The implications of Council of National Pork Producers v. Ross
Council of National Pork Producers v. Ross, a case currently pending before the Supreme Court, could fundamentally reshape America’s politics, economy, and jurisprudence. This seemingly mundane litigation about standards of meat production carries profound implications for our country. It centers around Prop 12, a California ballot measure passed in 2018. Among other things, Prop 12 prohibits pork raised in a “cruel manner” from being sold in California. To comply, pig enclosures must measure at least 24 square feet. However, 94 percent of U.S. farms do not meet Prop 12’s standards, according to a letter from the Council President. California thus confronts pork producers with a choice; overhaul their facilities or withdraw from its lucrative markets. While California alone accounts for 13 percent of U.S. pork sales, very little pork is actually produced within its borders. As a result, Prop 12 primarily impacts out-of-state farmers, raising questions of constitutionality under the commerce clause.
This case could bring a sweeping redefinition of the court’s role in mediating interstate commerce. Article 1, Section 8 gives Congress the explicit power to “regulate trade between the states.” Under current interpretation, the Commerce Clause doesn't just grant authority to Congress, it implies court-enforced limits on state regulations that impede commerce. This is known as the “dormant” Commerce Clause. However, since judicial intervention in such matters is not written in the text of the Constitution, the conservative and particularly low-institutionalist justices are leery of the dormant commerce clause. The Constitution, they argue, gives Congress the authority to intervene in these matters – not the court. Justice Clarence Thomas has written numerous times that he would eliminate the dormant commerce clause altogether. Such a ruling would constitute a seismic departure from court jurisprudence and a historic shift of authority to Congress.
The court’s decision in this case could give new meaning to precedent in addition to the Commerce Clause itself. To simplify the case law, there are two main precedents at issue in Pork Producers: Pike v. Bruce Church and Healy v. The Beer Institute. Pike lays out a balancing test to determine when burdens on interstate commerce can be justified. Under Pike, states “may regulate to advance a legitimate local public interest ... unless the burden imposed on [interstate] commerce is clearly excessive in relation to … local benefits.” The pork-producing petitioners claim that Prop 12’s moral basis cannot justify its economic burden under the Pike Test because it isn’t a legitimate local interest. The Court has yet to make this specific determination. Healy also leaves room for ambiguity and has been applied differently throughout the circuits. In its broadest reading, Healy bans regulations attempting to extraterritorially manipulate commerce in other states. However, other rulings such as Pharmaceutical Research and Mfrs. of America v. Walsh have interpreted Healy as merely prohibiting states from explicitly regulating out-of-state prices. Pork Producers argue for a broad interpretation of Healy, asserting that Prop 12 violates the extraterritoriality principle by seeking to regulate economic activity occurring outside of California’s borders. Respondents posit that Prop 12 meets Pike’s requirements and does, in fact, advance health interests. They further argue that the extraterritoriality doctrine is limited to price-affirmation statutes, and therefore does not apply to Prop 12. Given these factual disputes, the Court may remand the case to a lower court without reaching the merits.
If not, the outcome of this case could greatly impact politics and the economy. Petitioners advocate for a categorical prohibition of all regulations that condition in-state sales on out-of-state producers operating a certain way. Such a rule would nullify numerous existing laws. To cite an example given at oral argument, Maine would no longer be able to require that imported firewood be treated for certain invasive species. Adopting this new categorical ban would drastically reduce states’ ability to regulate based on local interests, potentially diminishing their sovereignty and shifting pressure and authority to Congress.
On the flipside, ruling in California’s favor and upholding Prop 12 under Pike means approving morality as justification for disrupting interstate commerce. This would enable states to extraterritorially impose their morals through economic coercion. For example, Texas could ban all products manufactured by companies that cover abortion in their health plans or require COVID-19 vaccinations for their workers. The proliferation of such regulations would reduce efficiency, fragment the economy, and inflame culture war tensions.
Given its current partisan gridlock, many question whether Congress is capable of mediating contentious issues of interstate commerce. It could remain paralyzed, allowing interstate cultural and economic warfare to rage unfettered. As we await for the court’s opinion, one thing remains certain: the implications of this case will reach beyond standards of pig confinement.