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Supreme Court considers California Prop 12 case

The U.S. Supreme Court on Tuesday heard arguments in the case brought by the National Pork Producers Council, the American Farm Bureau Federation and other agriculture groups against California’s Proposition 12, which would require that pork sold in the state comes from operations in which sows live in facilities large enough that they can turn around.

The farm groups contend that the law violates the Commerce Clause banning obstruction of interstate commerce because almost all the pork sold in California is produced outside the state.

After the hearing, the National Pork Producers Council expressed confidence that the court would side with them, but accounts of the hearing in the general media indicated that the decision is hard to predict.



Reuters said, “The justices appeared torn over whether the law went too far by forcing farmers in other states to change their practices in order to sell pork in the most populous U.S. state. Questions from some justices suggested that the court could allow a pork industry-backed lawsuit challenging the law to play out in the lower courts rather than rule on its constitutionality.”

The justices asked questions about both the rights of states and interstate commerce.



Much of the questioning centered on whether the California law would violate what’s known in legal circles as the Pike test, which says that to be constitutional the burdens a state or local law imposes on out-of-state commerce must not be clearly excessive in comparison to the local benefits.

But the questioning went much further afield, raising issues of what other state laws could be affected by a ruling against the California law.

Edwin Kneedler, who represented the Biden administration’s Justice Department, said, “Taking the allegations in the complaint as true, Proposition 12’s sales ban is invalid under Pike because it imposes a substantial burden on interstate commerce without serving a legitimate local public interest. Proposition 12 imposes a trade barrier based on conduct beyond California’s borders. It fails to respect the autonomy of California’s sister states. It invites conflict and retaliation and threatens the balkanization of the national economic union. California’s disagreement with the manner in which pigs are housed in other states is not a cognizable local interest of California that could support the imposition of such a ban. A state’s interest in protecting the health and safety of its residents can support a state law if that local interest is substantial and not outweighed by its effects on commerce.”

IMPORTED PORK

Justice Samuel Alito noted that the law applies to pork that is shipped into the United States from Canada and Mexico and asked if the government has any position on whether regulating that is consistent with federal treaty law.

Kneedler replied, “I don’t know the answer to that. I don’t know that the government has taken a position on that, but – but NAFTA [the North American Free Trade Agreement] and other trade agreements are examples of concerns about trade restrictions that are not price-based. And so we think the Commerce Clause also should not be price-based for similar reasons.”

The questioning also focused on the law’s basis that Californians, who voted for the law as a ballot measure by a nearly two-thirds majority, want to impose the production conditions on “moral” grounds because they want to know that the meat they buy is from animals that have been treated humanely.

In a reflection of the possible ramifications of the case, Alito said, “Suppose the pork-producing states and pork-consuming states get mad at you because of this and they decide: OK, fine, turnaround is fair play, so we’re going to adopt regulations concerning the production of agricultural products that are produced almost exclusively in California. Would that be OK? For example, could a state say, we’re really concerned about water shortages, so we’re going to prohibit the shipment through our territory or the sale within our borders of any almonds where the trees are irrigated? Could they do that?”

Michael Mongan, the solicitor general in San Francisco who represented the state, replied, “Your Honor, if it’s focused on the sale within their borders, I think that the logical conclusion of our position is that they could do that.”

Alito continued, “Are you unconcerned about all this? Is California unconcerned about all this because it is such a giant, you can wield this power; Wyoming couldn’t do it, most other states couldn’t do it, but you can do it? You can bully the other states, and so you’re not really that concerned about retaliation? Is that part of your position?”

Mongan replied, “No, Your Honor, that’s certainly not how I would put it. I think that this is a concern held by California and many other states, including states who are pork-producing, like Michigan and Illinois, who filed an amicus brief on our side, and it goes to core features of state sovereign authority to control the – the products that are sold within our borders.”

Justice Neil Gorsuch said, “We’re going to have to balance your veterinary experts against California’s veterinary experts, the economic interests of Iowa farmers against California’s moral concerns and their views about complicity in animal cruelty. Is that any job for a court of law?” Congress could resolve the questions, Gorsuch said.

The questioning also veered far afield to questions such as what the impact would be on the ban on selling blood diamonds.

Justice Sonia Sotomayor said that even though the case is not based on health and food safety questions, “We have a brief from scientists that point out that there are some genuine scientific reasons for fearing the – the – the raising of pigs. You may disclaim it, and I know your complaint says something different, but some people could reasonably believe that close confinement of farm animal increases the likelihood of new diseases jumping from humans – from animals to humans or vice versa. That – we know that’s happening. It is also reasonable to think that reducing close confinement of pigs may reduce the use of antibiotics in pigs, thus reducing the development of antibiotic-resistant bacteria. And some think that the use of gestation crates increases the presence of diseases in piglets that carry – can carry through to time of slaughter. Now I know you’re going to tell me there’s no scientific proof, but there is certainly a reasonable basis for these people to think this.”

Timothy Bishop, the lawyer for the farm groups, replied, “We don’t think there’s a reasonable basis. Our – our veterinarians say exactly the opposite.”

After the hearing, the National Pork Producers Council said, “NPPC presented a strong case and is confident in its arguments presented to the Supreme Court justices. We appreciate the support of the Biden administration and look forward to the court’s decision.”

During a news conference on Zoom, Michael Formica, chief legal counsel for NPPC, said, “It was a good day at the court this morning.” Formica said that pork producers want to produce protein at a reasonable price, and the law would interfere with that. He also said that under the law California would send inspectors to the U.S. pork-producing states and to Mexico and Canada to determine whether the conditions for the animals meet California standards.

Speaking of the controversy over whether pregnant sows should be housed individually in gestation crates, Scott Hayes, NPPC president-elect and a Missouri producer, said at the news conference that the decisions about sows’ housing should be left up to producers who have concluded that housing them individually works best.

“Sows are bullies. They assert their dominance,” Hayes said.

Wayne Pacelle, president of Animal Wellness Action and the Center for a Humane Economy, said, “The Supreme Court does not have to balance the moral revulsion of Californians for inhumane treatment of pigs in gestation crates with the upstream economic effect upon some out-of-state farmers who would have to build/revamp their pig confinement systems to comply with that law. With one-third of sows nationally already raised outside of gestation crates, and with Californians consuming less than 10% of U.S.-produced pork, current production systems can meet all of California’s needs. This legal case is a pig in a poke.”

Kitty Block, president and CEO of the Humane Society of the United States, said, “Today our counsel made a clear case to the Supreme Court on why states have the right to keep immoral and unsafe products out of their markets, including pork from cruelly confined pigs. As we await the court’s decision, we applaud the many retailers and major pork producers who are already meeting consumers’ increasing demand for safer, more humane pork.”

In an email late Tuesday, a spokesman for California Department of Food and Ag Secretary Karen Ross, who is named in the case in her official position, said,

“CDFA is committed to defending and continuing to implement this measure overwhelmingly approved by California voters.”


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