Californians passed a landmark law that bans cages for pigs. Now the Supreme Court could overturn it.
The Supreme Court regularly makes decisions that directly affect the lives of tens of millions of Americans. But next week, the Court will hear oral arguments in a case that could decide the fate of millions of pigs.
The case — National Pork Producers Council v. Ross — hinges on a simple question: Can California set its own standards for how pigs are treated on farms, even when they’re raised in other states?
The case centers, quite literally, on how sausage gets made in the US. Each year, over 6 million female breeding pigs, or sows, are raised in “gestation crates” — narrow metal crates that confine the pigs so tightly they’re unable to turn around for the duration of their four-month pregnancies (and they have about four pregnancies in their three- to four-year lifetimes). As the pioneering animal welfare scientist Temple Grandin once put it, the crates are akin to forcing a human to live much of their life in an airline seat.
The American Public Health Association says confining pigs so intensively also increases their stress levels and weakens their immune systems, which makes them more susceptible to infectious disease. (And given the ease with which some zoonotic viruses can pass from swine to humans, that threatens us as well.)
In 2018, over 62 percent of California voters supported a state ballot measure called Proposition 12 that would ban the crates and require sows be raised with at least 24 square feet of space. Importantly, the measure applied whether or not the pigs had been raised in California, so all whole, uncooked pork sold in the state would be required to be produced according to California’s standard. Given the vast size of the state’s market, it’s having a transformative effect for pigs across the country — just as California’s stricter emissions standards for automobiles have changed the way cars are made nationwide.
The law has similar provisions for cage-free eggs and crate-free veal, which have already gone into effect — the challenge in the Supreme Court only covers pork, which will go into effect in five months. (Disclosure: The ballot measure effort was led by the Humane Society of the United States, an organization I worked for from 2012 to 2017.)
The win was a watershed moment for the movement against factory farming, with some 1 million pigs, 40 million hens, and tens of thousands of calves to be taken out of cages each year once the law is fully implemented. It also built momentum to banish cages for hens from other states in the following years.
“What may seem like a small, incremental change on paper, to the life of that pig, it’s immense,” says Chris Green, executive director of Harvard Law School’s animal law and policy program.
The agriculture industry backlash was inevitable, asserting it would cost pork producers $293 million to $347 million to comply — a cost they said would invariably raise the price of pork not only for Californians, but for all Americans. In the years after it passed, meat trade groups filed three separate lawsuits against the pork provision. Each challenge argued the same point: California’s ban imposes an unfair burden on out-of-state pork producers, who produce most of the pork sold in California. (California produces a lot of dairy and eggs but less than 1 percent of the nation’s pork, while consuming around 13 percent of it.)
The pork producers argued that retrofitting their barns to be crate-free would be too costly, and that they couldn’t easily segment crate-free pork from crated pork they might be able to sell in other states. That purported inability forces them to raise more of their pigs crate-free than needed, a cost they say will have to be passed on to consumers nationwide. However, several major pork producers now say they can comply (more on this later).
All three lawsuits were dismissed by lower courts, but the Supreme Court took up the one filed by the National Pork Producers, the industry’s main trade group, and the American Farm Bureau Federation, an insurance company and agriculture lobbying group.
While it might be easy to assume that a conservative-dominated Court will rule in favor of business interests, it’s hard to predict how the case will ultimately turn out. Animal welfare questions don’t adhere to party lines as neatly as you’d think. Democrats are only a little more likely to say cruelty to farm animals is a moral concern, and plenty of red and purple states have passed laws to reduce the suffering of farm animals. A group of conservative thinkers filed an amicus brief in support of California’s animal welfare law while Biden’s Justice Department filed one in opposition.
“Anyone who says they know what’s going to happen is lying to you or themselves,” says Green.
The Court’s ruling won’t be delivered for months, but wherever it lands will have long-term effects on the welfare of the animals we factory-farm for food, potentially setting back the movement to improve their conditions by decades — or propelling it forward.
The pork industry’s contradictory argument against California, explained
The animal welfare activists have a straightforward case: Pigs and other animals raised for food are thinking, feeling animals — like dogs and cats — and shouldn’t be treated like mere widgets in a factory. Plenty of scientific research has concluded what is intuitive to laypeople: Confining animals in tiny cages for years on end is really bad for their well-being, as noted by the 378 veterinarians and animal welfare scientists who filed an amicus brief in support of California’s law.
That straightforward case has been successful at chipping away at the practice of cage confinement: 14 states have banned cages to some degree, especially for egg-laying hens, and hundreds of food companies have been switching to cage-free eggs. In 2008, under 5 percent of hens were raised cage-free; today, 35 percent are. The egg industry now welcomes a cage-free future, with the biggest producers investing heavily in cage-free barn construction, generally not opposing cage-free state legislation, and in some cases even supporting it.
