Protecting Pork Production: TDC Weighs in to Argue California Went Too Far

Can California choose how pigs are raised in Iowa or Ohio? Should California state agents be able to fly across the country and inspect farms, demand reams of paper records, and hassle people who are not California citizens? The Taxpayer Defense Center has weighed in to say “no” in a case the U.S. Supreme Court will consider next Term. 

National Pork Producers Council v. Ross is a challenge to a California law prohibiting the sale of pork unless the pigs—99.87% of which come from outside the state—are raised in a way consistent with California’s restrictive animal-rights standards. 

This isn’t the first time California has tried to nationalize its policy preferences. California has had cases brought against it in a variety of contexts, from laws governing subjects from foie gras to low-carbon fuel, for example, but the Supreme Court had passed on those cases. This time, the Supreme Court has agreed to hear the case and decide what happens to pork production standards.

The Dormant Commerce Clause refers to the prohibition, implicit in the Commerce Clause, against states legislating in a way that discriminates against or excessively burdens interstate commerce. The Constitution’s Commerce Clause is a grant of power to Congress to regulate interstate and foreign commerce, and some of the current justices on the Supreme Court have expressed concern that the Dormant Commerce Clause does not have a basis in the original meaning of the Constitution. 

In our amicus curiae (“friend of the court”) brief, NTUF argues the very purpose of the Founders in shedding the Articles of Confederation and writing the Constitution instead was to protect interstate commerce, and that the Dormant Commerce Clause is within the original understanding of the Constitution. A state trying to reach beyond its borders to regulate interstate trade was a real problem at the founding, as reflected in James Madison’s Journal covering the Constitutional Convention and the Federalist Papers defense of the federal Constitution. Multiple provisions of the Constitution protect interstate commerce, but the Commerce Clause is the broadest bulwark now available.

The Dormant Commerce Clause, applied early in our history under the Marshall Court, exists to resolve cases and controversies on state regulation of interstate commerce where Congress has not expressly legislated. To avoid the Dormant Commerce Clause is to leave unresolved serious cases reaching the core of why the Founders drafted the Constitution. One of the leading Dormant Commerce Clause cases, Pike v. Bruce Church, provides a narrow, as-applied framework for resolving cases. It grants relief where needed, without the Supreme Court legislating from the bench. 

In our brief, we encourage the Court to use Pike to resolve the Pork Producers challenge and conclude that California went too far in seeking to appoint itself as regulator of the treatment of pigs in other states. The Supreme Court will hear oral arguments in the case on October 11, 2022