'Pork Federalism' is No Federalism
It is not every day that pigs can teach us a valuable lesson about the checks and balances preserved in our constitutional democracy. But with the confusion surrounding the upcoming Supreme Court case of National Pork Producers Council v. Ross, today might just be the day for that porcine legal demonstration. Full disclosure: I have eaten more pulled-pork sandwiches that I care to admit, I was raised on them in the South, and I would contend that Eastern North Carolina, apple-vinegar-based sauce is the best. But that does not speak to the issue that has been briefed right now before the highest court in the land.
By way of background, in 2018 California voters overwhelmingly enacted Proposition 12, which prohibits sales — within California — of specified animal products if said animals were raised under some rather extreme forms of abusive confinement. In doing so, California joined more than a dozen states that have enacted similar laws.
To be clear, the law does not in any way seek to control out-of-state behavior like the many barbecue-loving states in the South; it only regulates the sale of products within the State of California. The pork industry however, filed suit, claiming that California law was unconstitutionally crossing state borders and regulating interstate commerce in the agricultural market, because out of state producers would have to change the way they allegedly tortured pigs if they want to keep selling their products in the State of California. According to the pork industry, such a burden necessarily violates the so-called “dormant Commerce Clause,” i.e. the implicit constitutional prohibition on a state passing legislation if it has the practical effect of excessively burdening interstate commerce.
The District Court dismissed the original lawsuit, correctly explaining that the sales prohibition in question only applies to ‘in-state conduct’ — not, as the pork industry would have it, to conduct that takes place ‘wholly outside’ of California. The pork industry appealed, however, but they lost again.
This time, the Appellate Court was even more explicit, acknowledging that while “as a practical matter, certain pork producers will opt to make changes to their out-of-state production or distribution methods in response to Proposition 12, such “indirect,” “upstream effects” cannot on their own, render a law invalid under the dormant Commerce Clause. Now the “hog honchos” are headed to our nation’s highest court for one final shot at stopping California state lawmakers from passing laws in… the state of California.
There are any number of reasons why the pork industry should and likely will lose yet again. For example, in their brief to the Supreme Court the National Pork Producers Council claims that it will be “impossible” for them to segregate their operations and produce California-specific products that comply with Proposition 12. They had to make that argument about impossibility, because the Appellate Court had already explained that “alleged cost increases to market participants and customers did not qualify as a substantial burden to interstate commerce for purposes of the dormant Commerce Clause.” But what they could not do was explain why it would be “impossible,” or even difficult, or even, for that matter, costly in today's highly technological environment, to simply trace the supply chains to California from the numerous providers that have already confirmed that they do meet California standards. But from a conservative perspective there are two main reasons why the pig petitioners should fail: Federalism, and Free Markets.
The 10th Amendment of the U.S. Constitution says that “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” Under our federal system, States must be free to exercise their lawful sovereign powers, which can and should include the ability to regulate the sale of products within their own borders.
The pork industry’s attempt to get around this is paper thin: Their brief cloaks itself in a hide of righteousness by appealing to ‘horizontal federalism,’ i.e. they claim that they in fact are the ones protecting our federalist system by ensuring that California does not make decision that impose burdens on other states. But don’t be distracted by the legalistic lipstick they have smeared on; at the end of the day the pork industry should lose because their underlying argument is still a federally “piggish power grab.” Finally, the existence of competing market options in different states across the country allows free market principles of supply and demand to govern without added regulation.
As a conservative that values states’ rights and free markets, when the industry inevitably loses this latest and final appeal, I for one will still be the biggest fan of the pork’s industry’s products, I am just not a fan of their current jurisprudence.
Miles Terry is a former senior counsel and contributor to the American Center for Law and Justice.