But the pork industry hasn’t been so amenable to change, and has continually invoked a legal doctrine called the dormant commerce clause to challenge California’s law. As I wrote in an explainer last year about the industry’s lawsuits against Prop 12:
The industry’s core argument is that Prop 12 violates the “dormant commerce clause,” a legal doctrine meant to prevent protectionism, or states giving their own businesses preferential treatment over businesses in other states. Industry groups argue that because most US pork is produced outside California, the financial and logistical burden of complying with Prop 12 falls mostly on out-of-state producers, and that those burdens outweigh any of the law’s supposed benefits.
On the surface, they have a point. Overhauling the housing of a million pigs or more is a costly logistical nightmare. Many crate-free sows today are raised with 16 or 18 square feet of space; California’s law requires 24 square feet. Adapting to a patchwork of norms and regulations isn’t easy.
In a separate but similar lawsuit filed by the North American Meat Institute in 2019, a spokesperson for the largest US pork producer, Smithfield Foods, wrote (under penalty of perjury): “It is no exaggeration to state that the expense and complications of complying with Proposition 12 may cause Smithfield to conclude it is no longer viable to do business in California.”
Other major pork producers similarly wrote in the lawsuit that compliance with Proposition 12 would be just too costly and would significantly hamper their operations. Some went so far as to say, like Smithfield Foods, that it may force their partial or total exit from the California marketplace.
But now many in the industry say they can comply, including five of the largest pork producers: Tyson Foods, Smithfield Foods, Seaboard, Hormel, and Clemens Food Group. It’s a confusing course reversal that also weakens the National Pork Producers Council’s argument that Prop 12 is overly burdensome.
Jim Monroe, vice president of corporate affairs for Smithfield Foods, says he doesn’t see any inconsistency between the statements, writing in an email that “there is no doubt it will be more challenging to supply Californians with affordable pork with this law in place.” Monroe said the regulatory climate and escalating cost of doing business in California were factors in Smithfield Foods’ recent decision to shutter its Los Angeles County slaughterhouse. “The standards proposed are arbitrary, not based on science and require considerable time and expense without yielding any improvements to animal care,” he added.
(The National Pork Producers Council and Tyson Foods declined an interview request for this story; Hormel and Clemens Food Group did not respond to a request for comment.)
Even California says big pork producers are hard at work to comply. As noted by Civil Eats, an official with California’s state agriculture agency visited 10 hog farms and slaughter plants across the country over the last year and reported that some of the nation’s largest pork producers were constructing new barns and overhauling old ones to be California-compliant, and had already implemented tracing systems to separate conventional pork from the California-bound pork.
While the National Pork Producers Council has written a great deal about the difficulty of tracing California-compliant pork, the largest producers have long advertised their sophisticated traceability systems. As Richard Sexton, a UC Davis agricultural economist, recently told the Guardian, “Products are being differentiated in a whole variety of ways: organic, GMO-free, different properties related to animal welfare, antibiotic-free.”
The increased cost for Californians will be somewhat modest, around an 8 percent hike, according to Sexton and two colleagues, and almost no change in retail price outside California. In an amicus brief to the Court, Sexton and another UC Davis economist also stressed that the pork producers’ claim that the costs of Prop 12 compliance would be felt by all pork producers, not just those selling into California, is flat-out wrong: “Not only are [the pork producers’] arguments flawed as a reflection of basic economic incentives, but they are factually implausible.” Their research was funded, in part, by the National Pork Board, a USDA-administered program that promotes US pork, as well as the California Department of Food and Agriculture.
The price increase may be tough for Californians at a time of high inflation, especially for food, but it’s important to remember that the price of conventional meat is artificially low, due to animals who are forced to live in the most miserable conditions imaginable, and to workers who toil in dangerous conditions to raise and slaughter them. Rural citizens who live near hog farms also bear the brunt of the industry’s lightly regulated air and water pollution.
How the conservative Court might think about the case — and animal welfare
It wouldn’t be a shock if all or most of the conservative justices side with the meat industry, as several business groups (like the Chamber of Commerce) and 20 mostly red state attorneys general filed an amicus brief in support of the pork producers (15 attorneys general from mostly blue states filed an amicus brief in support of California). California is also the right wing’s favorite punching bag.
