Will the Supreme Court overrule California’s Proposition 12?


By The Hon. Daniel Oliver

History repeats itself in California with a law that may prevent pork from being imported into the state.

In 1986 and ’87 when I was Chairman of the Federal Commission, I (actually “we” at the FTC) took on then-New York State Agriculture Commissioner Joseph Gerace for his support of the New York milk cartel and a law that prevented New Jersey dairies from selling milk in most of New York City. On the steps of City Hall, I said Mr. Gerace had “brazenly upheld one of the most anti-consumer monopolies in the country.” I then awarded him the FTC’s uncoveted Consumer Fleece Award, and because it was Christmastime, I wished him a “Fleece Navidad.” The quip garnered nationwide headlines, public support for the dairy cartel collapsed, and Mr. Gerace resigned under pressure from the Mario Cuomo administration.

Flash forward: In 2018, the voters of California ratified Proposition 12, which regulates the living conditions of pigs.

Twenty states and the Justice Department (in National Pork Producers Council & America Farm Bureau Federation v. Karen Ross, et al.) sued California. They lost in the Ninth Circuit Court of Appeals and are now asking the Supreme Court to review and overrule the Ninth Circuit. The issue at stake is fundamental: As in the New York milk case, can one state close off commerce from, or regulate the behavior in, the other states?

Proposition 12 bans any California business from knowingly selling to restaurants, wholesalers or the general public pork meat that the business owner knows or should have known came from an animal (wherever raised, i.e., in whatever state or country, e.g., Canada) that had been confined in a “cruel” manner. Proposition 12 defines “cruel” as having less than 24 square feet of living space.

You may find California’s solicitousness for pigs’ welfare touching, but there are consequences. Retooling an entire farming operation to provide the animals with 24 square feet of living space turns out to be expensive. The same goes for chickens and calves. That may be okay with you if you’re a Silicon Valley techie blessed with a six-figure income and a seven-figure 401(k). Still, it complicates Sunday morning breakfast with eggs and bacon if you’re just a working stiff with an hourly wage being hammered by inflation.

Still, we have to note that this law was enacted through the referendum process: The citizens themselves actually chose to vote for it.

The basic issue is that, under the Commerce Clause of the Constitution, American states may not erect barriers to interstate commerce. One of the reasons the Constitution was written the way it was, was precisely to facilitate interstate commerce. Several states had been erecting trade barriers to protect their own citizens’ economic interests, and the Founding Fathers realized that was disastrous.

The Commerce Clause does not prohibit states from exercising their police powers in appropriate circumstances. If unhappy pigs pose a health danger to the citizens and other residents of California, then regulations aimed at increasing their (the pigs’) happiness might not be unconstitutional.

No such claim was proven about the 24-foot living space requirement. The legislation was just an exercise of animal rights political correctness not shared, apparently, by the voters in the other 49 states. If the voters of California want to do crazy politically correct things that affect only themselves, that’s okay — maybe — at least they wouldn’t be unconstitutional. But Californians shouldn’t be allowed to pass laws that have the effect of requiring people of other states to engage in the same politically correct activities.

And, it is worth noting, the law primarily affects farming practices outside of California. The people of California consume about 13% of the nation’s pork, but the state has only about 0.1% (that’s what’s leftover after 99.9%) of the country’s breeding sows.

A North Carolina economist calculated that only about 4% of U.S. pork producers currently meet California’s living space requirements, and it is estimated that it would cost between $294 and $348 million nationally to reconstruct their sow housing facilities and overcome the productivity loss that Proposition 12 imposes.

As one of two fig leaves for justifying Proposition 12, the California law lists the public interest of protecting Californians from food-borne illness and associated negative fiscal impacts, yet the state offers no proof that living space would accomplish either of those goals.

The astute reader may wonder how it is then that California can enact automobile emissions standards that are stricter than those that apply to the rest of the country. The technical answer is that the federal government expressly authorized California to adopt separate standards. The political answer is power politics. Those are not in play in this case.

This case involves a conflict between two fundamental American constitutional concepts: federalism (the states acting as laboratories) and interstate commerce (one unified national market). States should be able, within certain limitations, to make their own laws for their own residents — when those residents bear the burdens of those laws. But states should not make laws that hinder or prevent interstate commerce, such as laws that push their cost onto other states. Because there are essentially no pigs raised in California, the state’s regulation affects pig farming located (almost) entirely outside of the state, which means that the law’s effect is (almost) entirely on interstate commerce, not on what happens in California. It should therefore be struck down.

Adam Smith said there’s a lot of ruin in a nation, by which he meant that people could do a lot of stupid things before destroying a country. But not, presumably, an unlimited number of stupid things. Erecting an interstate trade barrier, as California has sought to do, is a stupid thing (like New York’s trying to keep out New Jersey milk) — and the Supreme Court would do well to take this case and overrule the Ninth Circuit.

Nothing contained in this blog is to be construed as necessarily reflecting the views of the Pacific Research Institute or as an attempt to thwart or aid the passage of any legislation.

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