Imagine that a friend of yours wants to lose 10 pounds. You might advise your friend to diet, avoid unhealthy foods, and exercise more. You might even offer some unconventional tips, like sleeping regularly or keeping a daily gratitude journal.
But what if you went to all the stores in your state and told the owners that your friend must not be sold junk food? Or went to all the nearby gyms and told the owners that they must offer a weight-loss program specific to your friend?
Now we’re getting into the realm of the absurd, and rightly so. Your principles and desires, however justified they may seem, do not give you the right to force others to obey your will.
This scenario is playing out in National Pork Producers Council v. Ross, which the Supreme Court will hear next term. The case involves a California law, Proposition 12, that regulates the confinement of farm animals, including pigs, and was approved by more than 62% of California voters.
It is all well and good for Californians to decide that their pork must come from pigs raised in a supposedly more humane way. But instead of consuming less pork raised in ways it doesn’t like, California has imposed its will on other states. Because California imports most of its pork from other parts of America, Proposition 12 ends up regulating pork producers across the country. In fact, because the state imports a whopping 99.87% of its pork, the law has more of an impact outside the Golden State than inside.
This is nanny-statism on steroids. It’s as if one of 50 children appointed herself nanny and decided how the other 49 should be allowed to play.
The good news is, there are rules that forbid these sorts of shenanigans.
The Constitution’s commerce clause states that only Congress has the power to “regulate commerce … among the several states.” The Supreme Court has interpreted this to mean that state laws that attempt to regulate interstate commerce are unconstitutional.
This so-called dormant commerce power has invalidated state regulations many times. In 1945, the Supreme Court struck down an Arizona law that limited the size of freight trains because “the practical effect of such regulation is to control [activity] beyond the boundaries of the state … ”
In 1970, however, the court complicated this straightforward doctrine by establishing a balancing test stating that if local benefits come from the regulation, then the “incidental consequences” of that regulation may be justified, even if they interfere with interstate commerce.
These twin questions of external effects and compelling state interests are the battle lines along which the two sides in National Pork Producers Council v. Ross are arguing over Proposition 12.
California defends its law in part by hiding behind the principle of judicial restraint and in part by downplaying the law’s practical effects out of state.
It claims that Proposition 12 does not directly regulate transactions entirely out of state. Furthermore, the state’s brief says that the pork industry was already moving in the direction of more humane treatment of pigs, effectively annulling any burdens incurred by the proposition’s passage.
The Supreme Court’s previous dormant commerce clause rulings emphasized the practical effects of a regulation. Given that the state consumes a disproportionate percentage of national pork products—about 13%—and imports 99.87% of all it consumes, the practical effect (to say nothing of the intent) of Proposition 12 is to substantially burden commerce outside of the state.
Due to the decentralized nature of the pork industry, the law generates drastic shockwaves through the pork production and sales markets that force pig farmers across America to comply with California’s requirements. Just because a handful of suppliers and intermediaries have decided to comply with those requirements does not justify them. The pork industry is hardly a monolith. There are more than 60,000 members of the National Pork Producers Council alone.
The Supreme Court also balances the size of the local benefits against the size of the burden on commerce. The challengers argue that the effects of Proposition 12 cannot justify the burden the law places on commerce because they are neither local nor “benefits” in any concrete sense.
The benefit of Proposition 12 seems to be nothing more than the warm and fuzzy feelings Californians get from knowing that the pigs they eat lived in larger pens. Critically, California has not shown that its law produces safer pork.
To be clear, no one supports the cruel treatment of pigs. We, at least, would be happier if we knew that our bacon came from happy pigs. But feelings of goodwill aren’t legal justification for one state to regulate the rest of the country.
We encourage Californians to choose only to eat meat that they believe is ethically grown. But telling the rest of the country that they can’t eat meat unless California is happy about it is a step too far.
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