California wants to force out of state pork producers to stop confining pigs to tiny holding spaces. ... [+]
Tomorrow the Supreme Court will hear oral arguments on one of the most important cases of the year that you've probably never heard of: National Pork Producers Council v. Ross. The case will decide how much power big, liberal states like California have to ban products from other states that violate Californian policies. It will have a huge impact on issues such as the environment, climate change, and animal protection.
This case concerns California's Proposition 12, which is meant to prevent cruel conditions for pigs. As the PBS News Hour explains it: "At most commercial hog farms, pregnant sows are kept in 'gestation crates' that measure 2 feet by 7 feet – enough room for the animals to sit, stand and lie down, but not enough to turn around." Proposition 12 requires such crates to be about double that size. Pork producers who fail to comply won't be able to sell their product in California, which represents about 15% of the market for pork products.
The pork industry claims the California law is unconstitutional and the Supreme Court will be hearing their arguments on October 11th. The case hasn't gotten a lot of publicity, probably because it turns on a pretty obscure constitutional doctrine called the "Dormant Commerce Clause." The Constitution explicitly gives Congress the power to regulate interstate commerce. The idea behind the Dormant Commerce Clause doctrine is that this part of the Constitution implicitly denies states the power to interfere with interstate commerce. The California market for many products is so large that if California is closed to products that don't meet certain standards, this will force all the makers of those products to bend to California's will. The pork industry argues that this interferes with interstate commerce and therefore violates the Dormant Commerce Clause.
This case will be an important test of how anti-regulatory the current Supreme Court is. Previous case law establishes that Proposition 12 violates the Dormant Commerce Clause if it is a "protectionist" law, meaning that it is designed to protect California businesses from outside competition. The law certainly isn’t protectionist. California doesn't have much of a local pork industry to protect—that's why it imports virtually all of its pork. Also, the pro-Proposition 12 advertising emphasized animal welfare, not protecting California businesses, so there is no evidence that this is intended to be a protectionist law.
If Proposition 12 isn't protectionist, then it "will be upheld unless the burden imposed on such commerce is clearly excessive in relation to the putative local benefits." Surprisingly, the Biden administration wants the Court to strike down the law, arguing that California lacks any "legitimate local interest" in the welfare of animals outside of the state. If the Court accepts that argument it would be a major setback for the ability of states to enforce humane legislation. Could states ban the import of products made with child labor from other countries? Could they ban cars that didn't meet certain gas mileage requirements?
While it is certainly true that the welfare of children matters more than the welfare of pigs, the logic of the Biden Administration seems to be that what happens outside of California is none of its business. If the Court accepts that argument, it could have sweeping results.
