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  • The Supreme Court on Tuesday heard a battle between pork producers and California.
  • A California law requires producers to raise pigs with enough space to roam freely in order to sell pork in the state’s market.

A California law requires producers wishing to sell pork in the Golden State to raise their pigs in large-enough pens so they may roam freely. Pork producers nationwide have balked at the standard, claiming it’s costly to meet, disruptive to the industry, and unconstitutional. Enter the Supreme Court.

The nine justices on Tuesday heard both sides of the dispute in National Pork Producers Council v. Ross, a case that could have far-reaching implications on the ability of states to regulate business within their borders, the welfare of millions of pigs, and potentially the price of bacon.

The National Pork Producers Council, an industry trade organization, and the American Farm Bureau Federation, a powerful agriculture trade group, have challenged California’s Proposition 12, a ballot measure that requires farmers to provide breeding pigs, or sows, with at least 24 square feet of space. Championed by animal-welfare advocates, the law prohibits the sale of any pork products in California in which the pigs had been “confined in a cruel manner.”

Most sows across the country are kept in smaller spaces than 24 square feet, the groups argued. To comply with California’s rule, it would cost producers around $293 million to $347 million, and consequently result in higher pork prices at the grocery store for consumers, the groups wrote in their brief to the court. Beyond that, these economic burdens will mostly fall on producers outside of California as the state imports 99% of its pork, the groups added.

Ultimately, the groups argued the California law impedes interstate commerce, in violation of a legal doctrine in the Constitution called the dormant commerce clause. After lower federal courts dismissed their lawsuits, they brought their fight to the Supreme Court.

If California’s law stands, it means the state is forcing out-of-state farmers to adopt new practices based on its philosophical values, attorney Timothy Bishop of Mayor Brown told the Supreme Court on Tuesday on behalf of the pork producers.

Both the conservative and liberal justices appeared skeptical of the arguments, pointing out that California’s law only applies to products sold within the state.

“As I read California’s law, it is about products being sold in California,” Justice Clarence Thomas said, “It’s not reaching out and regulating something across state lines or regulating prices.”

Justice Sonia Sotomayor noted that “no one’s forcing” Iowa farmers, for example, to sell to California, instead “they can sell to any other state that they prefer to sell to.”

California defended the law on Tuesday by arguing it has an interest in banning the sale of products it deems immoral. If there is any economic cost, the state’s solicitor general argued, then it would fall on California consumers.

The justices also grilled California, raising a slew of hypothetical state efforts that regulate business based on preferences. Justice Brett Kavanaugh wondered if a state can regulate sales on whether a company employs undocumented immigrants, or whether employees are paid a minimum wage.

Justice Elena Kagan speculated about the consequences of allowing states to pass laws that could deepen divisions between them.

“We live in a divided country. The balkanization that the framers were concerned about is surely present today,” Kagan said, “Do we want to live in a world where we’re constantly at each other’s throats, and Texas is at war with California and California is at war with Texas?”

California voters approved the law in 2018, but it has not taken effect, given the ongoing legal battle. A ruling in the case is expected by June.



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