Legal Docket: Pork production and animal rights

MARY REICHARD, HOST: It’s Monday morning, October 17th, 2022 and we’re so glad you’ve joined us for The World and Everything in It! Good morning. I’m Mary Reichard.

NICK EICHER, HOST: And I’m Nick Eicher. It’s time for Legal Docket. Just one oral argument for today, but it’s a really important one.

REICHARD: Yes, it is. And I may want to take this one up for season four of Legal Docket next summer.

Yea, because it has an interesting constitutional issue—namely, the commerce clause—and the core of the case has to do with the welfare of animals and the efficient production of meat for human consumption.

EICHER: Here’s the background. Back in 2018, California passed a law called Proposition 12. It places restrictions on the sale of pork, saying if you want to sell pork in California, your birthing sows must have an additional 10 square feet of space than what’s typical for them.

Animal-rights activists drove the ballot initiative, and it won nearly two-thirds of votes cast in that election.

REICHARD: But pig farmers and meat packers sued to stop it. Their lawyers say the regulation reaches into other states and disrupts what they do. If the law actually takes effect, the costs California imposes will cause the price of pork to rise across the country. They’d need to build new buildings. New cages. They’d have to reduce the size of herds. All that on top of already-sky high costs of labor, equipment, and feed for the livestock.

Lawyer for the pork producers, Timothy Bishop, at the Supreme Court:

BISHOP: And what I ask the Court to focus on is what our nation's interstate market looks like if California can condition sales on its moral or policy views and every other state can do the same. And that destroys the twin purposes of the Commerce Clause, which this Court said are to maintain the national economic union and preserve the territorial sovereignty of the states. We will not have a national economic union if California can impose its moral views this way.

The Commerce Clause. Article I, Section 8, Clause 3.

In relevant part, it gives Congress the power to regulate commerce among the several states.

So the pork industry argues California is essentially arrogating to itself the power the Constitution gave to Congress.

But California says this is not about interstate commerce. It’s about California and its marketplace. State Solicitor General Michael Mongan.

MONGAN: In this case, Prop 12's sow housing restrictions are tied to the production process for California-bound pork. And the market already treats that aspect of the production process as a basis for differentiating between products. That's why stores sell crate-free pork.

But then there’s another aspect of the Commerce Clause: The so-called Dormant Commerce Clause. Think of it as the flip side of the Commerce Clause rule that delegates to Congress the power to “regulate commerce among the states.” Congress can; conversely, states cannot.

Now, you’re not going to find the Dormant Commerce Clause anywhere in the Constitution. Supreme Court decisions have inferred that, and taken it to mean that state action cannot excessively burden interstate commerce.

Lawyer Bishop for the pork industry says that because California imports 99% of its pork, the effect of the law very much places burdens on interstate commerce.

At least one justice saw this as more than just a moral crusade for animal welfare. After all, states do have police powers to regulate public health and safety of their own people.

EICHER: Take the example of California’s particular problem with air pollution—which is produced by emissions from the millions of automobiles operated in southern California.

So think about the gasoline those cars burn. Refiners produce gasoline from light crude oil and create a number of different blends. To meet California environmental standards, refiners must create specific reformulations that are more expensive to produce. But they can produce it. And they can do it in-state without much effect on markets in the rest of the country.

Pork production is not like that, and California is not merely demanding a special pork blend. Its policy targets the way out-of-state farmers raise the animals.

REICHARD: In other words: California is basically trying to regulate Iowa and a handful of other small states.

Nevertheless, here’s Justice Sotomayor steering the analysis toward public health. Her exchange is with pork-industry lawyer Bishop.

SOTOMAYOR: 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.

BISHOP: We don't think there's a reasonable basis. Our veterinarians say exactly the opposite.

Justice Samuel Alito jumped in to clarify that the statement about disease came from a friend-of-the-court brief. In other words: it is not evidence in the record. That’s extremely important. No trial court below established this as a fact, so the Supreme Court is not supposed to presume it as true.

This case brings out a thread of commerce-clause analysis that’s not been explored much. That is, how the morality of a regulation is defined. The Humane Society of the United States was behind Prop 12’s ballot initiative. Animal welfare is its primary concern, arguably more than the health and safety of people.

