BOSTON (State House News Service) — A California law linking the sale of pork to how the animals were housed there and in other states "threatens the balkanization of the national economic union," a Biden administration attorney said Tuesday, urging the nation's high court to strike down the measure in a case that could upend a similar policy in Massachusetts.
The U.S. Supreme Court heard more than two hours of arguments Tuesday about the California law known as Proposition 12, during which President Joe Biden's administration aligned with pork industry groups in opposition to a law the state's voters enacted with the support of animal welfare organizations.
While a similar policy remains in limbo in the Bay State, U.S. Deputy Solicitor General Edwin Kneedler called for justices to deem the statute unconstitutional, arguing that it effectively applies new standards on how pigs must be treated in other states in violation of the U.S. Constitution's protection of interstate commerce.
"What we have here is basically an attempt by California to regulate what is happening in other states," Kneedler said. "That is a proposition that, once unleashed, would be difficult to contain."
The law requires any pork sold in California to come from a pig housed with more space, even if the raising, slaughtering and butchering process took place in another state with different animal welfare standards.
Arguments posed Tuesday hinged on whether those out-of-state impacts represent an unconstitutional overstep. Kneedler and an attorney representing the pork industry groups who sued said the regulation imposes the will of Californians on residents in other states, while defenders of the law said Californians have the right to limit the sale of products made using techniques they view as "immoral."
California Solicitor General Michael Mongan said Arizona and seven other states have bans on the sale of eggs from hens that are not provided a certain amount of space, while at least two dozen other states have policies on the books setting some kind of manufacturing or production standards on goods sold "to serve local moral interests."
"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," Mongan said. "The commerce clause (of the U.S. Constitution) does not prohibit that choice."
The Golden State represents a massive market, typically about 13 percent of American pork consumption, but only a tiny portion of that meat is produced within its borders -- industry groups told the court that California imports more than 99 percent of the pork it uses.
Kneedler said the law likely would not pose a problem if a larger share of pork producers operated in California, but because the overwhelming majority of the state's pork comes from elsewhere, manufacturers will need to follow standards locals might not support.
"California is 13 percent of the market. It's a huge market, but there are people -- you have to concede there are some people who can sell there. They're already labeling themselves as organic or crate-free or antibiotic-free. What is the critical difference?" Justice Sonia Sotomayor asked. "How much of the market does the producers in Iowa have to control? All of it? Or just a small part of it? And why does that make a difference, because no one's forcing them to sell to California. They can sell to any other state they prefer to sell to."
Timothy Bishop, an attorney for the National Pork Producers Council, replied that producers slaughter roughly 13,500 pigs every day that were raised in compliance with California's standards -- just about a fifth of the amount needed to meet the state's daily pork consumption.
If the law stands, both Kneedler and Bishop argued that it could trigger a flurry of interstate regulatory sniping. Other states might feel empowered to require all products sold within their border be produced by union laborers, for example, or retaliate against California by placing extreme restrictions on one of its big exports.
Mongan agreed that such an outcome could be "the logical conclusion of our position," but he said the impact would be balanced by "political checks" as constituents grapple with an altered market.
"If you adopt a regulation that is just too burdensome to comply with, then the industry will stop serving a state, and the state has to decide: do we want our regulation, or do we want pork?" he said.
The impact on other states was on the minds of justices, who asked several times not just about how pork producers would fare under California's regulations but whether other existing state laws, such as a requirement that imported firewood be treated with certain pesticides to prevent inadvertently ferrying invasive insects to a new territory, might topple if the court sides with petitioners.
"There must be many, many state laws that regulate extraterritoriality, outside of their territory, in the way that you're saying is impermissible," asked Justice Amy Coney Barrett. "Would this have far-reaching consequences?"
"Those rules are not going to fall," Bishop replied. The kinds of policies that could get unwound, he added, are those like a part of an Indiana vaping law requiring out-of-state manufacturers to meet specific operational standards, which an appeals court struck down in 2017.
Parties agreed that California's breeding pigs standards will increase the costs on farmers and other producers, but they diverged on exactly how those costs will be distributed.
Mongan argued that manufacturers have the ability to "segregate and trace" which pigs and products will go toward California consumers, meaning "you can pass along the increased costs of production."
Responding to a line of questioning from Justice Neil Gorsuch, Bishop contended that it is impossible to direct all cost increases solely to California because breeders do not know where the products of the pig they are raising will go.
"We sell everything except the oink," Bishop said. "The blood, the fat, the collagen -- everything is sold and it's sold around the world in response to demand. Every piece of that pig is going to bear the significant cost of raising pork the way that California demands."
A few moments later, Gorsuch asked whether the balancing act industry groups sought would entail "a form of enshrining non-textual economic liberties into the Constitution," calling that kind of action "a project this court disavowed a long time ago."
"We're going to have to balance your veterinary experts against California's veterinary experts, the economic interests of Iowa farmers against California's moral concerns and their views about complicity and animal cruelty -- is that any job for a court of law?" Gorsuch said. "The commerce clause, after all, is in Article I, which would allow Congress to resolve any of these questions."
Regulators, animal welfare groups and a wide range of industry groups including restaurateurs in Massachusetts are closely watching the case as an indicator of whether similar pork regulations will take effect here.
Bay State voters approved a farm animal welfare law in 2016, and after lawmakers tweaked the language, a section governing breeding pigs and pork products closely resembling the California law was set to take effect Aug. 15. However, Massachusetts officials agreed with industry groups to pause implementationof the pork regulations until the outcome of the California case becomes clear.
Kneedler told justices on Tuesday that the livestock housing standards in California and Massachusetts stand as outliers compared to other states.
"With respect to the specific context here, there are states that ban raising pigs using gestation pens, let's say, but most of those are just limited to the state where the pigs are being raised," Kneedler said. "Massachusetts also has an extra ban."
Attorney General Maura Healey signed onto an amicus brief filed Aug. 12 in support of California's law, joining her peers in Illinois, Michigan, Colorado, Connecticut, Washington, D.C., Maine, Maryland, Nevada, New Jersey, New Mexico, New York, Oregon, Rhode Island and Washington state.
The Supreme Court, where six out of nine justices were appointed by Republican presidents, looms as a potentially seismic factor in the Democrat-dominated Massachusetts Legislature.
State lawmakers this year rewrote a section of the state's firearms law after the court deemed unconstitutional a New York law requiring residents to demonstrate a "special need" before receiving a license to carry a firearm in public for self-defense, in the process singling out a "good reason" section of Massachusetts law as analogous. The court's decision to overturn Roe v. Wade also prompted action in Massachusetts to protect access to abortions.
The Biden administration drew sharp criticism from animal rights advocates for its work to support the pork industry groups seeking to overturn California's law.
"In an earlier stage of the litigation, the Trump Administration submitted a brief on the side of the pork producers. But it was a shocker not only (to) animal welfare advocates, but also environmental protection champions and clean energy backers, when the Biden Administration refused to reverse Trump's course and continued its support of the corporate pork industry â€“ stubbornly going against the litany of voices from local family farmers and farming businesses, public health organizations, 15 states, worker safety organizations, veterinarians and animal welfare scientists, economists, top-tier legal scholars, state farmer associations, and even ethicists who believe Prop 12 was a proper exercise of state authority," Animal Wellness Action and the Center for a Humane Economy wrote in a newsletter on Tuesday.
Written by Chris Lisinski/SHNS