Most every state was affected one way or another by decisions handed down by the U.S. Supreme Court in its recently ended term. A decision upholding California’s restriction on the sale of certain pork products in the state of California, however, may have an outsize impact on Iowa, which is the No. 1 pork producer and exporter in the nation.

In 2018, California voters approved a ballot initiative barring the sale in that state of pork products derived from breeding sows confined “in a cruel manner” in crates so small they cannot lie down, stand up, or turn around. The National Pork Producers Council and the American Farm Bureau Federation sued in federal district court in California, arguing the law is unconstitutional under a doctrine known as the dormant Commerce Clause. The suit was dismissed by the trial court for failure to state a claim, which was upheld by the U.S. Court of Appeals for the Ninth Circuit.

The U.S. Supreme Court on May 11 affirmed the Ninth Circuit in a 5-4 decision in which the Court disagreed with the plaintiffs’ claim that Proposition 12 is an unconstitutional regulation of interstate trade.

The majority opinion was written by Justice Neil Gorsuch and joined by Justices Clarence Thomas, Sonia Sotomayor, Elena Kagan, and Amy Coney Barrett. Chief Justice John Roberts filed an opinion concurring in part and dissenting in part, which was joined by Justices Samuel Alito, Brett Kavanaugh, and Ketanji Brown Jackson.

While the plaintiffs were unable to win the support of a majority of the Court for their theory of a dormant Commerce Clause violation by California, the justices were splintered on precisely how the Court should consider issues raised by the pork producers in future cases. Indeed, four justices each authored separate opinions concurring with or disagreeing with a part of Gorsuch’s opinion that focused on whether there should be a benefit-vs.-burden balancing test in such cases.

The pork producers argued that because California imports almost all of the pork it consumes, the costs of complying with Proposition 12’s requirements fall on out-of-state pork producers, such as those in Iowa.

In order to comply with Proposition 12, pork producers argued that they would have to make substantial capital investments, which in term would likely be passed on to consumers. The pork producers argued that this constituted an unconstitutional burden upon interstate commerce.

The plaintiffs argued that California’s law violated the dormant Commerce Clause doctrine, which has been recognized by the Court as a “negative command” that bars the states from imposing certain economic regulations where Congress has failed to do so under its Commerce Clause power to regulate commerce among the States.

While the Court has said the states have substantial leeway to adopt their own commercial regulations, Justice Gorsuch wrote that the Commerce Clause prohibits enforcement of state laws driven by economic protectionism designed to benefit in-state economic interests by burdening out-of-state competitors.

Rather than claim Proposition 12 amounts to economic protectionism, however, the petitioners argue it violates an “almost per se” rule suggested by the Court’s dormant Commerce Clause cases that forbids enforcement of state laws that have the “practical effect” of controlling commerce outside the state.

The Court rejected the petitioners’ theory.

“Petitioners’ ‘almost per se’ rule against laws that have the ‘practical effect’ of ‘controlling’ extraterritorial commerce would cast a shadow over laws long understood to represent valid exercises of the States’ constitutionally reserved powers,” Gorsuch wrote. “It would provide neither courts nor litigants with meaningful guidance in how to resolve disputes over them. Instead, it would invite endless litigation and inconsistent results.”

Writing for a controlling plurality of the Court, Gorsuch also rejected the plaintiffs’ argument that any benefits from Proposition 12 must be weighed against the burdens it imposes on interstate commerce. The pork producers cited the Court’s 1970 decision in Pike v. Bruce Church, which involved Arizona’s requirement that cantaloupes grown in Arizona must be processed and packed in Arizona.

The Court in Pike said Arizona’s regulation was an effort to insulate in-state processing and packaging businesses from out-of-state competition. The decisive issue in Pike and subsequent cases was whether a state regulation is discriminatory, whereas the pork producers did not argue that the effect of Proposition 12 is purposeful discrimination against out-of-state businesses. Because the pork producers did not show discrimination, the Court held, it was not necessary to balance the benefits and burdens under the Pike test.

The Supreme Court’s ruling on California’s Proposition 12 does not, however, necessarily close the door to future efforts by pork producers to defend their industry against such economic regulation of their products by other states in other circumstances.

In his separate opinion concurring in part and dissenting in part, Chief Justice Roberts, joined by Justices Alito, Kavanaugh and Jackson, said he would have found that the petitioners “plausibly alleged a substantial burden against interstate commerce,” and he would have remanded the case for the Ninth Circuit to decide whether petitioners stated a claim under Pike.

In support of that argument, Justice Kavanaugh, also writing separately, pointed out that while Gorsuch’s opinion for the Court rejected the plaintiffs’ dormant Commerce Clause challenge on grounds that they did not sufficiently allege that California’s law imposes a substantial burden on interstate commerce under Pike, that argument could be advanced in a future case.

“It appears,” he wrote, “that properly pled dormant Commerce Clause challenges under Pike to laws like California’s Proposition 12 (or even to Proposition 12 itself) could succeed in the future.”

Or, as Gorsuch pointed out in the majority opinion, rather than rely on the courts for relief, the plaintiffs could make the case that Congress should exercise its power to regulate the interstate trade in pork by preempting state laws such as California’s Proposition 12.


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