But there are some reasons to believe that the justices won’t rule along predictable political lines. Justice Clarence Thomas has said the dormant commerce clause — the legal doctrine continually invoked by the pork producers to argue its case — “has no basis in the text of the Constitution, [and] makes little sense.” Justice Neil Gorsuch has called it a source of “judicial activism.” At the same time, the liberal Justice Elena Kagan wrote the decision when the Court struck down a California farm animal welfare law in 2012, and in 2010, when the Court struck down a federal animal cruelty law, the conservative Justice Samuel Alito dissented.
And animal welfare hasn’t been as ensnared in the culture war as other issues on the Supreme Court’s docket, such as immigration and affirmative action. That becomes clear when reading the amicus brief in support of California’s animal welfare law written by Megan Wold, a former law clerk for Alito. The brief was filed on behalf of other conservative thinkers, including former George W. Bush speechwriter Matthew Scully, University of Notre Dame law professor O. Carter Snead, and writer Mary Eberstadt.
Wold wrote that voters’ support for Proposition 12
reflects concerns of ancient lineage in Western moral thought. Western philosophers and religious leaders have considered the treatment of animals to be an appropriate and important subject of inquiry for millennia. They have explained how human decency demands that animals be treated with basic respect for their needs, natures, and dignity as living creatures, and why humans are morally bound not to participate in or facilitate animal abuse.
Last week, the Washington Post conservative columnist Kathleen Parker also made a passionate plea for the Court to side with the animals, writing “… the justices that make up the high court’s conservative majority have a rare opportunity to align themselves not only with their liberal counterparts but with some of history’s greatest ethicists and philosophers.”
Fervent support for animal welfare is not uncommon among conservatives: Bob Dole championed important amendments to the Animal Welfare Act in 1985; Rick Santorum may be vehemently opposed to LGBTQ rights but is also vehemently opposed to cruelty to dogs and horses. Even if their primary motive is to slash government spending, dozens of Republican members of Congress have voted to curtail government-funded animal research experiments in recent years.
While Big Pork is behind the challenge to California’s animal welfare law, many farmers (who tend to be conservative) are in support of the law, saying that it could help level the playing field in an industry that is dominated by meat giants that cut costs by mistreating animals. One of the largest meat companies, Perdue Farms, also supports the animal welfare law (Perdue mostly raises chickens for meat but also owns Niman Ranch, a higher-welfare pork company).
If the Court does side with the National Pork Producers Council, it could have lasting, devastating consequences for the future of farm animal welfare in the US. It would not only condemn nearly a million pigs a year to extreme confinement, but it could also inspire others in the animal agriculture industry to challenge similar state laws, or dissuade state lawmakers and food companies from moving on the matter. Some observers say the effects could be felt far beyond animal welfare, too, endangering state laws that cover renewable energy or product safety.
In the past two decades, we’ve witnessed a rapid shift away from cages, supported by voters, consumers, corporations, and policymakers of a number of political stripes. If California’s animal welfare law is eventually overturned, it will certainly be a setback for the anti-factory farming movement, but not the death knell.
National Pork Producers Council v. Ross asks just how far one state can go to change life in the other 49 states.
One of the most important provisions of the Constitution states that “Congress shall have power … To regulate commerce with foreign nations, and among the several states, and with the Indian tribes.”
This provision gives the federal government vast authority over the national economy, and over the various businesses that make up that economy. It is the reason why landmark federal laws ranging from the minimum wage, to the ban on whites-only lunch counters, to much of Obamacare, are allowed to exist.
This constitutional provision, known as the “Commerce Clause,” does not simply empower Congress to regulate interstate and international trade, and in effect, the national economy. It’s also long been understood to prevent states from enacting laws that significantly impede free trade throughout the Union.
As the Supreme Court explained in Hughes v. Oklahoma (1979), the Commerce Clause addresses “a central concern of the Framers that was an immediate reason for calling the Constitutional Convention”: the Framers’ belief that “the new Union would have to avoid the tendencies toward economic Balkanization that had plagued relations among the Colonies and later among the States under the Articles of Confederation.”
Which brings us to National Pork Producers Council v. Ross, a case the Supreme Court will hear on Tuesday. In that case the pork industry accuses California’s voters of trying to impose their own food policy preferences upon the nation as a whole, in violation of the Constitution’s safeguards against allowing one state to interfere with the nation’s economy as a whole.
In 2018, California enacted Proposition 12, a ballot initiative that imposes some of the strictest animal welfare standards in the country upon certain farmers. Of particular relevance to the Pork Producers case, Prop 12 forbids pork farmers from confining a breeding sow “with less than 24 square feet of usable floor space per pig.” And it forbids the sale of any pork in California that was produced by a farm that did not comply with this rule.
