Blog By: Ashton Edwards
Farm animals matter too, even if they end up as a main course on your family’s dinner table. At least that is what the citizens of California thought when voting for Proposition 12 (“Prop 12”) in 2018.[i] The initiative originated as an amendment to the California Health and Safety Code.[ii] The main goal was for the implementation of an animal welfare law protecting farmers from
…knowingly causing any covered animal to be confined in a cruel manner, as specified, and prohibits a business owner or operator from knowingly engaging in the sale within the state of . . . whole pork meat or whole veal meat, as defined, from covered animals confined in a cruel manner.[iii]
Prop 12 banned the in-state sale of all whole pork products that came from farmers who housed them under cruel and unusual conditions.[iv]
After California enacted Prop 12, a discussion among farmers and lobbyists began to arise.[v] Farmers from all over the states began fighting back against the potentially detrimental effects that the new law could bring. This proposition was especially important to out of state farmers, as they provide the majority of California’s pork products. With the implementation of Prop 12, serious consequences could arise for out of state farmers and “burdens” on interstate commerce.[vi] In an attempt to halt its implementation, a class of farmers (“Farmers”) sued the California Department of Agriculture, and successfully pushed the case into the arms of the Supreme Court.[vii] In its 2022 opinion, the Supreme Court discusses the farmers, and fervently disapproves of their arguments while citing many traditional constitutional law cases to support their conclusion.[viii]
A critical issue embedded in the Supreme Court’s decision, was the notion of “whether Congress has spoken.”[ix] The Farmers argue that there is a Constitutional violation in the implementation of Prop 12 because it burdens interstate commerce (violating the dormant commerce clause) because it discriminates against farmers by providing advantages to the in-state farmers while disadvantaging out of state farmers. The court rejected the Farmers’ contention explaining that Congress controls interstate activities unless state law violates the Commerce Clause by boosting domestic commerce and burdening out of state ones “[regardless of whether Congress has spoken].”[x] Prop 12, according to the Supreme Court, does not do that.[xi]
The Supreme Court proposes to the Farmers that they should continue urging Congress to speak on the matter, suggesting that Congress is “better equipped” to handle interstate issues and disputes.[xii] The Court repeatedly reminds them of the fact that Congress refuses to do so.[xiii] Further, the Court says that the issue is more of a political and economic question that should be decided by the states, instead of in front of a federal court. In a 5-4 decision, the Supreme Court affirms the Prop 12 initiative due to their refusal to step on the feet of Congress.[xiv]
The Supreme Court is correct. The best governmental entity to address the concerns of the Farmers is Congress themselves, since Congress was granted authority to regulate interstate commerce via the Commerce Clause.[xv] Congress should respond to both their standing on the original Prop 12 decision and the Supreme Court’s decision about Dormant Commerce Clause concerns, instead of staying silent on the issue. Also, given the issues that the Supreme Court addressed in their opinion, Congress should explicitly choose to affirm or deny to "adopt a statute that might displace Prop 12 or laws regulating pork production in other states."[xvi]
There are a few reasons why Congress should respond. First, Congress needs to establish clarity for states, citizens and farmers surrounding the parameters of Prop 12 and the Dormant Commerce Clause. Many states and businesses are beginning to evaluate provisions like Prop 12, and whether there is concern about farmers at risk due to the high costs incurred in trying to succumb to the rules.[xvii] There was discussion over whether the Pike balancing test should be used to evaluate the dormant Commerce Clause.[xviii] But the question was whether this particular law was in violation.[xix]
Some argue Prop 12 substantially burdens interstate commerce and, therefore, provides enough clarity to determine how to evaluate the Commerce Clause. The implementation of Prop 12 could influence a number of sales across state lines. For example, if Farmer A, an old farmer, lives in Texas and only sells to a small locally owned business in California, Farmer A would need to comply with Prop 12. However, if he is noncompliant, and it would take over $8,000 to be so, it could detrimentally impact his ability to make sales if Farmer A could not afford the necessary upgrades.[xx] This view was also supported by some Justices who dissented in part, arguing that there are burdens on interstate commerce and the Supreme Court should have remanded to the lower court.[xxi] Congress should use their expertise to provide a clear response to address these concerns.
