Earlier this week, Chris Koster, the attorney general of Missouri, filed an extraordinary lawsuit against the State of California.
Koster is asking the federal court to overturn a California law set to take effect in 2015 that requires farmers across the country to conform to California regulations pertaining to the dimensions of cages for housing egg-laying hens.
Koster, who alleges in the suit that California law violates the U.S. Constitution, filed suit in U.S. District Court in Fresno—a conservative agricultural region of California—on behalf of the state of Missouri.
The issue is whether California lawmakers can dictate how farmers in other states raise their animals. The case raises serious constitutional questions about the California egg law—and other laws in the state.
"Is California," asked a Wall St. Journal blogger earlier this week, "simply by regulating the type of goods that flow into the state, actually sort of legislating in Missouri? And if, so, is that ok?"
The California law stems from a 2008 animal-rights voter initiative, Proposition 2, that requires farmers within California to increase the size of the living quarters of egg-laying hens in the state. In his lawsuit, Koster notes that the exact cage dimensions required under the law are unclear, and could range anywhere from 87 to 403 square inches. That's anywhere from larger than to much larger than current cages.
The problems with a California law that restricts California farmers only were obvious to the state's farmers and economists, among others.
"Experts predict the number of eggs imported into the state in order to meet consumer demand will swell once the ban takes effect, since out-of-state eggs are not subject to the ban," I wrote in a 2010 Chapman Law Review article, The "California Effect" & the Future of American Food. "One estimate indicates that Prop 2 could result in the elimination of most of the California egg industry and the loss of thousands of jobs, which could cost the state more than $370 million in gross sales and resulting tax receipts."
And the law's vagaries have vexed California poultry farmers.
So California did the sensible thing and repealed the law. Erm, no. Instead, California decided its bad law should apply to farms in all fifty states.
As Koster notes in a press release announcing the lawsuit, in 2010 California legislators voted to expand the law's reach, "requiring egg producers in other states—including Missouri—to comply with Proposition 2 themselves in order to continue selling their eggs in California."
Groups that supported Prop 2, like the Humane Society of the United States, also support the law's expansion.
The Kansas City Star editorial board also came out this week against Koster's lawsuit.
The paper argues that the California law "is reasonable." I disagree, though I think reasonable people can argue on that point insofar as the law governs only California farms. But any argument about the law being reasonable ends at the California border.
The Commerce Clause of the U.S. Constitution provides that only the federal government may regulate interstate commerce. A well-known axiom of the Commerce Clause, the dormant Commerce Clause, holds that because only the federal government has such power, states may not also exercise such power.
If this sounds to you a lot like the ongoing lawsuit by foreign and domestic foie gras producers against the state of California over its ban on the sale of birds subject to a particular manner of feeding, you're not alone. The Missouri lawsuit is really a case of same issue, different bird.
The KC Star editors agree. Though their legal argument against Koster's lawsuit is full of holes.
"Producers and sellers of foie gras made the same argument after California banned force-feeding of ducks and geese in order to produce an oversized liver," write the Star editors. "The U.S. Court of Appeals for the Ninth Circuit rejected the claim, saying California was not restricting any state's commerce because its law treated in-state and out-of-state producers the same."
That's not quite true. The case is ongoing. While the Ninth Circuit did deny a motion for a preliminary injunction, the District Court has yet to rule on the actual case. What's more, one might expect the more conservative, agriculturally savvy Fresno-area jurors that will hear the egg lawsuit to react differently to a law that restricts farming practices than would jurors in Los Angeles, where the foie gras lawsuit was filed.
Sure enough, Fresno County voters were one of just eleven California counties to reject Proposition 2 at the ballot box in 2008. Los Angeles voters, meanwhile, supported Prop 2 by a margin of more than 2-1—even after the L.A. Times came out against the measure.
So if Missouri (and other free-riding states) didn't want to lose the largest market for its eggs—540 million of which end up in California each year, according to the lawsuit's estimates—what could the state do?
It could do nothing—like other states. Or its farmers could spend millions of dollars to comply with California law. Or the state could sue. But it—and other states—could also fight back in other ways.
If a judge were to uphold California's ban—or even before such time—then Missouri and other states could just choose to play California's game. Imagine, for example, if Missouri passed a law that any food product exported from inside a state that requires a warning label be placed on said food (like those required throughout California under the state's Prop 65 rules) must contain the same warning label when it reaches Missouri's borders. California (and California alone) requires many foods like prunes, olives, bread, and others to display such warning labels, which read something like: "WARNING: This product contains chemicals known to the State of California to cause cancer."
You'll find these ludicrous warnings everywhere in the state. They scare, and then through their ubiquity they begin to bore. "The nation's breadbasket now wants us to fear bread," which a Washington Post blogger noted this week I'd written in my law review article.
Under my hypothetical Missouri law, the stigmatized California foods would be forced to compete in Missouri against breads and other foods produced in Missouri and forty-eight other states that don't have such scary warning labels. Which foods are Missouri consumers going to buy? (Hint: It's probably not the cancer-y ones.)
I hope Missouri doesn't adopt this sort of law. Restrictions on the free flow of goods between states are exactly the sort of interstate trade barriers that the Commerce Clause was intended to prohibit.
Missouri's attorney general appears to see the issue the same way.
"This is not an agriculture case, and it's not just about egg production," Koster told the Pulitzer Prize-winning KC Star reporter Mike McGraw earlier this week in an article that also quoted me speaking approvingly of the lawsuit. "It's about the tendency by California to press the boundaries of intrusion into an area protected by the Commerce Clause of the U.S. Constitution."
Koster's absolutely right. And for that reason, I hope he and the state of Missouri prevail in their lawsuit.