In Blow To Pork Industry, Supreme Court Supports California’s Proposition 12

by Jennifer Shike, Pork magazine

The U.S. Supreme Court upheld California’s new humane-pork law, rejecting an industry challenge in a ruling buttressing the power of states to impose rules that have a broad economic impact on other parts of the country, writes Pro Farmer analyst Jim Wiesemeyer in his daily commentary.

The Supreme Court ruled that the case was properly dismissed by lower courts. Pork producers had said that the law could force industry-wide changes and raise the cost of bacon and other pork products nationwide, the Associated Press reports.

“This is a major blow to pork and the ag sector,” Wiesemeyer wrote. “The ruling could force pork producers to implement costly changes to keep selling in the country’s most populous state.”

The decision of the court was 5-4, with Chief Justice John Roberts and Justices Samuel Alito, Brett Kavanaugh and Ketanji Brown Jackson dissenting.

“While the Constitution addresses many weighty issues, the type of pork chops California merchants may sell is not on that list,” said Justice Neil Gorsuch, writing for the majority.

Wiesemeyer writes that Kavanaugh’s dissent comments could mean further challenge ahead.

Kavanaugh wrote in his opinion, “I add this opinion to point out that state economic regulations like California’s Proposition 12 may raise questions not only under the Commerce Clause, but also under the Import-Export Clause, the Privileges and Immunities Clause, and the Full Faith and Credit Clause. Although the Court today rejects the plaintiffs’ dormant Commerce Clause challenge as insufficiently pled, state laws like Proposition 12 implicate not only the Commerce Clause, but also potentially several other constitutional provisions, including the Import-Export Clause, the Privileges and Immunities Clause, and the Full Faith and Credit Clause.

“In other words, if one State conditions sale of a good on the use of preferred farming, manufacturing, or production practices in another State where the good was grown or made, serious questions may arise under the Import-Export Clause. I do not take a position here on whether such an argument ultimately would prevail.

“I note only that the question warrants additional consideration in a future case. Under this Court’s precedents, one State’s efforts to effectively regulate farming, manufacturing, or production in other States could raise significant questions under that Clause [Privileges and Immunities Clause]. Again, I express no view on whether such an argument ultimately would prevail. But the issue warrants further analysis in a future case.”

Kavanaugh concludes that it appears that the “properly pled dormant Commerce Clause challenges under Pike to laws like California’s Proposition 12 (or even to Proposition 12 itself) could succeed in the future — or at least survive past the motion-to-dismiss stage. Regardless, it will be important in future cases to consider that state laws like Proposition 12 also may raise substantial constitutional questions under the Import-Export Clause, the Privileges and Immunities Clause, and the Full Faith and Credit Clause.”

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