Supreme Court Rules Calif. Pork Law Withstands Commerce Concerns

The U.S. Supreme Court on Thursday upheld a California ballot initiative that banned in-state sales of pork born from sows kept in confined housing.

The justices, in a 5-4 ruling, upheld a California federal court's decision to dismiss a lawsuit from the National Pork Producers Council and American Farm Bureau Federation that challenged a 2018 voter-approved ballot initiative that, among other things, banned in-state sales of meat from pigs born to mothers confined in small spaces.

Justice Neil Gorsuch, writing for the majority, said that the agricultural groups failed to prove their argument that California's Proposition 12 violates the Constitution's dormant commerce clause, which isn't spelled out in the document but has been interpreted as barring states from discriminating between out-of-state and in-state companies.

"[The groups] invite us to fashion two new and more aggressive constitutional restrictions on the ability of states to regulate goods sold within their borders. We decline that invitation," Justice Gorsuch said in the opinion. "While the Constitution addresses many weighty issues, the type of pork chops California merchants may sell is not on that list."

Justice Gorsuch's majority opinion was joined by Justices Clarence Thomas, Sonia Sotomayor, Elena Kagan and Amy Coney Barrett.

The NPPC and AFBF acknowledged that California's law does not implicate the anti-discrimination principle that grounded the Supreme Court's past dormant commerce clause cases, but argued that those cases contain other findings that would weigh against the animal care law, including an "extraterritoriality doctrine," Justice Gorsuch said.

"[Petitioners] contend that our dormant commerce clause cases suggest an additional and 'almost per se' rule forbidding enforcement of state laws that have the 'practical effect of controlling commerce outside the state,' even when those laws do not purposely discriminate against out-of-state economic interests," he said.

The groups argued that Proposition 12 violates that rule because California imports 98% of its pork, and thus the law will impose substantial new costs on out-of-state pork producers who want to do business in California.

"This argument falters out of the gate," Justice Gorsuch said. "A close look at those cases … reveals nothing like the rule petitioners posit. Instead, each typifies the familiar concern with preventing purposeful discrimination against out-of-state economic interests."

The majority also rejected the groups' argument that Proposition 12 runs afoul of the high court's 1970 finding in Pike v. Bruce Church , which established that a state law is unconstitutional if it imposes a burden on interstate commerce that is "clearly excessive in relation to the putative local benefits."

But there was a split as to exactly why that argument failed.

Justices Gorsuch and Thomas held that the groups failed Pike's test because while "the courtroom door" isn't totally shut to dormant commerce clause claims premised on non-discriminatory burdens, the bar is high for those and the agriculture groups didn't clear it.

The groups suggested an analysis to determine whether Proposition 12's costs outweighed its benefits, but Justices Gorsuch and Thomas said courts are not well positioned for that, especially when the costs and benefits are hard to compare. It would be especially difficult in this case, where California's moral interest in animal welfare would have to be weighed against the pork producers' interest in avoiding compliance costs.

They also said that the groups could not show that Proposition 12 imposes "substantial burdens" on interstate commerce, which is a prerequisite for the benefit-cost analysis.

In a concurring opinion, Justices Sotomayor and Kagan said that the groups failed the Pike test because they couldn't prove any "substantial burdens." But they disagreed with Justices Gorsuch and Thomas as to the courts' capabilities of conducting cost-benefit analyses.

Justice Barrett said the groups did prove "substantial burdens," but failed the Pike test because the benefits and costs in this case can't be fairly compared by a court.

Chief Justice John Roberts authored a dissent, in which he was joined by Justices Samuel Alito, Brett Kavanaugh and Ketanji Brown Jackson. They all agreed with Justice Gorsuch's opinion as to the extraterritoriality question, but said they would have vacated the Ninth Circuit's ruling and remanded for further consideration on the Pike question.

The dissenters said courts can weigh different types of costs and benefits, and that the Ninth Circuit needs to do exactly that.

"I would find that petitioners' have plausibly alleged a substantial burden against interstate commerce, and would therefore vacate the judgment and remand the case for the court below to decide whether petitioners have stated a claim under Pike," Justice Roberts said in his opinion.

Scott Hays, the NPPC's president and Missouri pork producer, said in a statement Thursday the group is "very disappointed" in the high court's decision.

"Allowing state overreach will increase prices for consumers and drive small farms out of business, leading to more consolidation," Hays said. "We are still evaluating the court's full opinion to understand all the implications. NPPC will continue to fight for our nation's pork farmers and American families against misguided regulations."

The California Attorney General's Office did not immediately respond to a request for comment, but Kitty Block, president and CEO of the Humane Society of the United States, which intervened in the case on California's behalf, praised the ruling.

"We're delighted that the Supreme Court has upheld California Proposition 12 — the nation's strongest farm animal welfare law — and made clear that preventing animal cruelty and protecting public health are core functions of our state governments," Block said in a statement Thursday.

The Ninth Circuit in July upheld the California district judge's decision to dismiss the case, saying the law correctly regulates in-state and out-of-state actions in the same way. The appeals court noted that circuit precedent dictates a state law can only be found to violate rights under the dormant commerce clause in narrow circumstances and said the law's alleged "upstream effects" on out-of-state producers' operations don't clear that bar.

California's law requires that egg-laying hens, veal calves and breeding pigs be allowed freedom of movement and that they be housed in cage-free designs. The animals must not be prevented from lying down, standing up, fully extending limbs or turning around freely.

The federal government is represented by Elizabeth B. Prelogar, Edwin S. Kneedler, Michael R. Huston, Michael S. Raab, Thomas Pulham and David L. Peters of the Office of the Solicitor General.

The National Pork Producers Council and American Farm Bureau Federation are represented by Timothy S. Bishop, Brett E. Legner, Avi M. Kupfer, Dan Himmelfarb and Colleen M. Campbell of Mayer Brown LLP.

California is represented by Rob Bonta, Michael J. Mongan, Samuel T. Harbourt, Thomas S. Patterson, Nicole Welindt, R. Matthew Wise and Mark R. Beckington of the California Department of Justice.

The Humane Society of the United States, Animal Legal Defense Fund, Animal Equality, The Humane League, Farm Sanctuary, Compassion in World Farming USA and Animal Outlook are represented by Bruce Wagman of Riley Safer Holmes & Cancila LLP. The Humane Society is also represented by Jeffrey A. Lamken, Michael G. Pattillo Jr., Caleb Hayes-Deats, Jordan Rice and Kenneth Notter of MoloLamken LLP.

The case is National Pork Producers Council et al. v. Karen Ross et al., case number 21-468, in the Supreme Court of the United States.