Trade organizations representing the pork industry sued, claiming that Prop 12 will impose high costs on farmers in all 50 states, and drive up pork prices nationwide. Among other things, they argue that it is “impracticable” for the industry to track in advance which cuts of pork will ultimately be sold in California, so pork farmers everywhere in the country will need to change their operations so that all of their meat complies with Prop 12.
And in order to comply, the pork industry claims, these farmers will “need to spend “$293,894,455 to $347,733,205 of additional capital in order to reconstruct their sow housing and overcome the productivity loss that Proposition 12 imposes.” Ultimately, the pork producers argue that Prop 12 will “increase farmers’ production costs by over $13 per pig, a 9.2% cost increase,” and those costs will need to be passed on to the consumer.
It’s unclear whether these dire predictions will actually become a reality, and key figures within the pork industry have, at times, seemed to contradict the more alarmist positions taken by the industry’s lawyers. Hormel Foods, for example, put out a statement saying that it has “confirmed that it faces no risk of material losses from compliance with Proposition 12.” Similarly, Tysons Food CEO Donnie King said in a 2021 interview that, while Prop 12 is “not something we were excited about,” his company can “certainly provide the raw material to service our customers in that way.”
Nevertheless, the pork producers’ legal position is that Proposition 12 violates the Constitution’s guarantee that one state will not interfere too much with the rest of the nation’s markets.
These sorts of lawsuits, which lawyers refer to as “Dormant Commerce Clause” suits, rarely prevail. But the pork producers do raise an unusually strong case under some of the Supreme Court’s caselaw, assuming that they can prove many of their dire economic predictions about Proposition 12’s impact.
At the same time, there is a very good reason why the Court has historically been reluctant to strike down state laws that interfere with the economy in other states. In a modern, integrated economy, virtually any state law will have some economic impacts across a state’s borders. If the Court hands down a ham-handed decision in Pork Producers, it could call into question hundreds or even thousands of state laws throughout the country.
What’s at stake in Pork Producers
Republican appointees have a supermajority on the current Supreme Court, so lawyers advocating for conservative policy outcomes frequently file briefs proposing sweeping, avulsing changes to federal law — before taking on a more measured and reasonable legal argument near the end of their brief.
The pork industry’s brief in Pork Producers fits this pattern. Much of its brief calls for broad new limits on a state’s ability to enact laws with “extraterritorial” effects — meaning that the law’s economic impacts are felt outside the state. Indeed, at one point, the pork producers suggest that “a State may not enact laws that have the practical effect of controlling conduct outside that State’s borders.”
If the Supreme Court were to embrace such an extreme rule, then the United States might as well give up on the project of state lawmaking altogether. Nearly any state law will have some impact on the economy in other states.
Take, for example, the ongoing debate about whether states should legalize recreational marijuana. In my home state of Virginia, people over the age of 21 may lawfully possess up to an ounce of marijuana in public. But marijuana possession is typically illegal just across the border in North Carolina.
Yet, as the Supreme Court explained in Gonzales v. Raich (2005), one state’s marijuana laws necessarily impact the national market for this drug. Increased marijuana production anywhere in the country “has a substantial effect on supply and demand in the national market for that commodity.” Similarly, by banning recreational marijuana, North Carolina lawmakers discourage hardworking Virginia cannabis farmers from growing product that can be sold in North Carolina, diminishing those farmers’ profits in the process.
Nevertheless, it is widely accepted that each state may decide whether or not to ban marijuana — or a myriad of other products they deem harmful — without running afoul of the Dormant Commerce Clause. California, for example, recently banned 24 ingredients from cosmetics and personal care products, because it believes them to harm people’s health.
Similarly, imagine that California enacted a new law which appropriates funding to hire 10,000 new public school teachers in the state. This law would also have extraterritorial effects. Among other things, because California competes with other states to hire teaching talent, this new appropriation would place upward pressure on teaching salaries throughout the country. But there’s no serious argument under existing law that hiring new teachers violates the Dormant Commerce Clause.
Again, the point is that a strict ban on state laws that have “the practical effect of controlling conduct outside that State’s borders” could potentially prohibit states from legislating altogether — especially if the phrase “practical effect” is read broadly. A state law raising its hourly minimum wage, for example, could have the practical effect of making businesses in counties across the state line raise their wages too. Name any state law, and it’s probably possible to identify some way that it shapes conduct outside of that state’s territory.
To win their case, in other words, the pork industry should have to do much more than show that Proposition 12 impacts how pork is produced in other states. If that were enough, virtually any state law would be unconstitutional.
