Select Page

Supreme Court Hears Oral Arguments in Important Dormant Commerce Clause Case That Could Strike Down Burdensome California Pork Regulations


     On Tuesday, the U.S. Supreme Court heard oral arguments in National Pork Producers Council v. Ross, a case concerning Proposition 12 in California which requires all pig farmers selling pork into California to provide their pigs at least 24 square feet of pen space per pig. The agricultural organizations challenging the law argue that it would increase pork prices all throughout the United States, a dramatic interstate economic effect that violates the dormant Commerce Clause in the United States Constitution.
     Back in June, NTUF’s Taxpayer Defense Center filed an amicus brief with the Supreme Court supporting the agricultural organizations and arguing that one of the Constitution’s purposes was to protect states from passing laws that would burden the rest of the economy. Before the Constitution was adopted, it was common to have states tariff the products of, and impose economic regulations on, other states. One of the Constitution’s main purposes was to put an end to these discriminatory and harmful state practices through the Commerce Clause, Privileges and Immunities Clause, and Import-Export Clause.
     The regulation at issue in California would certainly have a drastic effect on the economy. California imports nearly all its pork, as most pigs are raised in other states. California nonetheless wants the power to demand that farmers in Ohio and Iowa consent to California government agents being able to inspect farms and demand paper records to make sure farms comply with California’s policy preference.
     But farmers don’t know where their pigs are going when they raise them. They raise them and sell to wholesalers and distributors who sell the pork all over the country. The California law would force every farmer who may want to sell one pig to California to raise all their pigs in compliance with the California law because they do not know where the pork will ultimately end up. The challengers allege the law would increase farm production costs by $13 per pig.
     During oral arguments Tuesday, some members of the Supreme Court were attempting to figure out the economic burdens of the law compared to the benefits. California conceded that the law is not about the health and safety of Californians eating pork, but the morality of giving pigs a little bit more room in the pig pen.
     Oral arguments focused heavily on the Pike doctrine, a rarely applied dormant Commerce Clause doctrine where a law’s economic costs are compared to the law’s benefits. It is a balancing test where if the costs outweigh the benefits, the law is declared unconstitutional under the Dormant Commerce Clause. NTUF’s Taxpayer Defense Center briefedPike as a workable solution for courts to employ in these sorts of challenges.
     The Court’s newest member, Justice Jackson, appeared to be willing to let the agricultural organizations attempt to prove their economic cost analysis at trial. Along similar lines, Justice Kavanaugh flat out stated that the agriculture organizations’ complaint sufficiently plead that the economic costs of this law would outweigh any benefit.
     During arguments, Justice Alito was concerned about the great power California has in its ability to affect the nationwide economy. He said what California was doing was bullying pig farmers, and Wyoming would not be able to others in the way that California is doing so, due to California’s immense economic power. Pig farmers are forced to comply with California’s law or lose market access. He also posed a hypothetical of another state passing a law banning the sale of fruit handled by people not legally in the country, which California’s attorney alarmingly said a state could do.
     Justice Sotomayor, on the other hand, compared the California law to food labeling statutes that carry with them economic costs, but great benefits.
     Justices Thomas and Gorsuch were skeptical of the Court’s ability to engage in Pike balancing.
     Ultimately, the main issue the justices need to resolve, and one they appeared split on, is to what extent a state’s moral interest in farming techniques can be used to justify a law that has widespread economic impacts. Many of the questions focused on whether Texas or other states could regulate economic activity to further their policy preferences.  
     The justices can choose to remand the case back to a lower court to have a trial on the economic costs and do Pike balancing; they could rule the California law unconstitutional for having such a nationwide economic impact; or they could rule that the California law does not violate the Constitution’s Commerce Clause.
     NTUF’s Taxpayer Defense Center will be monitoring the outcome of this case.

Travis Nix is a Young Voices contributor and a student of tax law at Georgetown Law. His tax and budget commentary has been featured in Fox News.