Proposition 12 bans selling products derived from sows that don’t have at least 24 square feet of space and the ability to stand up and turn around in their pens
Robert Barnes | Contributed
The Supreme Court on Thursday upheld California’s right to forbid the sale of pork in the state unless producers abide by more humane regulations on the treatment of pregnant sows. The decision touched on constitutional issues of interstate trade and splintered the justices outside of their usual liberal-conservative blocs.
There was even disagreement within the majority. Dissenting Justice Brett M. Kavanaugh provided something of a scorecard to show what tests justices believed could be applied to decide whether one state’s law improperly interferes with businesses elsewhere.
Justice Neil M. Gorsuch, writing the majority in what boiled down to a 5-4 decision, rejected what he called a request by pork producers for the court to fashion “new and more aggressive constitutional restrictions on the ability of States to regulate goods sold within their borders.” “While the Constitution addresses many weighty issues, the type of pork chops California merchants may sell is not on that list,” Gorsuch wrote for a majority that included, at times, Justices Clarence Thomas, Sonia Sotomayor, Elena Kagan and Amy Coney Barrett.
Pork producers must turn to Congress for relief from state laws they dislike, he wrote. Then he added that “despite the persistent efforts of certain pork producers, Congress has yet to adopt any statute that might displace Proposition 12 or laws regulating pork production in other States.”
Four members of the court — Chief Justice John G. Roberts Jr. and Justices Samuel A. Alito Jr., Kavanaugh and Ketanji Brown Jackson — were in favor of keeping the challenge to the law alive and sending it back to a lower court for more work. Roberts said because of the size of the California market, pork producers will have little choice but to abide by California’s rules, which in Gorsuch’s words forbid confining breeding pigs in “stalls so small they cannot lie down, stand up or turn around.”
The rules could increase costs by more than 9 percent, Roberts wrote, for what is described as a $20-billion industry. “California has enacted rules that carry implications for producers as far flung as Indiana and North Carolina, whether or not they sell in California,” the chief justice wrote, adding that in the past the court has considered such “sweeping extraterritorial effects … to be pertinent.” It’s uncontested that states can regulate pork raised within its borders.
But Proposition 12, passed by nearly 63 percent of Californians in 2018, went beyond that parameter, banning the sale of products derived from sows that are not allowed at least 24 square feet of space — regardless of where the sows are raised. California raises little pork, but consumes about 13 percent of the nation’s total. The referendum was challenged by the National Pork Producers Council and the American Farm Bureau Federation, and drew support from business groups who worried about the ability of a state to regulate activity beyond its borders.
“This Supreme Court decision will not only affect every small, family-run farm in the nation, but it changes the standard of how state governments can impose regulatory burdens on businesses and consumers outside of that state,” said Beth Milito, the executive director of the National Federation of Independent Business (NFIB) Small Business Legal Center. “Proposition 12 will have a staggering impact on pork farmers, consumers, and interstate commerce as a whole. Today’s decision sets a dangerous precedent, and small businesses will bear the consequences.”
But Gorsuch said the Constitution’s Commerce Clause forbids discriminatory practices by states to protect their businesses and burden others, and not even the pork producers alleged California’s law does that. Writing for two other justices, Gorsuch said it was not for courts to decide how to balance the moral and health benefits of state residents against costs for producers. “In a functioning democracy, policy choices like these usually belong to the people and their elected representatives,” he wrote.
Sotomayor and Kagan were not ready to agree the judicial role is so limited, which would amount to throwing out a test the court has employed in the past. But Sotomayor wrote that “alleging a substantial burden on interstate commerce is a threshold requirement that plaintiffs must satisfy,” and concluded the pork producers had not done so.
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