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Supreme Court

SCOTUS Agrees to Hear Significant Dormant Commerce Clause Case

National Pork Producers Council v. Ross could have implications far beyond bacon prices in California.

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Today the Supreme Court granted certiorari in three cases. One of the cases, National Pork Producers Council v. Ross, concerns the extent to which the Dormant Commerce Clause limits state regulations that have alleged extraterritorial effects. As a consequence, this case could have implications far beyond the specific regulations concerning the sale of pork products in California.

NPPC v. Ross involves a challenge to California's Proposition 12, which bans the sale of animal products from animals that were raised in conditions contrary to the proposition's standards for animal confinement. Because many animal products sold in California are produced in other states, the petitioners claim that this proposition violates the Dormant Commerce Clause.

Proposition 12, the petitioners charge, is prohibiting the sale of products not due to any characteristic of the products themselves, but rather based upon the conduct of the producers in other jurisdictions. As the petitioners see it, this imposes excessive burdens on interstate commerce and amounts to unconstitutional "extraterritorial" regulation, as it represents an effort by California to impose its policy preferences on how farm animals are treated in other jurisdictions. There would be no issue were the California law to merely specify how farm animals are treated within the state, but because the costs of complying with California's standards would only be borne by in-state producers, they might be placed at a competitive disadvantage.

This case could have far-reaching implications, and not merely for agricultural law. State energy and climate regulations have also been subject to Dormant Commerce Clause challenge. If the Supreme Court were to conclude Proposition 12 is unconstitutional, it may also cast doubt on state laws that regulate fuel sources based upon their life-cycle carbon emissions, for example.

This case is also interesting because it is unclear where the current justices are on Dormant Commerce Clause questions. Business groups and some conservatives like the doctrine, as it clears away regulatory obstructions to interstate commerce, which was part of the purpose of replacing the Articles of Confederation with the Constitution in the first place. Others, however, believe the doctrine is an atextual judicial invention, and believe it should be applied sparingly, if at all. Justices Thomas and Gorsuch are almost certainly in this latter camp, but the other conservative justices might not be. This case may also give us an early glimpse of how Justice Ketanji Brown Jackson approaches federalism and structural constitutional questions.

Were that not enough, one must remember the case concerns bacon -- and everything is better with bacon.

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  1. If growing wheat in my backyard for my own consumption is interstate commerce then surely this is too.

    1. Never mind the wheat. Prohibiting growing cannabis in your backyard used to fall under "interstate commerce" because it was illegal in all 50 states, and therefore there was no lawful interstate commerce for you to take part in.

      At least back when they wanted Prohibition of alcohol, they went with Constitutional amendment, and didn't have to jump through any legal contortions about why it was legal to do it.

  2. How about if 49 states pass laws saying California laws do not apply in their state?
    Can they arrest California manufacturers for putting Prop 65 labels on stuff they send out of state?

    1. Can California arrest animal producers for animal cruelty in other states?

      No, that's a silly argument. The better question is whether a state could demand that products sold in their states not have a Prop 65 label on their packaging (for which the answer is- probably).

      TBH, this is actually a little bit of a weird case- while you might not be able to tell the difference, for example, between an egg from a hen kept in a cage vs. one that was not, there are absolutely animal products that are dependent on the conditions in which the animal is raised. Are the petitioners claiming, for example, that a state couldn't ban veal?

      1. " The better question is whether a state could demand that products sold in their states not have a Prop 65 label on their packaging (for which the answer is- probably)."

        The answer is probably. Unless freedom of speech is a thing in that state, in which case, no, they can't criminalize putting a label on their packaging. Other than that, spot on legal argument.

    2. "How about if 49 states pass laws saying California laws do not apply in their state?"

      How would that work?
      "Let's see... murder is illegal in California, so it's perfectly fine here."

  3. Massachusetts nearly provided a companion case. Voters approved a "cage free" egg bill that the industry did not comply with and was unwilling to comply with. The legislature amended the law at the last minute to adopt a standard that a few egg producers already met.

