The 2022 Supreme Court term has been much in the news, with decisions announced on abortion, the administrative state, and guns. Lost in the commentary and social media posts was the decision of the court to hear a case brought by the National Pork Producers and American Farm Bureau on Proposition 12, California’s attempt to regulate the livestock industry, not only in California, but all across our nation. 

I’ve written about the issue before, here and here. Several court cases have been launched against California’s new role as the primary farming regulator, but they have met with no success in federal courts in California, and the Supreme Court has, up until now, refused to hear any of the appeals.

Early attempts by opponents of Prop 12 were denied because of lack of standing in cases brought by state governments. Later cases have been denied because according to the 9th District court in California, Prop 12 does not run afoul of the Constitution’s Commerce Clause, since Prop 12 regulations treat California producers the same as pork producers in the rest of the country. Which is true enough, but ignores the fact that California’s pork industry is infinitesimally small, since the state is home to .02 percent of the US population of breeding pigs, while Californians consume 13 percent of the U.S. pork supply. 

Consequently, the overwhelming majority of the pork products enjoyed by Californians are produced outside the state. In a Loyola Law Review article discussing a 2018 Supreme Court opinion, James McGoldrick writes that the Dormant Commerce Clause, which is the result of nearly two centuries of litigation but is not found in the Constitution, can be summed as follows:…..”States may not impose undue burdens on interstate commerce. State laws that discriminate against interstate commerce face ‘a virtually per se rule of invalidity.’ State laws that ‘regulate even-handedly to effectuate a legitimate local public interest ... will be upheld unless the burden imposed on such commerce is clearly excessive in relation to the putative local benefits.’”

Prop 12 clearly fails that test, as the increased costs of complying with the rule will easily outweigh any “putative local benefits.” If the Dormant Commerce Clause means anything at all, California does not have the ability to regulate the pork industry from sea to shining sea. 

The Biden Administration, in the person of the Solicitor General, has filed a brief in opposition to Prop 12, making the case that the law does impose a burden on Interstate Commerce. I’m sure the plaintiffs in the case appreciate the support, but are probably surprised the Biden Administration, no enemy of government regulation, has weighed in on their case. One reason might be that the Biden Administration was laying down a marker for the eventual overturning of Roe v. Wade by the Supreme Court. Shortly after the Dobbs decision overturning Roe, the Biden Justice Department put out a statement saying that the FDA label for abortifacients takes precedence over attempts by states to regulate the interstate sale of the drugs on health and safety grounds. State laws banning the importation and use of abortifacients raise interesting Dormant Commerce Clause questions as well. And, to stretch my legal reasoning to the absolute breaking point, I imagine that Bayer, embroiled in seemingly endless litigation over Roundup, finds the Justice Department stance on the primacy of federal labels interesting as well.

Supporters of California’s attempt to regulate animal husbandry wax eloquent about the harms done to animal welfare by the pork industry. Consumers can make their own decisions on how pork should be raised, since the market offers pork grown under a number of different practices. Opponents of Prop 12 would do well to concentrate on the law and custom, which does not give California the right to send inspectors with tape measures into farms in Iowa and Missouri. 

California’s Governor Newsom was in the news recently, as he vacationed in Montana, one of the 22 states where California officials are forbidden to travel. It was easy to ridicule California’s clumsy attempt to export their state laws about discrimination to the rest of the nation. Even if gestation crates offend the sensibilities of a majority of consumers, California’s attempt to replace federal regulations are just as ridiculous. 

Blake Hurst is a farmer and greenhouse grower in Northwest Missouri.

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