Well, it was quite a week for farmers at the Supreme Court. By any measure, we hit .500. Which would get us in the hall of fame if we were baseball players, and isn’t bad for high stakes litigation.
The Supremes revisited the Clean Water Act, and narrowed the EPA’s jurisdiction over the nation’s farms. That’s a very good thing, although a couple of observations might be helpful.
The press coverage of the Sackett Case overwhelmingly emphasized the loss of the federal government’s ability to regulate water wherever two H2O molecules might gather. The stories failed to point out that the states may regulate what the federal government can not. In fact, the states’ power, should they choose to exercise it, is greater than that possessed by the federal government as long as the present Supreme Court holds sway.
Secondly, a new Supreme Court decision concerning the Clean Water Act means a new rule. It is a given that the Biden administration will write a rule stretching the Sackett decision to the breaking point and beyond, leading to yet more litigation.
No political or legal fight is ever over, which is why a law degree is perhaps the closest thing to a lifetime annuity that ever existed. Farmers and the groups that represent them are not through with this fight, and competing district courts will guarantee that the Supreme Court will have to address this issue again. But for now, the Sacketts can build their house and farmers can plow without fear of the Corps of Engineers. That’s a very good day for agriculture.
Farmers lost the Pork Producers v Ross case, meaning that California’s Proposition 12 will continue to govern how pork is produced in the rest of the country. The decision was split and more than a little confusing. Which was to be expected, I suppose. The Pork Producers rested their argument on a series of cases that have established something called the Dormant Commerce Clause. The trouble with the Dormant Commerce Clause, is that it doesn’t appear in the Constitution. (The word Dormant is a clue.) So, originalists like Justice Thomas, who might be expected to defend free and open trade amongst the states, are convinced that the Constitution is silent on state laws like Prop 12.
In his majority opinion, Justice Gorsuch, who is no fan of the Dormant Commerce Clause, said that the plaintiffs failed to make the case that the California law was intended to discriminate against pork producers in the rest of the country.
Of course, as the National Pork Producers Council pointed out, since almost all of the pork Californians eat is produced elsewhere, most of the costs that the new production methods require will be borne by pork producers outside the state. Gorsuch may feel comfortable that he knows the mind of California voters who overwhelmingly approved Proposition 12, but pork producers in Iowa faced with the decision of whether to abandon the largest market in the country for pork or invest in extensive capital improvements to meet the California rules don’t much care whether the trigger was pulled with actual malice or not. They just have to decide how to dodge the bullet.
Gorsuch went on to say that the law can’t be overturned by the court because the court couldn’t sort out the costs and benefits of the law. Which I’m not sure is totally true. Consumers already have the choice of buying pork that is raised in a manner that would qualify for sale under Proposition 12. That pork typically sells at a premium, and I’m sure that any competent economist could model what consumers are actually willing to pay for pork raised in that manner. That would be, it seems to me, a very rough proxy for the “benefits” of Proposition 12. The Pork Producers would be more than willing to supply an estimate of the costs of the law, and in fact did so in their arguments.
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Voters in California may not have chosen to purposefully discriminate against pork producers in Iowa, but they certainly discriminated against consumer choice and low-income grocery shoppers.
Ah well, unlike the Clean Water case, which almost guarantees further litigation, this matter is settled. So, the only answer will be Congressional action to prevent laws like Proposition 12. In fact, in more than one of the opinions written about the case, the Justices seem to be inviting Congress to act.
Given the overwhelming vote for Prop 12, I’m not sure a majority of Congress will be willing to weigh in on this subject. Or at least, not until enough states pass their own version of Prop 12, expressing their strongly held views on any number of production practices on products not produced in their state.
Perhaps Missouri voters would like to opine on products made with slave labor or goods that use scarce Western water resources, or any of a number of production practices that aren’t important to Missouri producers. The opportunities are legion, and the result would be a reminder that all of us benefit from free and open trade between fellow Americans.
Blake Hurst is a farmer and greenhouse grower in Northwest Missouri.
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