POLITICS

Supreme Court majority questions California law regulating pig pens, pork products

John Fritze
USA TODAY
  • California voters enacted Proposition 12 in 2018 in an effort to prevent animal cruelty.
  • A decision in the case isn't likely before next year.

WASHINGTON – The Supreme Court on Tuesday appeared willing to allow litigation to continue over a California law aimed at ensuring pigs can turn around in their pens, a case with implications for one state's ability to regulate the industries of another.

California voters enacted Proposition 12 in 2018 in an effort to prevent animal cruelty. The law bans the sale of bacon, chops and other pork products in the most populous state unless the sow from which it was born was housed in at least 24 square feet of floorspace – a standard that industry officials acknowledge virtually no farms can meet.

While Californians account for 13% of the nation's pork consumption, the state is home to few pig farms. That means the cost of complying with Proposition 12 would fall mainly to out-of-state farmers, many of which are based in the Midwest. Sen. Chuck Grassley, an Iowa Republican, has described California's mandate as a  "war on breakfast."

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Several of the justices asked probing questions of both sides during more than two hours of argument and the underlying questions appeared to split traditional conservative and liberal alliances. But there seemed to be agreement among a majority of the court that the case could go back to a lower court for further review. 

Associate Justice Samuel Alito suggested that only a large state such as California could have such an impact because of the size of its population, nearly 40 million residents.

"Is California unconcerned about all this because it is such a giant? You can wield this power. Wyoming couldn't do it," Alito pressed the attorney for the state. "You can bully the other states and so you're not really that concerned about retaliation."

California argues that the law is a restriction on sales within its borders that applies evenly whether the pork originates from within its borders or outside of them. 

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Associate Justice Neil Gorsuch questioned whether federal courts should be involved in trying to balance a state's interest in such a regulation against the effect on out-of-state industries.

"The alternative you are selling us appears to be that this court should engage in a freewheeling balancing test," Gorsuch told the attorney representing the pork producers. "What business do we have in that?"    

The dispute has ramifications far deeper than the price of bacon: At a time when policies embraced by conservative states often look significantly different from those adopted byliberal ones, the question is when and how much such laws may reach beyond a state's boundaries. 

And that led to many hypothetical questions from the justices: What would happen, for instance, if Texas banned the sale of fruit unless a producing state could demonstrate that it was harvested by U.S. citizens? Could a liberal state ban the sale of a product from a conservative-led state, for instance, that had adopted anti-LGBTQ policies?

"We live in a divided country," Associate Justice Elena Kagan said. "The balkanization that the framers were concerned about is surely present today...Do we want to live in a world where we're constantly at each other's throats?" 

Young pigs occupy a barn at a hog farm outside of Denison, Iowa.

The case centers on a legal doctrine known as the dormant commerce clause, which generally bars states from passing laws that burden interstate commerce. If Congress has not passed a law affecting interstate commerce, the assumption under the doctrine is that Congress intends an open market without state-imposed regulations.

But the contours of the doctrine are murky, and experts see the potential for additional litigation. Some experts believe, for instance, that the case could have implications forthe thorny question of whether lawmakers in one state may prohibit people from traveling to another state to obtain an abortion. That question took on new meaning after the Supreme Court overturned its landmark Roe v. Wade decision in June. 

The U.S. Court of Appeals for the 9th Circuit dismissed the farmers' lawsuit last year, writing that while the dormant commerce clause "is not yet a dead letter, it is moving in that direction."