    Earlier this month I saw a sign in a grocery store: "All eggs sold in Massachusetts are required to be cage free. We apologize for any inconvenience."

    I thought the legislature should have stayed out of the fight and let voters go without eggs for a while to teach them a lesson.

    In my opinion, the California law should be upheld against a constitutional challenge. Banning sale of pork would be within the power of the legislature.

    1. Earlier this month I saw a sign in a grocery store: "All eggs sold in Massachusetts are required to be cage free. We apologize for any inconvenience."

      Seen of a carton of eggs: "These eggs contain no cages"

  4. The problem is in the exact specifications for the production mechanism. Bit like New York going after the dormitories in Lochner. If they could enunciate a defensible principle not inextricably linked to the empirics of the current means of production (like cage-free or open-range, or even kosher or halal slaughter), it might have pressed a few less of the freedom-to-contract buttons.

    I mean, California could decide that the only ethical pork was wild boar slaughtered in the manner of a Cranach oil pointing, and so long as there was no legitimate nondiscriminatory alternative, they'd get their brunch meat. When you describe the actual modifications required to existing factory farms, the possibility of alternatives, let alone nondiscriminatory alternatives, simply becomes meaningless. The farmer, the owner of the existing means of production, must do as he or she is told. The existence of potential alternatives ensures that the local rule is a desired end, not a policing of means.

    (For "farmer," read: the multinational corporation with large barns filled with animals barely able to move and surrounded with lagoons of toxic mire. Blandings it ain't.)

    Mr. D.

  5. Next up, I suppose the restrictions on importing Mediterranean fruit flies into California are unConstitutional, too.

  6. The case should also shed some light on the legality of efforts of states to control other state's regulation of abortion rights once the Supreme Court gets rid of Roe or weakens it to the point of irrelevancy.

    The expectation here is that the conservatives on the Court will strike down California's efforts to regulate pork production in other states, but will sustain a state like Missouri's effort to regulate abortion in Illinois, (assuming states do attempt to bar their residents from engaging in an activity that is legal in the state they are visiting) because consistency is not a part of current conservative attitudes towardss the law, and hypocrisy is.

    1. What efforts can you identify of states attempting to regulate abortion in other states? Or are you just smoking dope?

      1. Well, there's Texas' anti-abortion bill, which makes it a civil bounty offense to help someone in Texas get an abortion, applied to people who drive women to appointments.

        1. Where do you see that? The bill is here: https://legiscan.com/TX/text/SB8/id/2395961

          It creates liability for someone who aids and abets an abortion in violatio of the chapter. That would include someone who drives into Texas to drive a woman to an abortion clinic in Texas. But not someone who drives a woman out of state for an abortion.

            1. Sec. 171.208. CIVIL LIABILITY FOR VIOLATION OR AIDING OR
              ABETTING VIOLATION. (a) Any person, other than an officer or
              employee of a state or local governmental entity in this state, may bring a civil action against any person who:
              (1) performs or induces an abortion in violation of this subchapter;
              (2) knowingly engages in conduct that aids or abets
              the performance or inducement of an abortion, including paying for or reimbursing the costs of an abortion through insurance or otherwise, if the abortion is performed or induced in violation of this subchapter, regardless of whether the person knew or should have known that the abortion would be performed or induced in violation of this subchapter; or
              (3) intends to engage in the conduct described by Subdivision (1) or (2).

              Precisely the section I was referring to. That says you are subject to aiding and abetting liability for helping someone commit and abortion that violates the statute, i.e., takes place in Texas. Don't see how that regulates abortions in other states. What is does is attach liability to those who knowingly help abortions be performed in Texas. Pretty standard aiding and abetting provision.

              1. "Precisely the section I was referring to. That says you are subject to aiding and abetting liability for helping someone commit and abortion that violates the statute, i.e., takes place in Texas."

                What violates the statute is a person who lives in Texas obtaining an abortion. I'm not seeing your "unless it's done outside Texas" addition in the text.

      2. Missouri is actively considering a "bounty-enforced ban" law that would apply to people helping Missouri residents obtain abortions even outside the state. That strategy will no doubt proliferate, as state legislators succeed in passing bounty-enforced bans in other states neighboring "blue" states and need something new to pump up their base.

