Earlier this week, thirteen states, led by Indiana, sued Massachusetts in federal court, seeking to overturn a Bay State law that makes it illegal for a business operating in the state to sell veal, eggs in the shell, or pork which it "knows or should know" comes from an animal which was confined in a small cage or crate.
The lawsuit, filed in the U.S. Supreme Court, argues the Massachusetts law oversteps the state's powers under the U.S. Constitution. It follows on the heels of a similar lawsuit filed last week by many of the same states—this one led by Missouri—against California, which has a law similar to that found in Massachusetts.
Both suits are asking the Supreme Court, typically a court of last resort, to take up the case directly.
The question the Supreme Court is being asked to address, ultimately, is whether lawmakers in any one state—here, Massachusetts and California, respectively—may dictate how farmers in other states raise livestock.
These state laws are no doubt ripe for challenge. "If voters in my home state make the mistake of adopting the law, a federal court should strike down the law as an unconstitutional power grab on the part of Massachusetts," I wrote last year, months before voters in the state adopted the constitutionally defective (if well-intentioned) law.
"Massachusetts's efforts to regulate farming in other states constitute extraterritorial commercial regulation in violation of the Commerce Clause," reads the lawsuit filed this week. "This extraterritorial regulation will increase the costs of producing and marketing farm commodities nationwide, including for farmers and consumers in Plaintiff States."
If this pair of lawsuits rings a bell, you've been paying attention. Six states sued California in federal court over the same state law in 2014. But that suit was thrown out of court that same year. The court determined the states lacked standing, which requires an injury, traceable to the actions of a defendant, which a court may rectify. A finding that a plaintiff has standing is a prerequisite courts must find before agreeing to hear a case.
The court found the plaintiff states could not prove the states (rather than, say, their residents) had suffered any injury because of the California law. However, in dismissing the lawsuit against California, U.S. District Judge Kimberly Mueller noted that injured farmers in the states that had sued are exactly the sort of people who would have standing to sue.
"In short, the wrong people made the right arguments," I noted at the time.
Will the Supreme Court take up the current lawsuits? The issue may well hinge, again, on standing. I'm a firm "maybe" on whether the current lawsuits will withstand challenges to the standing requirement.
In the Massachusetts case, one standing claim echoes the one that was rejected by the federal court in California: that the states have "standing on behalf of their farmers and consumers, all of whom will suffer significant effects from the Massachusetts law."
But the states also claim in the same lawsuit to have standing "because their agencies and instrumentalities own and operate farms and sell regulated commodities on the national market as part of a supply chain that reaches Massachusetts." That's a far better argument.
In support of its claim, the suit cites Purdue University, a public state university in Indiana.
"Purdue University sells livestock in Indiana and to nationwide meat distributors who then resell the products to retailers, some of whom are presumably located in Massachusetts," it reads.
I think the argument that the Massachusetts law would make it more difficult for Purdue to sell to distributors who resell products to retailers in Massachusetts is a strong argument for standing. But the argument that "some" of these retailers "are presumably located in Massachusetts" is a far weaker, far more nebulous argument.
I've urged farmers and other producers and consumers who are themselves harmed by these laws—the right people making the right arguments—to sue in order to overturn these laws. "Farmers can and should stand up for their rights," I concluded several years ago in a piece on the initial California lawsuit.
Legislative efforts to achieve the same goal have so far stalled. Earlier this year, for example, a bill was introduced in Congress that would prohibit (as the Constitutional already does) states from enacting laws like those at issue in California and Massachusetts. But that bill went nowhere.
The lawsuits against Massachusetts and California, taken together, are a noble effort to fight a set of unconstitutional laws. But I suspect they may—just like the earlier California lawsuit and efforts in Congress—fall short of their goals.