Justice Clarence Thomas wondered the limits of that in this question to lawyer Mongan for California:

THOMAS: How far would you carry that? Could you -- other than beyond the health and safety concerns that you might have here, you'd say moral concerns. Could it extend to a state that has, for example, different political views on certain issues that are important to your voters?

MONGAN: I don't think so, Your Honor…

Mongan going on to say California is not passing moral judgment on the policy choices of other states. He acknowledges that to bar imports of goods for such reasons would conflict with the so-called Dormant Commerce Clause that court-made doctrine barring state protectionism.

Discerning ears could hear another hot topic dangling in the air: abortion. Nobody even mentioned it, but with nationwide abortion rights thrown out in June, implications of a decision in this case are clear. Such as banning abortion pills mailed in from another state.

Justice Amy Coney Barrett used other hot topics to make the point to Mongan, lawyer for California:

BARRETT: So, could you have California pass a law that said we’re not going to buy any pork from companies that don’t require all their employees to be vaccinated, or from corporations that don’t fund gender-affirming surgery? Or that sort of thing?

Mongan answered no, you can’t condition sales in-state on some company policy.

Barrett pressed on:

BARRETT: But couldn’t Californians have a moral interest in saying they don't want to be complicit and open their supermarket shelves to the wares of a company that mistreats its employees, for example, by not providing certain forms of healthcare?

MONGAN: So I -- I -- I certainly could imagine a state articulating that type of moral interest, but I don't think that stating the moral interest is the end of the constitutional analysis.

The justices spun hypotheticals to find the constitutional principle.

Justice Alito wondered whether pork producers and eaters might retaliate against California by saying “we’re worried about water shortages, so no almonds from irrigated fields in California can pass through our state.” He asked Mongan, lawyer for California:

ALITO: 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: No, Your Honor, that's certainly not how I would put it.

Bishop for the pork farmers suggested California could use less drastic means to accomplish what it wants. For example, put a label on pork that says in big letters: “This is immorally produced.”

Some justices seemed to like that idea.

Justice Elena Kagan looked down the road to the logical conclusion if California’s policy goals win here:

KAGAN: ... a lot of policy disputes can be incorporated into laws like yours. You know, one, California can do laws that you have to be pro-labor union. And Texas can do laws that say you have to be anti-labor union, you know, close shop, open shop. You could have states making immigration policy, essentially, through these laws. You could have states doing a wide variety of things through the mechanism of saying, well, unless you comply, you can't sell goods in our market. And, you know, we live in a divided country, and the -- the -- the balkanization that the framers were concerned about is surely present today. You know, do we want to live in a world where we're constantly at each others' throats and, you know, Texas is at war with California and California at war with Texas?

MONGAN: Right, I -- I certainly…

Supreme Court precedent holds that the the power of states to pass laws interfering with interstate commerce is limited when that law imposes an undue burden on businesses. And some states have laws that explicitly permit what California forbids as far as pig confinement goes.

Chief Justice John Roberts saw the overall problem in this comment to Jeffrey Lamken, lawyer for the Humane Society:

ROBERTS: I think people in some states, maybe the ones that produce a lot of pork, in Iowa or North Carolina or Indiana, may think there's a moral value in providing a low-cost source of protein to people, maybe particularly at times of rising food prices. But, under your analysis, it's California's view of morality that prevails over the views of people in other states because of the market power that they have.

Trends in consumer demand do appear to be growing in the direction of meat derived from more animal-friendly procurement. Meanwhile, pressure from California regulations caused one of the biggest pork producing companies in the country to announce it will close early next spring.

My best guess is that the pork producers will win this case, based on established precedent and concerns the justices have with economic balkanization.

But does our constitutional structure prevent states from requiring that producers consider the welfare of animals? One friend-of-the-court brief cited C.S. Lewis, who called animal suffering at human hands a “question of justice.” Lewis asked, “What shall be done for these innocents?” And in that quote, hAnd in that quote he was talking about animals treated cruelly.

And that’s this week’s Legal Docket.

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