The National Pork Producers Council and American Farm Bureau Federation just found out – as so many petitioners have in the history of our nation – that the U.S. Supreme Court is where dreams go to die.
Ever since 2018 the NPPC and AFBF have dreamed of a world without California’s Proposition 12 – a law that when enacted would forbid the sale of most pork in California unless the slaughtered pig was birthed by a sow housed in 24 square feet of living space.
The law as written treats all pork producers equally – whether they operate in California or elsewhere – with no constitutional violation of the Commerce Clause. That was the view of rulings at the district court and court of appeals.
The NPPC did a lot of squealing in its brief to the Supremes, sounding like a child throwing a tantrum because adhering to Prop 12 is just so unfair:
“Respondents ignore or contradict the complaint’s factual allegations that Proposition 12 will have significant extraterritorial effects.They ignore the intrusive on-farm inspection regime set forth in CDFA’s now-final regulations. And they assert that tracing and segregation will limit Proposition 12’s effects to the 13% of pork bound for California markets. But petitioners allege that all pigs will need to be raised in compliance with Proposition 12 because of the impracticability of segregating and tracing pigs and pork at every step of the production process at the necessary scale, because it is not known where a pig’s meat will eventually be sold, and because of the demands of retailers and distributors faced with the risk of criminal and civil sanctions.”
Well, now the Supreme Court has finally weighed in. In a fractured 5-4 decision, Justice Neil M. Gorsuch informed the National Pork Producers Council and American Farm Bureau Federation that it isn’t the job of the Supreme Court to write “new and more aggressive constitutional restrictions on the ability of States to regulate goods sold within their borders:”
“…we remain left with a task no court is equipped to undertake. On the one hand, some out-of-state producers who choose to comply with Proposition 12 may incur new costs. On the other hand, the law serves moral and health interests of some (disputable) magnitude for in-state residents. Some might reasonably find one set of concerns more compelling. Others might fairly disagree. How should we settle that dispute? The competing goods are incommensurable. Your guess is as good as ours. More accurately, your guess is better than ours. In a functioning democracy, policy choices like these usually belong to the people and their elected representatives. They are entitled to weigh the relevant ‘political and economic’ costs and benefits for themselves…”
And for good measure Gorsuch provided the NPPC notes:
“It is hard not to wonder whether petitioners have ventured here only because winning a majority of a handful of judges may seem easier than marshaling a majority of elected representatives across the street.”
At the end of the day Prop 12 was upheld, but perhaps just by the hair of its chinny chin chin. The opinion tells us that:
“GORSUCH, J., announced the judgment of the Court, and delivered the opinion of the Court with respect to Parts I, II, III, IV–A, and V, in which THOMAS, SOTOMAYOR, KAGAN, and BARRETT, JJ., joined, an opinion with respect to Parts IV–B and IV–D, in which THOMAS and BARRETT, JJ., joined, and an opinion with respect to Part IV–C, in which THOMAS, SOTOMAYOR, and KAGAN, JJ., joined. SOTOMAYOR, J., filed an opinion concurring in part, in which KAGAN, J., joined. BARRETT, J., filed an opinion concurring in part. ROBERTS, C. J., filed an opinion concurring in part and dissenting in part, in which ALITO, KAVANAUGH, and JACKSON, JJ., joined. KAVANAUGH, J., filed an opinion concurring in part and dissenting in part.”
This probably means the NPPC and AFBF will further litigate in the hopes of getting some judge to put Prop 12 on hold yet again.
Reading between the lines, it appears Big Pork’s brief to the Supreme Court failed because it did not address potentially fruitful compelling legal questions. In his concurring in part/dissenting in part opinion, Justice Brett M. Kavanaugh handed the NPPC a road map:
“Although the Court today rejects the plaintiffs’ dormant Commerce Clause challenge as insufficiently pled, state laws like Proposition 12 implicate not only the Commerce Clause, but also potentially several other constitutional provisions, including the Import-Export Clause, the Privileges and Immunities Clause, and the Full Faith and Credit Clause.”
Expect Big Pork to take direction from Kavanaugh’s opinion.
Make no mistake about it, NPPC v. Ross has potential consequences far beyond where California gets its meat. It doesn’t take much imagination in a nation that sees itself as “red states” and “blue states” coming up with all kinds of new laws.
“While today’s ruling is focused on agricultural production, it will certainly creep into other industries. This disappointing decision sets a concerning precedent and opens the door for the largest states to dictate the laws and regulations for consumers and businesses to the rest of America. This sets the stage for a state-by-state patchwork of ever-changing and costly requirements that will increase the cost of production and drive higher costs for food and other consumer products.”
Historically the dormant commerce clause has prohibited states from passing laws limiting interstate commerce. But the 9th Circuit Court of Appeals suggested that while the dormant commerce clause isn’t dead “it is moving in that direction.”
Given the financial stakes for Big Pork, questions surrounding the dormant commerce clause and Kavanaugh’s laundry basket of unresolved legal issues there’s going to be more lawsuits. For good measure, the National Pork Producers Council will also be twisting Congressional arms to ax Prop 12.
But for now, California Proposition 12 is constitutional law.
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