California recently added to its no-travel list. There are now 17 states California officials are forbidden to travel on state business because those states have laws that don’t pass muster in the eyes of California’s ever vigilant hall monitors. 

In two initiatives passed by California voters in 2008 and 2018, California has placed restrictions on out-of-state producers of agricultural products, barring the import of animal products produced in facilities that don’t meet California’s requirements on animal housing. 

In order to enforce the law, California inspectors will have to travel across the country, tape measure in hand, to ensure pigs are raised in barns that meet California pig housing requirements. The problem for California is that many of those pig houses are in states where California officials can no longer travel. You can see the challenge. As farm states realize that they can free their citizens from California regulators by the simple expedient of passing laws that Californians dislike, the number of states off-limits to our friends from the west would be likely to increase.

California has recognized that dilemma, and has exempted inspectors from their no travel restrictions. It will be interesting to see how states react. No California bureaucrats for multi-state conferences in fancy resorts, but hundreds of Californians looking for rogue pig farmers. Seems like any self-respecting state would gently urge Californians to keep their regulators at home, as long as California forbids travel that might actually benefit those states.

Farmers and the states where they live have mounted legal challenges to the initiatives, and although at least one of those challenges is still active, the courts have so far refused to overturn the California statutes. In the first round of cases, the 9th Circuit Court threw the cases out because the states lacked standing. In a case brought against Proposition 12, the second of the California initiatives, the Supreme Court recently refused to review the case. Presumably, the Court agreed with the 9th Circuit, which found that the California law passed constitutional muster because the regulations treat California producers the same as out of state producers.

The petitioners had based much of their argument on the Dormant Commerce Clause, a legal doctrine which courts have inferred from the Commerce Clause of the U.S. Constitution. According to Justice Anthony Kennedy:

“The central rationale for the rule against discrimination is to prohibit state or municipal laws whose object is local economic protectionism, laws that would excite those jealousies and retaliatory measures the Constitution was designed to prevent.” 

As the 9th Circuit pointed out, if a state law treats in state and out of state producers the same, it provides some protection against Dormant Commerce Clause sanction. But that protection only goes so far, and if a state law has more than an “incidental” impact on businesses outside the state, it may run afoul of court decisions regulating interstate commerce.

Proposition 12 covers pork production, and California imports nearly 99% of the pork consumed in the state. So, 99% of the incidence of the regulations will fall on out of state producers. Not only that, but because of the way pork is processed, it will be impossible to segregate pork chops headed for California from sausage from the same pig that will be consumed in a Waffle House in South Carolina. Pork is commingled, handled by dozens of processors, and packaged and marketed by thousands of other businesses.

California accounts for some 13% of pork consumption in the U.S. It is a certainty that the pork industry will be unable to segregate pork headed for California. The law goes into effect at the beginning of 2022, and, according to a brief filed in the case, packing houses will require substantially all pork producers to be in compliance with the law.

But the “incidence” of the law has, so far, made no difference to the courts. Originalists, including Justice Thomas, think there ought not be a Dormant Commerce Clause at all, maintaining that the regulation of interstate commerce lies solely with Congress. So, although the Dormant Commerce Clause has been around since the 1820’s, there are at least some conservative jurists who would do away with it completely. When combined with the voting bloc on the court that never met a government regulation that it didn’t like, the state of California is likely to be successful in its hostile takeover of federal regulation.

California is now in charge of pork production everywhere.

The blunt instrument of initiative petition often leads to unanticipated results. The only way for pork producers to meet the housing requirements in the time allotted is to reduce the size of their herds. There isn’t time to expand barns and change production methods between now and the end of the year. Pigs will meet an early demise as the deadline nears, and the voters of California who thought they were striking a blow for animal welfare will be responsible for the untimely slaughter of thousands of pigs.

In a more perfect world, Congress would act, because “jealousies and retaliatory measures” noted by Judge Kennedy are certainly in our future.

Missouri has no film industry, Iowa an extraordinarily small number of wine producers. Neither state grows an appreciable amount of produce, but both raise a lot of hogs. It would seem simple for pork producing states to regulate wine, movies, and iceberg lettuce in ways that treat midwestern producers the same as California producers, thereby meeting the requirements of the 9th Circuit, while still inconveniencing California film producers a great deal more than any movie producers who might choose Peculiar, Paris, or Halfway, Missouri as home.   

California’s economy is huge, and “jealous” measures will be largely ignored by the state as legislators and voters there move on to other fronts in the state’s continuing efforts to improve the moral fiber of Californians and fellow Americans, ready or not.

Arguments for free trade amongst the states are likely to be no more popular with either party than the vanishingly small and decreasing number of people who advocate for unencumbered trade between countries. State regulation of out of state businesses and farmers in other states is likely to increase rapidly, and we will all be poorer as a result. 

About the Author: Blake Hurst is a farmer and greenhouse grower in Northwest Missouri.

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