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Sen Vol 20#24-SCOTUS on California’s Prop 12 and the Pork Industry

It Was Not a Simple 5-4 Decision


Source: Steve Dittmer | AFF Sentinel


Originally sent to subscribers 05/18/23

There is a long list of legal arguments that the Supreme Court stood upon in order to arrive at their quite disturbing decision (58 pages) on California’s Proposition 12 but the bottom line, long-term is this: whatever conferring of human sensibilities to animals that activists and voters can impose through law can stand, to dictate to food producers.

The Court seemed to make no distinction between food safety regulations, which are national in scope, relatively universal in nature and a matter of human health and safety and animal husbandry, livestock production management. The existing animal cruelty laws, passed by people with no familiarity with livestock, their wants, habits or requirements as to what constitutes animal “cruelty,” are useful, correct and proper as to basic needs, like feed, water and shelter. That’s one level of reasonable law and restriction.

But an activist group’s definition of how much cubic space an animal prefers, much less requires, is a whole other level of dictation and control by an outside “force” with no skin in the game. The Court has held, in effect, that the emotional conclusion of people who do not own or care for animals, should be allowed to set in law their opinions of animal comfort, if they can get the votes.


If the Supreme Court is going to allow consumers, through the retail marketplace, to express their desires as to how animals are raised, willing to pay a higher price to do so, that’s a free market, free enterprise system. If the most extreme examples of dictation become mandatory, that is something else entirely. That is akin to a law requiring that only tiny cars capable of two passengers weighing no more than 155 lbs. each and no more than 5’11” tall, only powered by batteries, may be sold in California. Would the Court affirm those restrictions set by state law?


It should be noted that this was a close, 5-4 decision, and not all the justices agree with the resulting outcome. We’re not legal scholars but it is possible in our reading that another case, argued another way by another set of lawyers could win another round at the High Court.


The majority opinion especially notes that Congressional legislation is not extent and such a law would change the whole situation. The justices comment several places that producers have tried to get national legislation on this issue, but we are not familiar with such efforts.

In total, the Court’s majority was not concerned about the costs to producers of compliance. They heard but were not persuaded.


In some ways, this result, derived from legal precedence in a clause in the Constitution that has been litigated many times over 200+ years, is a triumph of state’s rights, the will of a state’s voters holding precedence.

This was a very convoluted case, with the opinion featuring many concurrences and dissents among the sides in the case. It was a 5-4 decision, with somewhat unexpected alliances in the decision. But the “near miss” feeling one gets in reading the milling currents in the opinion, reflects a more complicated discussion than a simple 5-4 vote.

There was a heavy reliance on legal precedent, but even that provided no near examples of a case with the unquantifiable nuances of how animals “feel” in different housing requirements. The case histories involve gasoline sales, mudflaps, financial issues, cantaloupe shipping and other issues.


Of course, some of the representations from HSUS were not helpful, like alleging “tiny filthy cages increased risk of food poisoning.”


The following bullet points are some of the key considerations upon which the opinion rests:


The majority opinion, written by Justice Gorsuch

The bullet point paragraphs are lightly edited verbiage from the Opinion itself but edited for length.

  • A state can prohibit the sales of items it holds “are prejudicial to” the interests of its citizens

  • The dormant section of the Commerce Clause prohibits the enforcement of state laws “driven by . . . ‘economic protectionism—that is, regulatory measures designed to benefit in-state economic interests by burdening out-of-state competitors.’”

The “petitioners, ” NPPC and AFBF, did not argue that protectionist intent or causing disadvantage to out-of-state interests were involved here. We’re not sure why but the point is complicated by the fact there are almost no California pork producers that would benefit from this law.

  • Since the founding, States have enacted an “immense mass” of “[i]nspection laws, quarantine laws, [and] health laws of every description” that have a “considerable” influence on commerce outside their borders.

  • California’s interest in eliminating allegedly inhumane products from its markets cannot be weighed on a scale opposite dollars and cents—

  • “Proposition 12’s requirements were driven by [a] conception of what qualifies as ‛cruel’ animal housing” and by the State’s concern for the “‘health and safety of California consumers’”. How is a court supposed to compare or weigh economic costs (to some) against noneconomic benefits (to others)? The competing goods before us are insusceptible to resolution by reference to any juridical principle.

  • The petitioners “acknowledge that States may sometimes ban the in-state sale of products they deem unethical or immoral without regard to where those products are made (for example, goods manufactured with child labor). And, at least arguably, Proposition 12 works in just this way—banning from the State all whole pork products derived from practices its voters consider “cruel.”

  • How should [the Court] settle that dispute? The competing goods are incommensurable. In a functioning democracy, policy choices like these usually belong to the people and their elected representatives. They are entitled to weigh the relevant “political and economic” costs and benefits for themselves… Producers are free to petition Congress to intervene. But so far, Congress has declined the producers’ sustained entreaties for new legislation.

  • No one thinks that costs ultimately borne by in-state consumers thanks to a law they adopted counts as a cognizable harm under our dormant Commerce Clause precedents, holding that the dormant Commerce Clause is not offended by higher prices “likely to fall upon the very people who voted for the [challenged] la[w].”We [the Court] note that a number of smaller out-of-state pork producers have filed an amicus brief in this Court hailing the “opportunities” Proposition 12 affords them to compete with vertically integrated firms with “ ‘concentrated market power’ ” that are wedded to their existing processing practices.

  • Petitioners would have us prevent a State from regulating the sale of an ordinary consumer good within its own borders on nondiscriminatory terms…


Next time: concurring and dissenting from other justices.



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