By: Matthew Hayes
In 2018, Californians voted to prohibit the sale of meat procured from animals held in gestation crates.[i] Those crates keep farm animals, including pigs, in cages so small that the animals are unable to turn around.[ii] The ballot measure, backed by various animal rights groups including the Humane Society of the United Sates, was passed with over sixty percent of the vote.[iii]
California voters’ decision to protect animals’ rights and to ameliorate health concerns arising from the use of gestation crates caused discontent among some in the pork industry.[iv] Eliminating the use of gestation crates would increase production costs.[v] Thus, pork industry groups challenged the constitutionality of the ballot initiative.[vi] Rejecting the industry’s arguments that the law violated the Dormant Commerce Clause, the district court granted California’s motion to dismiss.[vii] The circuit court affirmed.[viii] The Supreme Court granted certiorari to hear the case in the October 2022 term.[ix]
The pork industry groups have argued that the law, commonly referred to as Proposition Twelve, violates both the Dormant Commerce Clause’s extraterritoriality principle and imposes excessive burdens on interstate commerce without advancing any legitimate local interest.[x] Relying on dicta from previous Supreme Court precedents, the challengers argue that since California imports 99.9% of all pork consumed in the state, it follows that the gestation crate restriction impermissibly regulates commerce outside the state of California.[xi] The petitioners also argue that California’s law excessively burdens interstate commerce by imposing additional requirements on pork producers, claiming that California’s law requires them to alter their current facilities.[xii] In contrast, California argues that the extraterritoriality principle applies only to state laws “that controlled the prices paid in out-of-state transactions by linking them to prices paid in in-state transactions.”[xiii] Further, the state argues that only certain types of burdens on interstate commerce will trigger the Dormant Commerce Clause, and the burden imposed by Proposition Twelve is not one of those types of burdens.[xiv]
The Supreme Court should uphold the law. Given the interconnected nature of the national economy, if the court accepts the petitioner’s argument for extending the extraterritorial restrictions of the Dormant Commerce Clause, it could prohibit a substantial percentage of state laws relating to economic regulation.[xv] Further, the Supreme Court has previously rejected the balancing argument made by the pork industry. Under that test, typically referred to as Pike Balancing, a law that is non-discriminatory but imposes certain types of burdens on interstate commerce violates the dormant commerce if those burdens exceed the putative local benefits of that law.[xvi]
First, the industry is pursuing an extraterritorial argument. The petitioners argue that since the Proposition’s practical effect is to regulate activity outside of the state of California, it follows that the law violates the Dormant Commerce Clause.[xvii] They also argue that Proposition Twelve exceeds California’s police powers.[xviii] For the same reason, both arguments fail. All that Proposition Twelve regulates is “products that businesses choose to sell within California’s borders,”[xix] and that regulation is not protectionist in nature.[xx] Since the law is neither protectionist nor discriminatory, the Dormant Commerce Clause’s protections against extraterritorial state regulation are not implicated.[xxi]
Second, the pork industry’s Pike Balancing argument should fail. In Sonneborn Bros. v. Cureton, the Supreme Court upheld a tax that Texas placed on imported oil when the state placed that same tax on oil produced within Texas.[xxii] The court explained that “a state tax upon … oil [from out-of-state] as property or upon its sale in the state if the state law levied the same tax on all oil or all sales of it, without regard to origin, would be neither a regulation nor a burden of … interstate commerce.”[xxiii] The underlying principle from Sonneborn Bros. – that evenhanded treatment of out-of-state goods for legitimate purposes will not violate the Dormant Commerce Clause – counsels affirmance in this case. California’s law treats pigs raised in the state in the same way that it treats pigs raised out-of-state.[xxiv] And ensuring that a state’s citizens do not contribute to animal cruelty is a legitimate state interest.[xxv]
The Supreme Court of the United States should permit Californians to regulate the production of meat sold in California. Proposition Twelve does not impermissibly regulate extraterritorial conduct. Nor does it excessively burden interstate commerce. Thus, it does not run afoul of the Dormant Commerce Clause and should be upheld.
[i] Marina Bolotnikova, US Supreme Court to hear case on California’s ban on extreme confinement crates, The Guardian (Oct. 3, 2022, 6:00 A.M.),
https://www.theguardian.com/environment/2022/oct/03/supreme-court-proposition-12-pig-gestation-crates-california-animal-welfare-law [https://perma.cc/TH7X-XPR8].
[ii] Id.
[iii] Kitty Block & Sara Amundson, Supreme Court takes up pork industry’s attempt to overturn California’s Proposition 12, The Humane Soc’y of the U.S. (Mar. 28, 2022), https://blog.humanesociety.org/2022/03/supreme-court-takes-up-pork-industrys-attempt-to-overturn-californias-proposition-12.html#:~:text=Proposition%2012%20banned%20the%20intensive,facilities%20that%20use%20those%20practices [https://perma.cc/4YZ3-GCU6].
[iv] Id.
[v] Brief for Respondents at 10, Nat’l Pork Producers Council v. Ross, 6 F.4th 1021 (9th Cir. 2021) (No. 20-55631); Id.
[vi] Block & Amundson, supra note iii.
[vii] Nat’l Pork Producers Council, 6 F.4th at 1025.
[viii] Id.
[ix] Block & Amundson, supra note iii.
[x] Id.; Brief for Petitioner at 19-20, Nat’l Pork Producers Council, 6 F.4th 1021 (No. 20-55631).
[xi] Reply Brief for Petitioner at 2-3, Nat’l Pork Producers Council v. Ross, 6 F.4th 1021 (9th Cir. 2021) (No. 20-55631).
[xii] Brief for Petitioner, supra note x, at 20.
[xiii] Brief for Respondents, supra note v, at 15.
[xiv] Id. at 9.
[xv] Divided Argument, Horse Sausage, at 58:34 (Oct. 2, 2022), https://www.dividedargument.com/episodes/horse-sausage/transcript [https://perma.cc/RP47-XMYC].
[xvi] Dep’t of Revenue of Ky. v. Davis, 553 U.S. 328, 353 (2008).
[xvii] Brief for Petitioner, supra note x, at 19.
[xviii] Id. at 36.
[xix] Response for Respondents at 9, Nat’l Pork Producers Council, 6 F.4th 1021 (No. 20-55631).
[xx] Kenny Torrella, The fight over cage-free eggs and bacon in California, explained, Vox (Aug. 10, 2021), https://www.vox.com/future-perfect/22576044/prop-12-california-eggs-pork-bacon-veal-animal-welfare-law-gestation-crates-battery-cages [https://perma.cc/CTU6-THZX].
[xxi] Brief for Intervenor Respondent at 9, 26, Nat’l Pork Producers Council v. Ross, 6 F.4th 1021 (9th Cir. 2021) (No. 20-55631).
[xxii] Sonneborn Bros. v. Cureton, 262 U.S. 506, 508-09 (1923).
[xxiii] Id.
[xxiv] Torrella, supra note xx.
[xxv] Cf. United States v. Stevens, 559 U.S. 460, 469 (2010) (there is long-standing tradition of punishing animal cruelty in America); see also Brief for Intervenor Respondent, supra note xxi, at 9, 26.