The Supreme Court considers the limits of state law and interstate commerce.
by The Wall Street Journal Editorial Board, October 9, 2022
As political polarization grows, states are increasingly seeking to regulate beyond their borders. On Tuesday the Supreme Court will consider where to draw the line in a challenge (National Pork Producers Council v. Ross) to California farm-animal regulations that has far-reaching implications.
California voters in 2018 approved a ballot initiative that established minimum confinement standards for farm animals sold as meat in the state. The law effectively requires that adult female pigs be housed in large group pens even though nearly all hog farmers keep them in individual pens, in part to prevent disease from spreading.
About 99.9% of the nation’s pigs are born and raised outside California. The law is an attempt to regulate out-of-state farms, and it imposes costs on farmers that raise prices for consumers across the U.S. Slaughterhouses process hogs from different sources together, and there’s no practical way to separate pigs raised for consumers in California’s market.
Pork producers say California’s law violates the so-called dormant Commerce Clause, which is the constitutional doctrine that prohibits states from imposing excessive burdens on interstate commerce. Even the Biden Justice Department says California may not regulate “out-of-state activity with no in-state impact based on a philosophical objection.”
The Constitution allows states to protect the health and safety of their citizens. But even California concedes its rules do “not directly impact human health and welfare” and aren’t “accepted as standards within the scientific community to reduce food-borne illness.” The Humane Society sold the law to voters as preventing animal cruelty.
Under the Court’s precedents, a state law violates the Commerce Clause if its “practical effect” is to “‘control [commercial] conduct beyond the boundaries of the State’” or if it imposes a burden on interstate commerce that is “clearly excessive in relation to the putative local benefits.” California’s law does both.
California tries to appeal to Justices Neil Gorsuch and Clarence Thomas, who have criticized this interpretation of the Commerce Clause as a judge-made doctrine. The Justices are right to some extent. The Constitution grants Congress the power to regulate interstate commerce but doesn’t explicitly prohibit states or localities from doing so as well or from imposing laws with extraterritorial effects.
It’s also true that the Court has sometimes interpreted Congress’s powers to supercede state laws too broadly. Raich (2005) pre-empted state law that authorized local cultivation and use of medical marijuana on the thin reed that this could indirectly affect interstate commerce. But here California is seeking to supercede other state laws and impose its moral values on the country.
Ohio law, for one, explicitly authorizes the animal practices that California bans. California ironically argues in its defense that other states are imposing their animal confinement standards. But a patchwork of conflicting state laws would create chaos in the pork market. One impetus for the 1787 Constitutional Convention was to prevent such balkanization.
Under the Articles of Confederation, states imposed tariffs on goods from other states. James Madison said the “practice of many States in restricting the commercial intercourse with other States” was “adverse to the spirit of the Union” and “tends to beget retaliating regulations” that are “destructive of the general harmony.”
California says it isn’t directly regulating out-of-state farmers—it’s merely prohibiting the in-state sale of pork from farms that don’t comply with its rules. This is a distinction without a practical difference. In any case, the law empowers California officials to inspect out-of-state farms. That’s direct regulation.
Justice Antonin Scalia once described the dormant Commerce Clause as “an unjustified judicial invention, not to be expanded beyond its existing domain,” but nonetheless said he would apply it when precedent compelled him. So it does here. Two centuries of High Court precedent hold that states cannot impose their policies on other states.
Judges often grapple with how to sort permissible state laws that indirectly affect interstate commerce from those that impermissibly intrude on other states’ sovereignty. A five Justice majority in Wayfair (2018) ruled that states can require out-of-state retailers to collect sales tax. We disagreed, but states have a sovereign interest in collecting tax from their citizens.
California doesn’t have a sovereign interest in regulating farm animals in other states. If its regulations are allowed to stand, why couldn’t it also prohibit the sale of goods from companies that don’t comply with its CO2 emissions caps? Or why couldn’t Texas ban the sale of meat by slaughterhouses that employ undocumented workers?
California’s law will invite more extraterritorial regulation by other states and open up interstate regulatory battles that will disrupt commerce and further polarize politics.
Appeared in the October 10, 2022, print edition as ‘California Tries to Regulate 50 States’.