The strongest case against Prop 12
At the same time, however, there need to be some limits on one state’s ability to pass laws that impact nonresidents of that state. In 2021, for example, Texas enacted a law that effectively forces major social media platforms like Twitter and Facebook to stop removing content they deem offensive — including content from Nazis and white supremacists, as well as many forms of targeted harassment.
While this law theoretically only applies to Texas residents and people and businesses who take certain actions in Texas, social media companies would likely find it very difficult to identify which of their users are subject to the Texas law — and therefore would have no choice but to impose Texas’s rules on everyone who uses their site.
Even setting aside the fact that this Texas law violates the First Amendment, why should Texas get to decide for the entire country what sort of content appears on Twitter? There’s something profoundly undemocratic about allowing a single state to decide this question for the other 49 states, as most Americans do not get to vote for members of the Texas state legislature.
If the pork producers are correct about the economic impacts of Proposition 12, then a similar argument could be applied to California’s law. Why should the voters of California get to pass a law that might drive up the price of bacon in Florida by nearly 10 percent?
The Supreme Court’s decision in Pike v. Bruce Church (1970) established that a state law should be struck down if it imposes a burden on commerce in other states that “is clearly excessive in relation to the putative local benefits.” And the pork producers make a reasonable argument that Prop 12 is the rare state law that runs afoul of Pike. (Notably, the Biden administration also filed a brief arguing that Pike requires the Court to strike down Prop 12.)
The argument goes something like this: The pork producers claim that 99.87 percent of the nation’s pork production occurs outside of California, but Prop 12 will nonetheless force those out-of-state producers to comply with California’s animal welfare standards. They also argue that Prop 12 does nothing to protect the health and safety of actual California residents. And they bolster this claim by pointing to the California Department of Food and Agriculture’s own conclusion that it could not “confirm, according to its usual scientific practices” that Prop 12’s sow confinement rules “reduce the risk of human food-borne illness.”
Assuming that all of this is true, that would mean that Prop 12 does very little to actually improve the lives of Californians, while simultaneously imposing tremendous costs on pork farmers in other states.
To this, California offers two responses. One is that, even if Prop 12 does not advance any public health goals, the state still has a legitimate interest in “prohibiting the in-state sale of animal products that the voters view as morally objectionable.”
But this argument is hard to square with Lawrence v. Texas (2003), the landmark civil rights decision striking down a Texas ban on “sodomy.” Among other things, Lawrence held that “the fact that the governing majority in a State has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice.”
To sustain a law, a state must offer a justification that goes beyond “we banned this practice because we think it is bad.”
California’s strongest legal argument, meanwhile, is simply that Courts should be very cautious about striking down state laws that have extraterritorial effects. As Justice Antonin Scalia warned in a 1987 opinion, the question of whether a particular state law imposes a burden on commerce that is “clearly excessive in relation to the putative local benefits” is the sort of inquiry that “is ill suited to the judicial function and should be undertaken rarely if at all.”
Judges simply are not very good at tracing out the economic impacts of a particular law. Or at predicting just how much the price of ham will go up in Wisconsin if California imposes new burdens on pork producers. And, for all the reasons explained above, it’s not clear where to draw the line between an ordinary law with extraterritorial effects — such as North Carolina’s marijuana ban — and a more extraordinary law that has too much impact on other states.
In any event, the Court’s current majority has not shown much sympathy for arguments that judges should be cautious about poking around in policy areas that they barely understand, so California may face an uphill climb in the Supreme Court if its best argument is that the judiciary should exercise restraint.
But whatever the Court decides in Pork Producers, we should hope that it shows the same trepidation about striking down laws with extraterritorial effects that Scalia articulated in the 1980s. The United States has an integrated economy, and virtually any state law will have at least some marginal effect on commerce in other states.
If this Supreme Court starts policing those laws, it will find it difficult to figure out where to stop.
An embattled Putin suffers another loss in the annexed Ukrainian territory.
A major explosion destroyed parts of the only bridge connecting Russia and Crimea, temporarily cutting off a critical supply route for Russian President Vladimir Putin’s forces and representing another potential escalation of the Ukraine war. Though the bridge has since reopened, it’s still a severe blow to Russian morale as the tide of the war continues to turn against them.
A truck driving towards Crimea exploded on the Kerch Bridge Saturday morning, igniting fuel tankers as a freight train passed by and killing three people, according to Russian authorities. Video shows that parts of the bridge had collapsed and were burning intensely.
Reported footage of the moment of the explosion. Lots of speculation circulating about the cause — from a squad of Ukrainian sappers or a missile, or a truck bomb. Whatever the case, a blow to Russia - psychologically and logistically. pic.twitter.com/mzwBCP0ygH
— Nolan Peterson (@nolanwpeterson) October 8, 2022