Skip Navigation

Pork in the Road

Original illustration by Kyla Dang '24, an Industrial Design major at RISD

The average American pig is raised in a space of less than eight square feet. In 2018, taking action against this widespread animal cruelty, Californians voted for Proposition 12, or the Farm Animal Confinement Initiative. Under the proposition, animal products are barred from being sold in California if producers do not meet set minimum space requirements. For pigs, this area is 24 square feet. However, not everyone is on board with this animal-friendly law. On December 5, 2019, the National Pork Producers Council (NPPC) filed a legal complaint against the proposition. Citing the US Constitution’s Commerce Clause, the group argued that Proposition 12 unfairly burdens interstate trade. This term, the case has reached the Supreme Court, and it is evident that a ruling either way will have substantial implications far beyond just pork consumption. The constitutional resolution is clear: To protect federalism, the justices must rule in favor of the state of California. 

At the core of American democracy is federalism, or the mode of rule in which the federal and state governments share political power. One of the most significant outcomes of this power-sharing arrangement is the substantial degree of autonomy that is granted to the states. With this closer level of representation, federalism ensures that state laws, initiatives, and programs cater to citizens’ unique needs and values. This ensures citizens are given a greater voice in government. 

Because of this delegation of decision-making, California was able to develop its unique proposition system. Using propositions, Californians are able to bypass their legislators and petition to put issues they care about directly on the ballot. Voters are then able to take to the polls, and, with a simple majority, pass initiatives into state law. Proposition 12 is one of 79 successful direct initiated state statutes in California’s history, passing with 63 percent of the vote. 

According to the NPPC, Proposition 12 violates the Commerce Clause, found in Article I, section 8 of the Constitution. Explicitly, the clause enables the federal government “to regulate commerce with foreign nations, and among the several states, and with the Indian tribes.” However, the law has long been interpreted as having a restrictive component: The Dormant Commerce Clause prohibits states from passing legislation that unduly burdens or discriminates against interstate commerce. The NPPC’s case hinges on this function of the clause. California produces just 0.1 percent of the nation’s pork, yet it accounts for 13 percent of the nation’s consumption. As a result, the burden of the law will principally fall on out-of-state farmers, which, the NPPC alleges, violates the Dormant Commerce Clause. 

However, the NPPC’s reliance on the Dormant Commerce Clause to make its case has left it with some shortcomings. Foremost, the clause is not universally accepted. As former Justice Antonin Scalia stated in his dissent in the 2015 case Comptroller of Treasury of Md. v. Wynne, “The fundamental problem with our negative Commerce Clause cases is that the Constitution does not contain a negative Commerce Clause. It contains only a Commerce Clause.” Current Justices Clarence Thomas and Neil Gorsuch share this opinion. 

Even if the current Court upholds the dormant Commerce Clause, the NPPC still has a significant burden of proof in light of legal precedent. In the 1970 case Pike v. Bruce Church, Inc., the Supreme Court ruled that, contrary to strict interpretations of the Dormant Commerce Clause, laws which implicitly affect out-of-state commerce are constitutional as long as the burden they create does not outweigh the benefit they provide to those in a state. Thus, the NPPC’s case depends on proving that the law produces a great burden on non-Californian businesses. Lawyers for the interest group argue that Proposition 12 will cost out-of-state pig farmers an extra 13 dollars per pig, a 9.2 percent increase in production costs. This, they argue, is an unconstitutional imposition on producers from other states. Major pork producers, however, have disputed these facts. Hormel Foods, which owns Applegate Pork, confirmed that while the proposition will add “complexity to the supply chain,” it faces “no risk of material losses from compliance with proposition 12.” Tyson Foods similarly stated that the additional costs associated with production will be insignificant. Without clear proof that the law will have significant economic consequences, following the precedent of Pike, the Supreme Court may reverse and remand the case, pushing the NPPC lawsuit down to a lower court. 

Perhaps more compellingly, the NPPC argues that the broader political implications of Proposition 12 would be ruinous. Allowing states to bar products from being sold on moral grounds, they argue, may let states weaponize commerce to further partisan agendas. Supreme Court Justices Amy Coney Barrett, Brett Kavanaugh, and Elena Kagan agreed with these claims, stating that if Californians can stop goods from being sold in their state due to animal cruelty, other states could, for example, stop goods produced by unionized workers, transgender-affirming companies, or unvaccinated workers from being sold in their states. Giving states a weapon with which to press their agendas onto other states may further polarize an already divided nation. 

Although these concerns may be valid, the proposition exemplifies an exercise in popular democracy. As California Solicitor General Michael J. Mongan stated, “California voters chose to pay higher prices to serve their local interest in refusing to provide a market to products they viewed as morally objectionable and potentially unsafe. The Commerce Clause does not prohibit that choice.” Ruling against California will erode US federalism and the democratic right to local representation that it was designed to protect. It will also create a dangerous precedent. The power to regulate business within their own borders is among the most important powers granted to states in the Constitution. 

States’ ability to pass non-explicit economic legislation is under threat. Economic policies in one state will inevitably impact the economies of others. Environmental laws, such as numerous states’ renewable energy regulations, have spillover effects on out-of-state energy industries. A minimum wage raise in one state impacts labor in bordering states. Product safety laws, like New York’s regulations on lead-containing products sold in the state, also impact out-of-state producers. Even Medicaid policies, such as Michigan’s regarding drug rebates, are in jeopardy. Overturning Proposition 12 will establish a precedent barring states from passing any laws that affect other states. Banning states from legislating on these issues will deprive them of the ability to cater legislatively to the values and needs of their citizens protected under federalist principles.

California voters agree. They do not want pork produced in what they deem unethical circumstances to be sold in their state. The state of California is tasked with representing the voice of its people. Californians should be able to see their will enacted into law. National Pork Producers v. Ross brings up challenging political questions. And although the political ramifications surrounding the issue are far-reaching, the constitutional answer to this issue is clear. A ruling in favor of the NPPC will erode states’ rights and the federalist values that define US democracy. The Supreme Court must rule in favor of Ross and the state of California.