The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent

More Pork! And the Prevention of Cruelty to Animals

A few more words about the constitutional status of animal cruelty laws


In a posting a few days ago, I discussed the Nat'l Pork Producers' Council v. Ross case now before the Supreme Court, in which the NPPC is challenging, on "dormant commerce clause" grounds, a California law that makes it unlawful to sell pork in CA if the seller knows (or should know) that the meat came from a breeding pig that was confined "in a cruel manner" (as defined in the statute).

The NPPC has two main arguments, the most prominent being that the law represents improper "extra-territorial" law-making, inasmuch as it amounts, in effect, to compelling out-of-state pork breeders to change their business practices. As I discussed in the earlier post, I would be surprised if the Court adopts this tack.

Their second argument, which I admitted had me scratching my head, is that the law imposes, in NPPC's words, "excessive burdens on interstate commerce without advancing any legitimate local interest." California's "philosophical preferences about conduct occurring almost entirely outside California," and its "desire to prevent what California considers animal cruelty that is occurring entirely outside the State's borders," cannot justify the burdens imposed on pork producers nationwide.

As many commenters pointed out, I didn't do a particularly good job explaining why I found this claim confusing. Let me try again.

I think it's their use of that word "legitimate" that threw me.

Let's start with some propositions with which everyone agrees:

  1. Preventing animal cruelty in California is a perfectly "legitimate" interest, under California's "police power." California may pursue this interest through legislation—banning, say, dog-fighting, bear-baiting, or particular forms of animal confinement, within the State.
  2. Animal cruelty laws are not—and do not need to be—justified as "health and safety" measures. The health and safety of Californians are unaffected by the existence (or not) of organized dog-fighting rings within the state.  These laws rest, for want of a better descriptor, on "public morals"; as the Supreme Court put it many years ago, a State's police power encompasses all "laws in relation to persons and property within its borders as may promote the public health, the public morals, and the general prosperity and safety of its inhabitants." W. Union Tel. Co. v. James, 162 U.S. 650, 653 (1896). Californians, speaking through their legislators, may declare that it is morally objectionable to treat animals in certain ways, and that they don't want to live in a society that tolerates such treatment.
  3. California may also, of course, enact "health and safety" regulation regarding animals, or animal products, sold in California—banning, say, products deemed to be improperly labeled, unsafe, or unhealthy.
  4. This kind of ordinary health and safety regulation often has "incidental" effects on out-of-state businesses; businesses that choose to sell their goods in California will have to comply with California law as to those products shipped into California, and this may require them to alter their manufacturing or marketing practices.
  5. That burden on out-of-state businesses will not invalidate the regulation under the dormant commerce clause unless it is "clearly excessive" when compared to the local benefits. So if California's purpose is to eliminate trichinosis, a common pork parasite, it can regulate the pork coming into the state, and the burdens that this may impose on out-of-state pork producers will be weighed against the local benefits (reduced disease) in California to determine whether the law meets dormant commerce clause requirements.

As I say, none of this is controversial or contentious.

Here, though, is where things get complicated: The NPPC's position is that "public morals" laws should be treated differently for purposes of analysis under the dormant commerce clause from laws based on a "health and safety" rationale. The local benefits of health and safety regulation count, for purposes of the dormant commerce clause balancing test; the local benefits of "public morals" laws do not.  Public morals laws, they assert, yield no local benefits—as a matter of law—to be weighed in the dormant commerce clause balance; they are thus per se invalid to the extent they impose any burdens at all on out-of-state businesses.

From the NPCC Brief (emphases added):

"Put simply, state laws that project extraterritorially but bear no relation to internal public safety or public order are beyond the police power of a state or locality and thus violate the commerce clause. . . .

Although safeguarding the welfare of domestic animals is a valid exercise of police power, a law that attempts to address perceived harms to animals in other States is not. California's interest in preventing perceived animal cruelty is not a legitimate reason for regulating the production of goods outside its borders. . . .

Under this Court's cases, a law with extraterritorial effects on commerce that has no local benefits exceeds the police power and violates the Commerce Clause. Proposition 12 is a textbook example of [such a law]. . . .

A state law that governs commerce extraterritorially is unconstitutional if, though clothed as police-power regulations it bears no reasonable relation to some purpose within the competency of the state to effect. . . .

[California] does not invoke any legitimate interest in avoiding in-state harm.

I now understand my own confusion better than I did before. The State of California's brief calls the NPCC's argument "remarkable," and I think they're correct. Where does this two-tiered system for dormant commerce clause analysis come from? Why does the interest that Californians evidently have in whether their local grocery stores and other retailers are contributing to a market that they view as immoral—an interest that is squarely within their "police power"—not count for dormant commerce clause purposes?

Perhaps there is an answer to these questions, but they don't pop out at me (and they're not clearly spelled out in the NPCC's briefs). [Please note that I'm not saying that the NPCC's theory here is wrong—just that I don't quite get where it comes from, or understand what its implications might be]

And lest you think that this is all much ado about nothing, consider the current controversies about State abortion restrictions. Don't they, like animal cruelty laws, rest on a "public morals" rationale?  A number of States (see here) have, or are considering, enacting laws prohibiting out-of-state suppliers of abortion-inducing drugs from sending their products into the State. If the NPCC's position prevails here, aren't those laws per se invalid under the dormant commerce clause?