Supreme Court justices peppered attorneys with questions Tuesday over the constitutionality of a California animal housing law that agricultural interests say would have nationwide impacts.
The court's members often took a harsh view of the arguments offered in support of California’s Proposition 12, which would require any pork sold within the state to conform to certain sow housing requirements no matter where the meat-producing animals were raised. But Tim Bishop, representing petitioners the National Pork Producers Council and the American Farm Bureau Federation, wasn’t spared from probing queries either as the panel sought to sift through the interstate commerce implications of the rule.
Justice Neil Gorsuch expressed concern that NPPC and AFBF were arguing “that this court should engage in a freewheeling balancing test … to protect an economic liberty rather than defer to state regulation on health and safety.”
“Does California have enough of an interest in pork compared to lumber, compared to fireworks, compared to whatever you want to come up with? What business do we have in that?” Gorsuch asked.
Bishop offered a rationale, which was buttressed by U.S. Deputy Solicitor General Edwin Kneedler, that the Constitution’s Commerce Clause should prevent California — or any other state — from issuing production mandates outside their own borders.
“The Commerce Clause is intended to prevent balkanization,” Bishop said, “and it was intended to stop interstate strife over these sorts of rules.”
Justices also sought to get a firm handle on California’s justification for Prop 12 from both California Solicitor General Michael Mongan and Humane Society of the U.S. attorney Jeffrey Lamken. During his arguments, Bishop floated a series of hypotheticals that could also take place — Oregon minimum wage mandates or Texas immigration policies, for example — that could follow in the footsteps of Prop 12.
“We live in a divided country,” Justice Elena Kagan said, pointing to Bishop’s hypotheticals, “and the balkanization that the framers were concerned about is surely present today.”
Justices also asked if states could condition in-state sales in other ways. Justice Amy Coney Barrett mentioned vaccine requirements, while Justice Brett Kavanaugh mentioned labor union participation. But Mongan said Prop 12’s requirements go directly to how pork is produced, separating that law from other policy issues.
“On the one hand, states have to be able to regulate the products coming into their borders,” Mongan said. “But on the other hand, I think we would all recognize that it would be problematic if states can condition the sales of those products on restrictions of wholly unrelated, out-of-state (practices).”
But Mongan received pushback for that line of thinking, with Kavanaugh quipping “'wholly unrelated' is doing a ton of work” in Mongan’s argument.
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Lamken, the HSUS representative, was also pressed on his arguments to uphold Prop 12 as a “moral” issue.
“How do we know how many consumers agree or disagree with the morality interest?” Justice Ketanji Brown Jackson, asked, wondering if labeling the available products based on production practices was an alternative approach. “Wouldn't it best be served and we would know based on labeling it, and if it doesn't get sold, then there we are?”
Lamken disputed that labeling could be an alternative, saying it would “still leave California’s markets available for products that California has deemed immoral.”
“It also doesn't serve California's other interests, which is ensuring that all Californians have access to morally acceptable pork, even if they don't have the resources, they don't have the luxury of studying labels or going to the Whole Foods Market on La Cienega (Boulevard),” Lamken said, referring to the upscale Los Angeles road, “This ensures that all pork in California meets a certain level of moral acceptability.”
But justices repeatedly poked at the morality issue, with Jackson circling back to her questions about the possibility of labeling products based on production practices rather than banning them outright.
“I understand health and safety, right, because if you have a health and safety problem, then the state says ‘We can't let people have access to these goods because it's going to hurt them,'” Jackson said. “But I think you have a different set of issues when you're talking about a moral objection.”
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