In National Pork Council v. Ross, the Court questions whether states can ban products on moral grounds.
Last month, the United States Supreme Court heard arguments in National Pork Producers Council v. Rossa Ninth Circuit case in California dismissing a challenge to Proposition 12, which prohibits the sale of whole pork from the offspring of confined breeding sows in a way California voters consider “cruel.”
domestic pig may seem like just another case of a dormant trade clause, but it has the potential to change the nature of regulation in the United States. Indeed, Proposition 12 does not ban pork that arguably adversely affects the health of Californians, but rather bans pork produced in a way that California voters consider immoral.
The combination of these two elements – (1) a ban based not on a product characteristic, but rather on an aspect of the production process, and (2) based on moral disapproval, rather than more traditional concerns and tangible, such as promoting the health and safety of residents or protecting the local environment domestic pig a case with potentially far-reaching consequences.
In December 2019, the National Pork Producers Council and the American Farm Bureau Federation filed a federal lawsuit alleging that Proposition 12 violates the dormant Commerce Clause because it impermissibly regulates extraterritorial conduct and imposes an undue burden. on interstate commerce. Prior to trial, the District Court granted California’s motion to dismiss on the basis that the Pork Board had not asserted a claim, upheld the Ninth Circuit, and the Supreme Court granted cert.
Although lower court opinions and most amicus briefs to the Supreme Court focused on the claim that California law was extraterritorial, the claim of excessive burden in domestic pig was equally interesting, new and potentially far-reaching. The excessive burden claim alleges that Proposition 12 violates the dormant Commerce Clause because it imposes a burden on interstate commerce that is excessive in relation to its legitimate benefits to the local state.
Although the Supreme Court’s doctrine of undue burden calls categorically for balancing the burden that impugned regulation imposes on interstate commerce against the state’s legitimate local interest in regulation, the trend in covenant cases dormant trade was for the courts to show deference to the enacting state. .
So far, this deference has been appropriate because, for some reason, states seem to have exercised restraint, largely avoiding regulations with significant impacts outside of the state. Very few dormant trade clause cases involving product standards have reached the Supreme Court, and none of these cases involved embargoes based on production processes or relied on moral justifications for embargoes. It doesn’t appear that there are many state laws that, like Proposition 12, ban products on ethical grounds, although the intervener’s attorney, the Humane Society of the United States, has gave some examples, including laws on cosmetics tested on animals, eggs in caged hens and aborted fetal tissue.
Thus, the Supreme Court has now ventured into a potentially vast and constitutionally uncharted space. States could constitutionally enact more process-based bans on goods and services on moral grounds if Proposition 12 is upheld.
Arguments before the Supreme Court last month only confirmed domestic pig high stakes. Although the argument lasted 70 minutes, it lasted over two hours. The judges seemed to be looking for a way to draw a clear line distinguishing meritorious claims from non-meritorious claims, ideally without resorting to unguided balancing. They didn’t get much.
The Court pressed counsel for the Pork Council and counsel for the Solicitor General’s Office, who supported the Pork Council, on several issues. If the Constitution didn’t already outlaw slavery, Judge Elena Kagan asked, could states ban products made in other states with slave labor? If the Court struck down Proposition 12, the justices wondered, what other laws would also fall? The response from the Hog Board’s lawyer – that many laws may need to be struck down – left the judges concerned. Later, the Solicitor General’s office assured them that few existing laws would fall, but it had no clear line or doctrine to offer.
The judges bombarded attorneys for California and the Humane Society, who intervened on California’s behalf, with examples of potential future morality embargoes that states could enact if the Court upheld the pork regulations. Similarly, National Pork’s attorney and Solicitor General’s office provided examples of regulations with out-of-state impacts that could be inspired by Proposition 12.
For example, if proposition 12 were confirmed, would this mean that states could ban products from other states whose laws differ from that of the importing state on labor practices, minimum wages, elimination of waste, immigration, product prices or irrigation practices? Could California also ban pork from businesses, Judge Amy Coney Barrett asked, that don’t require all employees to be vaccinated, fund gender-affirming surgery, or provide some form of health care?
And when Judge Samuel Alito asked if the reversal was fair, so that other states could, for example, ban the sale of California almonds because their constituents disapprove of California’s irrigation practices, the California’s attorney agreed that keeping Proposition 12 implied that other states could ban California. almonds for such reasons.
The California attorney repeatedly attempted to single out Proposition 12 on the grounds that the link between the ban and the product was direct and close – “the particular breeding sows that are literally the mechanism for creating this pig” – whereas ‘with the hypothetical laws, the connection is “totally unrelated. The judges seemed unconvinced, prompting a skeptical judge Brett Kavanaugh to observe that “‘completely independent’ does a ton of your work in your answers”, and prompted Judge Alito to ask the California attorney to clarify what he meant when he said that morality prohibits importation could not be upheld if the connection between the moral interest and the product was too ” attenuated”.
So neither side’s lawyers gave the judges what they were looking for – a reliable way to distinguish constitutional embargoes from unconstitutional embargoes based on processes based on ethical concerns.
The justices also expressed concern that if states can embargo products because they consider certain processes to be immoral, then every politically charged issue can be a basis for an embargo. For example, Judge Clarence Thomas asked the California attorney if his state could ban products from other states that have “different political views on certain issues important to your constituents.”
And the justices expressed concern that disguised protectionism, or tit for tat retaliation, could exaggerate existing political differences and animosities. Judge Kagan asked rhetorically, “Do we want to live in a world where states are constantly at war with each other?
Not only did the judges express concern about turning moral disagreements into economic fights, they wondered if those fights would be fair. They noted that keeping Proposition 12 and similar laws would seem likely to give more power to the biggest states that have the biggest markets, and they wondered how that would fit into the US federalist system. For example, referring to one state’s small market, Judge Kagan observed that “someone could easily cut off the Wyoming market.” And Judge Alito asked California’s attorney if the state was concerned about possible retaliation because small states cannot fight back effectively, allowing California to “bully others.” states”.
Judge Ketanji Brown Jackson appeared to be looking to settle the case on narrow grounds. She asked if Proposition 12 could be reversed because labeling could achieve state objectives with less effect on interstate commerce. Counsel for the Pork Council and Solicitor General both agreed, noting that longstanding doctrine requires a law to be closely tailored. The Humane Society countered that the labeling was inadequate given California’s interest in banning what it considers immoral products from its market. Indeed, he argued that the goal of the state was precisely what he had enacted, so there was no less obstructive alternative that could achieve it.
Further, acknowledging that a health and safety rationale might have a better chance of being upheld, the Humane Society lawyer pointed out that voters could have reasonably believed there might be a benefit to health and safety to allow only pigs without gestation cages to be sold even though California was unwilling to defend those benefits. If accepted, the Humane Society’s argument would effectively permit prohibitions based on moral objections even if the Court explicitly stated that moral objections do not count.
As Justice Kavanaugh noted, the simplest and narrowest way for the Court to resolve domestic pig would be to quash and return on the basis that the trial court erred in finding that Proposition 12 imposed no burden on interstate commerce without a trial. This is the approach we advocate in an amicus brief. Such a resolution would also be consistent with a long line of court precedents.
This result, however, would only launch the box on the road. At some point, the Court will have to address the question of whether – and under what circumstances – moral objections can justify an embargo under the dormant trade clause.