Opinion: On Prop 12, read the arguments with eyes wide open

The Senate will soon decide a question with consequences for every farm family in America: whether one state gets to set farming standards for livestock raised in all other states.

It’s a consequential decision, and those who want California to keep that power know it.

Arguments against House farm bill language addressing this issue should be read with eyes wide open. Many are built on assumptions, predictions, worst-case interpretations and falsehoods presented as established fact.

This publication ran an op-ed by two New York University professors opposing Section 12006, or the “Save Our Bacon Act.” They described the provision as “hidden,” claimed it could nullify over 600 state laws, misstated what the Supreme Court held in the Prop 12 case, and largely ignored the constitutional problem Congress is attempting to solve.

The result was advocacy dressed as settled fact.

Consider the claim that “Harvard Law School” found S.12006 could nullify over 600 state laws.

The cited report was actually produced by the school’s Animal Law & Policy Program.

It does not identify 600 laws that would be invalidated, rather 600 laws the authors believe could be affected under an expansive reading of the legislation. That distinction matters. The report itself acknowledges “the full range and scale of effects is hard to predict.” A catalog of legal hypotheticals is not a prediction of outcomes.

The report also acknowledges Congress narrowed the language as the proposal evolved from the EATS Act to Save Our Bacon and, ultimately, S.12006.

S.12006 defines “production” as raising and breeding livestock and excludes movement. Critics nevertheless speculate that courts could interpret certain importation or disease-control requirements as falling within that definition. That is speculation about future litigation, not settled law.

Courts have long recognized states’ authority over health, safety, disease control and quarantine, and judges don’t assume Congress intended to displace those powers. The legislative record on S.12006 focuses on animal production practices and interstate commerce — not disease control or biosecurity.

Whether any particular law survives judicial scrutiny depends on facts, the statute and the courts. That is far different from claiming S.12006 would erase hundreds of state laws.

The Supreme Court claim is no stronger.

NPPC v. Ross found Proposition 12 did not discriminate against interstate commerce on its face — a narrow ruling on one specific legal theory. The Court declined to resolve whether Prop 12 imposed unconstitutional burdens under the Pike balancing test. Multiple opinions identified Congress as the institution that must decide where commercial lines are drawn.

The Commerce Clause is still part of the Constitution. The Court did not establish a sweeping right for states to impose their production standards on farms in other states as a condition of market access. S.12006 draws the line the Court left for Congress to draw: A state may govern farms within its borders; it may not govern farms in other states as a condition of market access.

That is one of federalism’s central functions: Federalism protects states from Washington. It also protects states from one another.

Doing nothing comes with a cost. If California can dictate how pigs are housed in Iowa, and Massachusetts can dictate how pigs are housed in North Carolina, the limiting principle quickly disappears. Other states can follow, each imposing its own production code on farms beyond its borders.

The Commerce Clause exists because the founders understood that danger. National commerce cannot function if every state projects its policy preferences onto other states’ farms, factories and supply chains.

The authors also invoke animal welfare. American Veterinary Medical Association — over 111,000 veterinarians — wrote to the House Agriculture Committee supporting S.12006. Their conclusion: Proposition 12’s housing mandates are “not scientifically based and have not been objectively demonstrated to reliably and consistently improve animal welfare.”

Likewise, American Association of Swine Veterinarians — over 1,300 veterinarians across 35 countries — has been clear that animal welfare policy must be “grounded in science and real-world expertise, not dictated by a patchwork of arbitrary state laws.”

There are reasons hundreds of farming, agricultural, veterinary and food affordability organizations support S.12006. They’ve read the legislation. They’ve read the Supreme Court opinions. And they understand the constitutional question at the center of this debate.

States possess broad authority to regulate production within their own borders. Congress possesses constitutional authority over interstate commerce. The line between those powers matters.

California made a choice for California. Section 12006 asks whether that choice now becomes the operating rule for farms across the country.

That is the critical question before the Senate.

Bryan Humphreys is CEO of the National Pork Producers Council.