington, said Proposition 12 does not interfere with interstate commerce and instead is about “the sale within California of pork that Californians find immoral and unsafe, regardless of where it originates.” Justice Ketanji Brown Jackson said that if this were a universally held idea, the market would have already accounted for it elsewhere. “I don’t know what Iowa actually believes, but assume we have a state that thinks it’s not immoral to hold their sows in a particular way. To what extent does California get to control what Iowa does with respect to the housing of its pork?” she asked Lamken. “It does not,” Lamken said, “but the question in this case is who decides the pork that appears on California grocery shelves that’s purchased and consumed by Californians to say that when another state has a lesser standard, it decides what appears on California grocery shelves?”
In his rebuttal, Bishop said allowing Proposition 12 to stand would create conflict between states. “If California can condition sales on its moral or policy views, and every other state can do the same, we’ll be back to the pre-convention picture where you have balkanized markets and discord among the states,” he said. - Justice Neil Gorsuch said, “We’re going to have to balance your veterinary experts against California’s veterinary experts, the economic interests of Iowa farmers against California’s moral concerns and their views about complicity in animal cruelty. Is that any job for a court of law?” Congress could resolve the questions, Gorsuch said. Gorsuch labeled NPPC’s arguments as “enshrining non-textual economic liberties into the Constitution” to protect the way much of the industry raises pork.
- Commerce Clause: The Commerce Clause grants Congress the power to regulate trade among the states and restricts states from regulating commerce outside their borders, except for matters related to public health and safety. The Pike balancing test refers to Pike v. Bruce Church, a case from 1970 in which the Supreme Court found that, to be constitutional, the burdens a state or local law imposes on out-of-state commerce must not be clearly excessive in comparison to the local benefits.
Tim Bishop of law firm Mayer Brown L.L.P. in Chicago represented the petitioners. He said the Constitution’s Commerce Clause should prevent California — or any other state — from issuing production mandates outside their own borders. “The Commerce Clause is intended to prevent balkanization,” Bishop said, “and it was intended to stop interstate strife over these sorts of rules.”
“We have a 450-paragraph complaint supported by declarations that says that there are immense costs involved for the industry, immense harm to pigs that will result from complying with Prop 12, and no safety benefit,” Bishop said. “You have a dozen pork farmers in the court today who would testify at trial that they are being forced by distributors and packers and retailers to comply with Prop 12 in a way that they think kills pigs that harms their workers. That makes it extremely difficult for them to operate their farms in the way that they think is efficient and safe for workers and pigs.”
Gorsuch asked Bishop whether he thought it would be permissible for a state to ban the sale of pork outright rather than dictating how the pork should be raised. “Say California could ban pork, why doesn’t that affect interstate commerce in some impermissible way?” Gorsuch asked. “Well, it does affect it, but the difference between a ban is that seems, to us, to be much commonplace and they’re much more in-state focused,” Bishop said. “All they do is reduce the size of the market for out-of-state businesses. That is very different from conditioning a sale on the precise way that an out-of-state business conducts itself.” - Justice Elena Kagan asserted that the reason out-of-state businesses care about changing production methods is that other production methods are more costly. “And if you’re thinking about costs, California banning your product would be the greatest cost of all,” Kagan said. But Bishop said this issue is about more than just cost of production. “We’re not only talking about costs, Justice Kagan, we’re talking about the impact on the state where the business is located,” he said. “Iowa has 65,000 sow farms. It has a very great interest in how those sows are housed.”
- Justice Ketanji Brown Jackson, in a question for Lamken, asked to what extent does California get to control how Iowa houses its sows? Why can’t California solve this problem some other way — for example, by segregating Iowa’s pork or requiring it to be labeled as coming from conditions to which the state objects? Why does California get to ban it?
- Kagan offered a possible solution to the dilemma facing the court. She noted that the dispute came to the Supreme Court before a trial on the merits, so at this early point in the litigation, courts must accept the challengers’ allegations in their complaint as true. At this stage, she stressed, even if a state’s moral interests in a law are something that courts should consider, the challengers’ complaint “alleges great costs to the pork industry.” Because the case is still at a preliminary stage, she said, isn’t the appropriate step for the court to send the case back for the lower court to balance the burden that Proposition 12 imposes on out-of-state commerce against the benefits to California?
