For decades, Supreme Court justices on the right have framed themselves as committed to “states’ rights.” True, they might appear to be, and even act like, extremist activists, driven to serve the Republican Party and forge a Christo-nationalist state. They are, however, in fact simply federalists to the bone — which we know for sure because of their insistence on it.
As such, in a significant case on this term’s docket, I’m sure we can expect these right-wing justices to duly rule in favor of the state of California and its right to pass animal welfare laws, allowing the state to regulate the pork sold within its sovereign state borders.
Well, maybe we can’t really expect the ruling for “states’ rights.” We must remember, after all, that this is a case about a progressive law, passed in a blue state, that challenges the unbridled power and private interests of a major industry.
Ruling in favor of industry would set yet another grim precedent, potentially curtailing the ability of states to enforce progressive industry regulations.
On Tuesday, oral arguments will begin in National Pork Producers Council v. Ross, a case in which the pork industry is challenging the constitutionality of a California law regulating the worst cruelties of mass meat and egg production. The pork producers are arguing that California’s law ends up forcing them to change their procedures outside California’s borders at significant cost.
If the justices rule on the side of the pork producers, it will be only the latest case to expose the illusion of so-called states’ rights that conservative legal forces have spent 200 years pushing on the public.
There would also be widespread implications: Ruling in favor of industry would set yet another grim precedent, potentially curtailing the ability of states to enforce progressive industry regulations and protections. Everything from state laws on workers’ rights to environmental standards, to further animal welfare issues could be challenged.
Meanwhile, there could be another layer of irony: With the court’s proven selective federalism, we can be sure that any such precedent would be no barrier to conservative states enacting laws with economic consequences far beyond their state lines in future.
The law in question at the Supreme Court this week is California’s Prop 12, passed through a resounding 2018 ballot victory. The law bans the sale in California of meat and eggs from animals raised in extreme and brutal confinement, including in gestation crates where pregnant pigs are held, barely able to move, for most of their lives.
Such confinement has been condemned by all major animal welfare and veterinary organizations, and has been deemed a “profound danger to food and public health,” given the rife spread of disease, according to a brief written by the American Public Health Association and the Infectious Diseases Society of America, among others, for the case.
The pork producers contend that the law creates unconstitutional constraint on their business, as farmers in other states must change their practices to abide by Prop 12’s standards if they hope to sell pork in the nation’s most populous state.
The plaintiffs argue that the law violates the “dormant commerce clause” in the Constitution, which bars states from placing an “undue burden” on interstate commerce. They are arguing that, though the federal government has not actively weighed in on these regulations, the rules remain an issue of interstate commerce, for which federal oversight is constitutionally enshrined.
Since most of the pork consumed in California is indeed produced out of state, and that the state is a market too big for major producers to forego, there’s little doubt that the Californian regulations would indeed affect interstate practices. The industry plaintiffs are suggesting that it would be an “undue burden” to move away from torturing animals in factory farms.
The pork producers in the case say that upholding Prop 12 would mean that California voters are able to assert their policy choices onto the entire country’s economic practices — which the commerce clause is intended to prevent.
Given the nature of contemporary U.S. supply chains, however, most every in-state regulation of an industry will affect interstate commerce. The burden on commerce must be shown to be “excessive” for the law to be considered unconstitutional.
According to the plaintiffs, abiding by Prop 12 will increase farmers’ production costs by over $13 per pig, a 9.2 percent cost increase, raising the price of pork products considerably. At present, the prices of meat and animal products are kept low only by virtue of mass, high speed production that keeps animals in abhorrent conditions, while workers in dangerous slaughterhouse jobs are horrifically underpaid. This is not an industry whose status quo should be defended.
Many of the industry giants are not aggressively siding with the National Pork Producers Council.
And many of the industry giants are not aggressively siding with the National Pork Producers Council, an association of pork interests. Other major pork producers have stated that the material costs of abiding by Prop 12 would be nowhere near so high. In a statement, Homel Foods wrote that it “faces no risk of material losses from compliance with Proposition 12,” beyond adding manageable “complexity” to their supply chain. Other industry giants like Tyson Foods, Smithfield Foods, Seaboard, and Clemens Food Group have said they are able to comply with the law.
It’s not a foregone conclusion that a majority of justices will side with the National Pork Producers Council. Both conservative justices Clarence Thomas and Samuel Alito have, from an originalist stance, previously criticized the dormant commerce clause. And, of course, all six of the court’s right-wing justices have ruled in favor of state laws that have significant economic effects on the lives of those outside those states — such is the nature of living in an entangled national body politic. Just ask the abortion clinics now overwhelmed by out-of-state travel. Yet we should never underestimate the conservative majority’s pro-business bent, and its unabashed desire to quash any and all liberation struggles — be they for human or nonhuman lives.
If the pork producers succeed in overthrowing Prop 12, many millions of animals will continue to live and die in the most appalling suffering. The message will be sent too that when big business wants to challenge democratically passed state laws, they have several right-wing Supreme Court justices — those storied defenders of states’ rights — on their side.
This content originally appeared on The Intercept and was authored by Natasha Lennard.