Second, uniformity is essential. The Court stated that the ultimate decision will not come from the Supreme Court, but rather it should be a decision for each state. It could be said that uniformity is not necessary, and Farmers should just adhere to state standards. However, if some states implement Prop 12, but some states do not, United States pork farmers already participating in the market risk an uneven playing field. Although the Farmers expressed some notably nonviable arguments, they were accurate in stating that some farmers may have the means to comply (if they do not already fit under the qualifications) but there are many farmers that do not.[xxii] There are currently only fifteen states with a law similar to Prop 12.[xxiii]
In conclusion, the Supreme Court was correct in stating that this interstate commerce concern should be brought to Congress instead of the court system for a couple of reasons. Therefore, Congress should not stay silent on the Prop 12 enactment, and instead, should make a clear and explicit statement to give guidance to farmers and states.
[i] Animal Care Program, CDFA, https://www.cdfa.ca.gov/AHFSS/AnimalCare/ (last viewed Mar. 24, 2024) [https://perma.cc/PE42-RNF4].
[ii] Id.
[iii] Id.
[iv] National Pork Producers Council et al. v. Ross, Secretary of the California Department of Agriculture, et al., 598 U.S. 356 (2023).
[v] Proposition 12 fully Implemented, The Humane Soc’y of the U.S. (2023), https://www.humanesociety.org/news/proposition-12-fully-implemented (last viewed Mar. 24, 2024) [https://perma.cc/7SDN-T6T3].
[vi] Nat’l Pork Producers v. Ross, 598 U.S. at 383.
[vii] CDFA, supra note i.
[viii] Nat’l Pork Producers v. Ross, 598 U.S. at 377-87.
[ix] Nat’l Pork Producers v. Ross, 598 U.S. at 369.
[x] Id.
[xi] Id.
[xii] Nat’l Pork Producers v. Ross, 598 U.S. at 383.
[xiii] Id.
[xiv] California Proposition 12, Farm Animal Confinement Initiative, Ballotpedia (2018), https://ballotpedia.org/California_Proposition_12,_Farm_Animal_Confinement_Initiative_(2018) [https://perma.cc/U734-PR3U].
[xv] Nat’l Pork Producers v. Ross, 598 U.S. at 382.
[xvi] Nat’l Pork Producers v. Ross, 598 U.S. at 368.
[xvii] Nat’l Pork Producers v. Ross, 598 U.S. at 371.
[xviii] Nat’l Pork Producers v. Ross, 598 U.S. at 377.
[xix] Id.
[xx] Darrell Stitzel, Shannon, Ill. et al., IL Pork Producers: Prop 12 Will Wreck Family Farms, NPPC (2024), https://nppc.org/op-ed/il-pork-producers-prop-12-will-wreck-family-farms/ (last visited Mar. 24, 2024) [https://perma.cc/5EN8-MVRA].
[xxi] Kate R. Bowers, Supreme Court Narrows Dormant Commerce Clause and Upholds State Animal Welfare Law, Cong. Rsch. Serv. (2023), https://crsreports.congress.gov/product/pdf/LSB/LSB11031 (last visited Mar. 24, 2024).
[xxii] Nat’l Pork Producers v. Ross, 598 U.S. at 385-87.
[xxiii] Flynn, California’s Prop 12 is now the law of the land, Food Safety News (2024), https://www.foodsafetynews.com/2024/01/californias-prop-12-is-now-the-law-of-the-land/#:~:text=The%20first%20day%20of%202024,not%20housed%20under%20specific%20standards (last visited Mar. 24, 2024) [https://perma.cc/SU63-CPMN].