Supreme Court Takes on Pigs and Power
By Jennifer Hill
The Supreme Court is set to hear an interesting case with broad implications out of California this week in Ross v. National Pork Producers. On the surface the case seems like an animal welfare issue, however the repercussions of the case run much deeper, tapping into federalism and how much power one state should have over the others, and similarly how much control the federal government should have to tell a state “no” in a complicated economy in which commerce constantly flows across state lines.
The case will likely center on the courts determining the role of the Commerce Clause which states that Congress has the power to regulate commerce across state lines. Historically the Clause has been used to increase federal power including pushing through FDR’s New Deal, the federal ban on marijuana and the Affordable Care Act.
The pork case, which will be heard beginning Tuesday, got its start with California’s 2018 Proposition 12. Prop 12 was a sweeping “animal welfare” bill that took direct aim at the livestock, and especially pork, industry. Specifically the proposition effectively bans sow confinement pens, often used when a sow gives birth to prevent her from killing her young piglets. Taking it one step further California also banned the sale of any pork within the state that comes from a farm that does not comply with the new rule. That’s where the Commerce Clause comes in.
Because producers cannot predict what pork will be sold into California versus other states they say all pig farms across the country will be forced to retrofit themselves to the new standards and that it will cost producers, “$293,894,455 to $347,733,205 of additional capital…”. Overall they predict a $13 per pig cost increase, which of course will by necessity be passed on to consumers. Pork trade groups almost immediately filed suit, arguing that California should not be able to pass rules that will have such a heavy impact on industry across the entire nation.
The Supreme Court will have to decide to either uphold California’s right to limit products sold within the state or conclude that the implications of the bill are too impactful on other states. Either way the final decision will certainly matter to far more than America’s pork producers. For those of us sitting in the cross section of libertarian values and agricultural producers it’s an interesting case with a Hoppian feel. While it’s clear that federalism is preferred with maximum power pushed as locally as possible, when one state knowingly attempts to force burdensome regulations on the rest of the nation things get stickier. Sure, pork producers could simply call their bluff and say fine, we won’t sell pork into California, however that’s a massive market to walk away from. A step Tyson and the others will likely never take. At the end of the day it’s about what moves the needle closer to freedom. California dictating production processes to the rest of the nation certainly isn’t increased liberty. Sometimes in order to protect your liberty you have to throw the enemy out of the helicopter.