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California rules for pig confinement put justices in a bind

Differing pork regulations have forced the Supreme Court to examine how one state’s laws can impact the rest of the country. 

WASHINGTON (CN) — Focused on animal welfare standards expanded by California voters, the Supreme Court appeared to struggle Tuesday with drawing a line between the autonomy states have to govern and their role in a connected nation. 

“To what extent does California get to control what Iowa does with respect to the housing of its pork,” Justice Ketanji Brown Jackson asked in a lengthy oral argument that ran for over two hours. 

While the case before the high court directly concerns regulations on pork meat sold in California, the nation could see a domino effect. Aware of possible unintended consequences, the justices seemed wary of reaching a broad ruling that impose one state's regulations on other states. 

“We live in a divided country, and the balkanization that the framers were concerned about is surely present today,” Justice Elena Kagan said. 

She continued, “Do we want to live in a world where we’re constantly at each other's throats and, you know, Texas is at war with California and California at war with Texas?”

The case stems from Proposition 12 in California, a voter-approved campaign to prevent animal cruelty and protect the health and safety of consumers from 2018. Proposition 12 says pigs whose meat is sold in California must be born to sows housed in 24-square-foot pens, allowing them to turn around without touching the enclosure. 

While the law does not explicitly regulate pork meat outside California, pork producers claim the law has ripple effects nationwide because California imports most of its pork products from outside state lines. Explaining that farms cannot segregate California pork, the pork producers say California’s new regulations would de facto become the industry standard. 

The National Pork Producers Council and the American Farm Bureau Federation sued the state in 2019. After the Ninth Circuit affirmed dismissal of their suit, they seek a Supreme Court reversal under the dormant Commerce Clause — a limitation on the burden that state laws can place on interstate commerce. 

In briefing ahead of Tuesday's arguments, a number of groups that intervened as friends of the court worried that an expansion of the dormant Commerce Clause could disrupt a number of other state laws. The justices also appeared reluctant to limit the authority of states. 

“In today's hearing, justices from across the ideological spectrum expressed deep skepticism about the pork producers' far-reaching arguments against Proposition 12 — arguments that, if accepted would dramatically expand the court’s dormant Commerce Clause doctrine and threaten numerous state laws that protect their own residents from all kinds of harm,” Brian Frazelle, a senior appellate counsel at the Constitutional Accountability Center, said in a statement. 

Arguing the confinement standards required by California’s law occur outside the state, the pork producers said Proposition 12 infringes on other states’ autonomy. 

“If Proposition 12 is lawful, New York can say that pigs have to have 26 feet of space and send inspectors into farms to police compliance as California does,” said Timothy Bishop, an attorney for the producers with Mayer Brown. “Oregon can condition imports on workers being paid the minimum wage. And Texas can condition sales on the producer employing only lawful U.S. residents. And at that point, we have truly abandoned the framers’ idea of a national market.” 

The justices were critical of Bishop’s claims, questioning if the industry had the right to tell California what laws it may pass. Justice Sonia Sotomayor pointed out that pork producers could just refuse to sell to California. 

“Because no one’s forcing them to sell to California,” the Obama appointee said. “They can sell to any other state that they prefer to sell to.” 

The justices also questioned how a Commerce Clause argument would work if the law at issue had been passed by a state smaller than California. 

“So suppose it were Wyoming or Rhode Island that passes a law like this,” Kagan said, adding, “Somebody could easily just cut off the Wyoming market.”

The U.S. government added its 2 cents on the issue, portraying Proposition 12 as a violation of high court precedent because pig confinement is not a local issue. Rather than supporting the extraterritorial arguments from the pork producers, the Department of Justice warned the justices that California’s law could set a precedent of allowing one state to govern what happens in other states. 

“What we have here is basically an attempt by California to regulate what is happening in other states,” Deputy U.S. Solicitor General Edwin Kneedler said. “And as I said, that is a proposition that once unleashed would be difficult to contain.” 

California claims its voters should be allowed to set health, safety and moral standards for in-state sales. The state countered claims that Proposition 12 could set its own precedent by citing laws in other states that extend further than their borders. Ultimately, California said Congress should have the authority to halt Proposition 12 if it wants to, but the courts shouldn’t settle this issue. 

“If petitioners think Prop. 12 raises policy concerns, the solution the framers provided was for them to ask Congress to regulate under the express terms of the Commerce Clause, not for courts to expand the dormant Commerce Clause,” California Solicitor General Michael Mongan said. 

The justices offered a range of hypotheticals as they parsed the implications of a ruling in this case. Justice Amy Coney Barrett asked if states could require products from workers of certain vaccination statuses or workplaces that have policies on issues like gender-affirming surgery. Kagan asked about a historical example concerning states regulating according to connections to slavery. 

“Suppose we imagine ourselves back into slavery days,” Kagan said. “Would it have been impermissible for a state to have said we’re not going to traffic in products that have been produced by slavery?” 

A number of the justices noted that the case is still at the preliminary stage of litigation. 

“The problem that I’m having a little bit with your side of this case is that we’re only at the motion to dismiss stage,” Jackson said. 

The justices offered no clues on their final ruling in the case. 

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