This is the sort of brain-teaser law school professors love to play with in lectures and class discussions.
California Proposition 12, enacted by that state’s animal-loving voters in 2018, “makes it illegal to sell pork in California unless the pig it comes from was born to a sow housed with at least 24 square feet of space and in conditions that allow the sow to turn around freely without touching her enclosure.”
Iowa pork farmers are crying fowl. (See story here.)
To most people, this is about humane treatment of farm animals vs. farmers’ wish to make bucks by raising hogs as cheaply as possible. A lot of law students, too young to have become cynical in the ways of the world, also look would at it that way.
But to jaded old law professors and Supreme Court justices who eat sausage with eggs from crated hens, it’s about whether California can tell Iowa pork farmers how to run their farms.
I’ve been a lawyer for many years, so I can handle mind-twisting legal questions about as well as the newer Supreme Court justices (not counting the unconfirmed one), but this problem puts me in a delicate position because I’ve previously implied that universities should be run like farms (here), although in my defense, I never advocated imprisoning the animals to get more eggs or bacon fat, much less killing them for their meat.
To the contrary, I advocated putting the animals in charge of the farm (likening universities to farms in the process, and by implication, their graduates to eggs and bacon), which some people may call socialism, although I was criticized for that post for other reasons (quoted in the post, linked above).
Anyway, any jaded old lawyer like me will instantly recognize this as a Commerce Clause issue, and in fact the Iowa pork farmers’ lawyers argue that “Proposition 12 in practical effect regulates wholly out-of-state commerce and is therefore unconstitutional,” and the lawyers defending it argue that “Proposition 12 regulates only in-state sales of products brought in from elsewhere and ‘is entirely indifferent to the ways products sold in other states are priced or produced.'” (See story link above.)
All the Commerce Clause (U.S. Const. Art. 1, §8, Cl. 3) says (in relevant part) is, “The Congress shall have power to … regulate commerce with foreign nations, and among the several states, and with the Indian tribes; …”
This simple sentence has spawned a vast body of legal literature and case law.
A couple things are self-evident, though. Congress, not the President, regulates interstate commerce. And California’s authority to regulate farm practices stops at the state line. However, California almost certainly can regulate products sold in California, for example, by enacting safety standards for toys, cribs, and child sleepwear sold in California.
When the Supreme Court hears this case, that’s what the arguments will come down to. Superficially, at least, it looks to me like California ought to win this case, because Proposition 12 doesn’t purport to regulate Iowa pork sold in Minnesota or New Mexico or the Virgin Islands, but only pork sold in California. If they can’t regulate this, then by logical extension Texas can’t prevent women from getting abortions in other states, either.
But I’d be willing to bet that some of the justices, especially recently confirmed ones, wouldn’t answer either one of these questions correctly on a law school exam.
Somewhat related story: Are these pictures the same? (Click on image to enlarge) The justices also will tackle the question, “How different does [a] new work [of art] have to be to become something new, not simply an appropriation of someone else’s creation?” To get a rough idea of how complicated this issue and the legal arguments are, read that story here.