Yesterday the Supreme Court heard oral argument in National Pork Producers Council (NPPC) v. Ross, the pork industry’s challenge to California’s Proposition 12, which bans the sale of meat produced by confining pigs in conditions the law regards as cruel. Although Californians consume a substantial percentage of the nation’s pork, nearly all of it comes from other states. Thus, the industry argues that California is unconstitutionally regulating businesses in other states in violation of the Dormant Commerce Clause (DCC). In my earlier column previewing the case, I expressed sympathy for California’s aims but raised the possibility that a favorable ruling for the state could open the door for red states to ban the importation of abortion pills.
The oral argument did not focus on abortion pills in particular. However, various Justices indicated through their questions that they are worried about the case’s implications beyond the fate of the half a million pigs slaughtered every day. Each side faces substantial line-drawing problems.
Two lawyers defended Prop 12. Michael Mongan, the California Solicitor General, represented the state, while Jeffrey Lamken represented the Humane Society of the United States (HSUS). Each argued that a state does not engage in impermissible extraterritorial legislation when it imposes regulations on products sold within the state, even though those regulations have foreseeable upstream effects in other states. The state’s moral views about the methods used to produce goods are a permissible basis for such regulations, the respondents argued.
Various Justices pushed back. Justice Ketanji Brown Jackson wanted to know why California’s interest in facilitating its residents’ moral opposition to animal cruelty justified more than labeling laws. The respondents replied that just as moral grounds support wholly intrastate product bans, so they can support product bans that have interstate effects.
Other Justices wanted to know how far a state’s moral interests can extend. If California can regulate goods based on animal welfare standards that are implemented almost entirely out of state, could Texas regulate goods based on immigration or labor policy? Suppose a state law forbade sale of goods produced by workers who are not legally within the United States or at workplaces where they do not have a choice whether to join a union.
The respondents replied that state regulations of a product made out of state are permissible, so long as they bear a reasonably close relationship to the product itself. Mr. Lamken added a historical gloss based on the fact that for millennia, religious and moral traditions have expressed views about the means by which food is produced. It is not clear how persuasive this attempt to borrow a history-and-tradition test from the Supreme Court’s unenumerated rights jurisprudence was.
Threading the Needle
The lawyers arguing for the petitioners—Timothy Bishop for the pork industry and Deputy Solicitor General Edwin Kneedler for the United States as a supporting amicus—faced tough questions of their own. Although they framed the point somewhat differently from one another, each asked the Court to adopt a per se rule forbidding states from invoking moral justifications as the basis for conditioning the in-state sale of a product on specific requirements regarding how that product was made out of state. When pressed, they acknowledged that their proposed rule, if it had applied before 1865, would have invalidated a state law banning the sale of goods produced using slave labor. In addition, California’s brief identified numerous current laws that would fall under the industry’s proposed rule, including multiple state bans on in-state sale of cosmetics developed using animal testing, New York’s ban on in-state sale of goods produced by child labor, and Indiana’s ban on in-state sale or transfer of fetal tissue derived from aborted fetuses.
Meanwhile, the respondents seemed to be threading a rather narrow needle. Early on, Mr. Bishop conceded that California could completely ban the sale of pork in the state—which would impose even more economic harm on the industry than Prop 12 does. And in response to Justice Jackson’s question, he said that California could impose labeling requirements. Thus, the challengers’ position is that California could enact a more aggressive law or a less aggressive law but not the intermediate law that Prop 12 put in place. That’s not completely illogical, but it is at least counterintuitive.
A Procedural Way Out?
When a question is difficult, lawyers and jurists sometimes resolve it by invoking the burden of proof. If neither side can fully avoid the parade of horribles that would result from a full-fledged victory, perhaps the Justices can simply say that neither side fully wins. Doing so here would appear to favor the industry’s challenge to Prop 12.
Why? Because the case comes to the Supreme Court after the district court dismissed the plaintiffs’ complaint and a panel of the U.S. Court of Appeals for the Ninth Circuit affirmed that dismissal. The Supreme Court could rule for the industry but make clear that victory at this stage by no means guarantees ultimate triumph: the case would be sent back for a trial, at which each side could present evidence.
Nonetheless, in some ways the procedural posture of the case favors California. After all, it is not clear that there is any factual dispute for a trial to resolve. The industry lawyers say that in-state sales limits based on moral objections to production methods out of state are per se impermissible. That is a pure legal claim, not a factual claim requiring the development of evidence.
California could win in the Supreme Court if the Justices reject the industry’s proposed per se rule, but even if the Court adopts that rule, the state could have a second bite at the apple. That’s because California advances an interest in its citizens’ health and safety to justify Prop 12. At the very least, the state would be entitled to a trial to show that pigs confined in conditions that do not comply with Prop 12 are at increased risk of succumbing to and thus spreading disease. Indeed, Mr. Lamken suggested at the end of his argument that the plaintiffs’ legal complaint was deficient for failing to allege that the state had no reasonable basis in health-and-safety concerns for Prop 12. If that’s right, then California could win the case, even without a trial and even if the Court accepts the industry’s proposal that moral concerns do not justify laws conditioning in-state sales on out-of-state production methods.
The Political Process
California and HSUS have one more way to win. In the past, at least two sitting Justices—Clarence Thomas and Neil Gorsuch—have expressed skepticism towards the DCC itself, especially those cases that call for balancing a challenged law’s in-state benefits against its out-of-state burdens. They repeated those concerns during yesterday’s argument.
The Court is unlikely to abandon the DCC entirely, but it could make clear that properly construed, the DCC virtually never invalidates non-discriminatory burdens on interstate commerce, except where such burdens are merely cleverly drafted nominally neutral laws with the real goal of discriminating against interstate commerce. Indeed, the case law arguably already trends in that direction.
All but eliminating the applicability of the DCC to non-discriminatory burdens would not necessarily leave the interstate market vulnerable to what Prop 12’s challengers describe as Balkanization. States are unlikely to adopt morals-based or other legislation that imposes very high costs on out-of-state producers who wish to sell in state because those costs will typically be felt in state. The millions of Californians who eat pork but nonetheless voted for Prop 12 were not voting to make pork prohibitively expensive. They were voting for better welfare standards despite the likelihood of having to pay somewhat more money for pork. If the welfare standards were expected to impose extremely high costs, price-sensitive Californians would have rejected Prop 12. In this example and more generally, in-state consumers give out-of-state producers a kind of virtual representation in the state’s political process.
Moreover, in the rare instance that intrastate protection fails, our constitutional system provides for a remedy. Congress need not leave its power to regulate interstate commerce lying dormant. Congress can enact legislation that pre-empts state laws that really do pose a threat to the national market.
These political checks provide the Court with a ready tiebreaker: given the potential for slippery slopes down either side of the mountain, leave to politically accountable actors at the state and ultimately national level the responsibility for weighing animal welfare and other interests. California—and democracy—would win, and the Court could avoid entangling itself in another political thicket.