Solicitor General of United States finds Prop 12 violates Interstate Commerce Clause
National Pork Producers Council v. Karen Ross is a case that might be destined for the World Trade Organization, not the U.S. Supreme Court.
After all, it seems to involve a non-tariff trade barrier, harming other states. But the analogy falls apart because California is not trying to sell more pork than its neighbors; it just wants to dictate its consumption.
And this dispute is entirely domestic, involving several states.
So, to the U.S. Supreme Court, it goes with amicus briefs being submitted for the next term on Oct. 11. State attorney generals are supporting the pork producers on behalf of Alabama, Arizona, Arkansas, Georgia, Idaho, Indiana, Iowa, Kansas, Kentucky, Louisiana, Mississippi, Missouri, Montana, Nebraska, New Hampshire, North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Tennessee, Texas, Utah, Virginia, and Wyoming.
And those 26 states have now been joined by the Solicitor General of the United States. The solicitor general represents the federal government before the U.S. Supreme Court and is often called “the 10th justice.”
Solicitor General Elizabeth Prelogar was under pressure to support Prop 12 as it reached the high court. Liberal Senators led by Dianne Feinstein, D-CA, Alex Padilla, D-CA, Cory Booker, D-NJ, and 13 others went public with their arguments that the United States should be pro-Prop 12.
“We believe that the previous administration’s position on Proposition 12 was based on a misconception of the law.,” they wrote .”As is stated in the ballot measure text itself, the purpose of California’s Proposition 12 was not only to improve animal welfare but to ‘phase out extreme methods of farm animal confinement, which also threaten the health and safety of California consumers and increase the risk of foodborne illness and associated negative fiscal impacts on the State of California.”’
But Solicitor Prelogar, on half of the Biden administration, filed an amicus brief finding the port producer’s claims are valid in that Proposition 12 violates the constitution and will create unnecessary burdens for interstate commerce.
The Solicitor’s reasoning went like this:
Other states might condition in-state sales on even more square feet of space per hog or comply with animal feed requirements, veterinary care, or virtually any other aspect of animal husbandry. The combined effect of those regulations would be to effectively force the industry to ‘conform’ to whatever State (with market power) is the greatest outlier.
California consumes 13% of the nation’s pork and imports 99.87% of the pork the State consumes.
In their brief, the attorney generals said: that the “entire impact of Proposition 12 will be visited on out-of-state producers that, though they have no vote in California, must remodel their farms (or reduce their herds) to comply with the law.”
California consumes 13 percent of the nation’s pork and imports 99.87 percent of the pork the State consumes.
Missouri Attorney General Eric Schmitt said California should not be allowed to dictate to his State’s farmers and ranchers how to raise breeding pigs, egg-laying hens, or veal calves. He says California is “attempting to impose its will” on Missouri farmers and ranchers by threatening to deny their entry into the California market.
The 9th Circuit Court of Appeals upheld that California’s novel law restricts hogs, chickens, and veal calves to particular housing. That case, National Pork Producers Council v. Karen Ross, is now before the high court. Ross is California’s Secretary of Agriculture.
Prop 12 was approved by 63 percent of California’s voters in 2018, but the new law did not go into effect until Jan. 1, 2022. It dictates minimum space requirements for veal calves, breeding pigs, and egg-laying hens.
Prop 12 claims animals kept in less than those spaces are “confined cruelly” and bars their sale in California.
The pork producers, the state attorney generals, the American Farm Bureau Federation, and the Solicitor General all see California’s ban on sales as an “extraterritorial” violation of the Interstate Commerce Clause.
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