          1. Among many cites returned from a quick search in "Missouri enforcement of abortion ban to procedures performed outside the state," is:

            Missouri wants to stop out-of-state abortions. Other states could follow.
            By ALICE MIRANDA OLLSTEIN and MEGAN MESSERLY, Politico, 03/19/2022 07:00 AM EDT
            ...
            The first-of-its-kind proposal would allow private citizens to sue anyone who helps a Missouri resident have an abortion — from the out-of-state physician who performs the procedure to whoever helps transport a person across state lines to a clinic, a major escalation in the national conservative push to restrict access to the procedure.

            Republican state Rep. Mary Elizabeth Coleman, who is pushing the Missouri policy as an amendment to multiple health bills, said it specifically targets a Planned Parenthood clinic in Illinois just across the river from St. Louis that opened in 2019 with the explicit goal of serving Missouri patients.
            ...
            If you believe as I do that every person deserves dignity and respect and protection whether they’re born or unborn, then of course you want to protect your citizens, no matter where they are,” Coleman told POLITICO. “If a Missouri resident is hurt, even in Illinois, by a product that they bought in Illinois, there is still jurisdiction for them to sue in a Missouri court because that’s home for them … and this is extending that same kind of thought to abortion jurisprudence.”
            ...
            The Missouri proposal is on the legislative calendar, meaning it could be voted on any time before the session ends in May.
            ...
            Chelsey Youman, the state director and national legislative adviser for the anti-abortion–rights advocacy group Human Coalition Action in Texas, is working with the same lawmakers who drafted the state’s six-week ban to craft a Missouri-like bill that could be introduced when lawmakers return to Austin next year.

            We’ve had the benefit of seeing for six months now what an almost abortion-free state could look like,” she said. “But we know women are still going out of state, or worse, illegally obtaining medical abortion pills. The Missouri model would essentially close those loopholes.

    2. because consistency is not a part of current conservative attitudes towardss the law, and hypocrisy is.

      If Democrats didn't have double-standards, they'd have no standards at all.

      1. Another part of conservative legal inconsistency - saying it's okay to have no principles because libs bad.

      2. "

        because consistency is not a part of current conservative attitudes towardss the law, and hypocrisy is.

        If Democrats didn't have double-standards, they'd have no standards at all.
        "

        Confused as to which of the parties is the Conservative one, are you?

  7. "everything is better with bacon"

    Jew erasure.

    1. If God didn't want people to eat bacon, he would have made it out of broccoli instead of making it out of bacon.

  8. Yeah, the idea that either Thomas or Gorsuch would refuse to interpret the Dormant Commerce Clause as prohibiting state-level regulatory efforts like this is a bit silly. These justices have no coherent or consistent judicial philosophy apart from conservative activism. I'm ashamed to share a profession with them.

    1. To figure out Thomas's position, you have to check which side is currently funding his wife's operation. If either side is, then the prediction is easy, and requires no mind-reading.

  9. I tend to agree with Justice Thomas that the negative commerce clause is nothing but judge-made doctrine. Interstate commerce policy is Congress’ business. If it’s good policy, let Congress enact it.

    It certainly shouldn’t be expanded, or used as a cudgel whereby states can overcome other state’s internal laws.

    Separately, if the argument that there’s no difference in the meat, only the process, is valid, then laws requiring distinguishing natural and lab-made diamonds or hand-crafted and machine-made goods or brand-name and generic drugs, or for that matter thousands of other distinctions that are routinely made, also violate the clause. There too, the only difference is the process by which they are made.

  10. "used as a cudgel whereby states can overcome other state’s internal laws."

    It can't. If meat producer X doesn't want to follow California's rules, they don't have to.

    Choices have consequences. I don't want to follow California's rules for producing meat, so I don't. California can't impose any restrictions on me at all, 3 time zones away. Of course, this also means that I derive no income from selling meat in California. Then again, I incur no costs of shipping meat to California, either. On the fourth hand, I also incur no costs of raising meat.

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