Justices asked lawyers for agriculture groups challenging a California law about treatment of pigs whether they are overstating the effect on interstate business, but also pressed the California solicitor general to explain why the law wouldn’t encourage other states to use commerce to advance political views.
The Supreme Court justices heard arguments Tuesday in the National Pork Producers Council and the American Farm Bureau Federation’s challenge that California’s voter-approved Proposition 12 upends a regulatory balance that justices established 52 years ago.
Edwin Kneedler, the deputy U.S solicitor general, urged the court to overturn a 9th U.S. Circuit Court of Appeals decision upholding Proposition 12, a ballot measure approved in 2018 that requires pork products sold in California to be from pigs born to an adult female kept in a 24-square-foot space under conditions that allow the sow to turn around without touching her enclosure.
The measure said the requirement was a matter of health, food safety and morality in protecting the animals from being confined in gestation crates that limit movement. The National Pork Producers Council argues most hog operations would have to make extensive and expensive changes to meet the requirements. California has less than 1 percent of the nation’s breeding pigs, but consumes 13 percent of pork.
Both sides have supporters for their arguments among attorneys general and prominent industry, animal rights, political and other groups.
Two legal questions
The justices looked at two questions raised by the case. The first question focused on whether Proposition 12 violates the doctrine of the dormant commerce clause, an implicit prohibition in the Constitution’s commerce clause against state laws that are protectionist and interfere with the conduct of interstate business. The commerce clause gives Congress broad authority to regulate business among states.
The other question asks if the law passes muster under the balancing of costs test the Supreme Court established in the 1970 case of Pike v. Bruce Church, which requires a state’s interest in setting a regulation to outweigh the costs that would be imposed on commerce.
Timothy S. Bishop, lawyer for the pork producers and the farm bureau, said California was trying to regulate pig operations in other states by using the market power of its 39 million people.
Justice Clarence Thomas asked if California could exclude out-of-state wood products by requiring that houses not be made entirely of wood. Thomas said such a standard would have economic effects on states with lumber industries.
“A state may ban a product. It could ban pork. It could ban lumber to be used in building houses. What it can’t do is condition sales in the state on a business in another state adopting particular methods of production. That tramples on the other state’s rights,” Bishop said.
Justice Ketanji Brown Jackson said it seemed that Bishop was shifting his clients’ arguments.
“I thought your briefs were asking us for a rule that says that a state may not enact laws that have the practical effect of controlling conduct outside the state’s borders. That’s different, I think and maybe I’m wrong, than the rule that you’re now saying, which is that a state law that conditions sales on an out-of-state business operating a particular way is prohibited,” Jackson said.
Bishop said state laws that tie sales to out-of-state businesses changing their operations are a substantial burden on interstate commerce. He said Proposition 12 violates the commerce clause by setting conditions for in-state sales and risks opening the door to states imposing philosophical views on other states.
California Solicitor General Michael J. Mongan told the court Proposition 12 falls within acceptable state actions to set manufacturing and production standards for goods sold within its borders.
“States routinely enact that kind of law. Justice Barrett, at least 24 states have done so to serve local moral interests,” Mongan said, addressing Justice Amy Coney Barrett. “Prop 12 places no restriction on how out-of-state businesses produce pork for sale in other states.”
He said opponents of the law who believe it raises policy concerns can go to Congress to address those concerns directly because it has authority to regulate under the commerce clause.
“In this case and what will often be the case is that these laws are motivated by in-state local interests. Here, there are two interests reflected in the ballot materials. One of them is a local interest in the state not wanting its stores and markets to be complicit in selling a product which a substantial majority of the voters view as immoral, and many consumers and retailers, as evidenced by the shift to crate-free pork,” Mongan said.
Thomas asked if moral grounds could extend “to a state that has, for example, different political views on certain issues that are important to your voters?”
Mongan said if a state barred goods from another state on the grounds of policy differences, that would be discrimination and amount to an embargo, which would raise commerce clause issues.
Justice Elena Kagan said she worried that California’s law could encourage other states to incorporate policy disputes into state laws and regulations.
“Mr. Mongan, a lot of policy disputes can be incorporated into laws like yours. California could do laws that you have to be pro-labor unions. Texas could do laws that you have to be anti-labor unions. You could have states making immigration policy through these laws,” Kagan said.
“You could have states doing a wide variety of things through the mechanism of saying, unless you comply, you can’t sell goods in our market,” she said.
Mongan said there is a constitutional check on such warring among states. He said a state regulation of products has to be tied to the actual process of producing a product.
Barrett asked why the link between a state setting conditions on production would prevent more far-ranging restrictions such as a law not to buy pork from companies that don’t require their employees to be vaccinated or companies that don’t fund gender-affirming surgery.
Mongan said state restrictions like those would be problematic because they would be tied to a company’s policies and activities but not focused on the goods entering the regulating state.
The case is officially known as the National Pork Producers Council et al. v. Karen Ross. Ross is the secretary of the California Department of Food and Agriculture. The court is expected to make a decision next year.
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