On Monday March 28, 2022, the Supreme Court of the United States (SCOTUS) agreed to decide whether pork producers can sue over California’s Proposition 12, which essentially regulates livestock practices nationwide. California voters approved Prop 12 in 2018. The law bans the sale of pork in California unless the breeding pig was housed with a minimum space allowance which few farms can satisfy.

As pointed out by briefing filed by the American Farm Bureau Federation (AFBF), Californians account for 13% of the nation’s pork consumption, but raise hardly any pigs. Thus, the overwhelming burden of Prop 12 falls on out-of-state farmers. Because a single pig can be processed into cuts sold nationwide in response to consumer trends and demand, the costs of complying with Prop 12 will be passed on to farmers and consumers everywhere, in countless transactions having nothing to do with California. The National Pork Producers and AFBF filed a petition for certiorari to the SCOTUS, arguing that Prop 12 violates the U.S. Constitution’s “dormant Commerce Clause,” because the California law regulates pork production outside the state and imposes an excessive burden on interstate commerce. California argued that the state was entitled to regulate sales there, and that the law is indifferent to the ways products sold in other states are produced. The Humane Society of the United States (HSUS) filed a brief urging the SCOTUS to uphold the law, describing it as an “animal cruelty” issue.

The lawsuit started in the District Court for the Southern District of California, which dismissed the petitioners’ lawsuit, holding they failed to state a valid claim. Petitioners appealed, and the Ninth Circuit affirmed the dismissal although it acknowledged that petitioners plausibly alleged that Prop 12 has “dramatic upstream effects,” requires “pervasive changes to the pork production industry nationwide,” and imposes costs that “mostly fall on non-California transactions.” Nevertheless, the Ninth Circuit affirmed that petitioners failed to plead a dormant Commerce Clause violation (leaving Prop 12 in place). Now, the highest court in the country will consider that question.

While the dormant Commerce Clause brings back bar exam nightmares for some lawyers, it is a fairly straightforward concept. In short, the clause prohibits states from passing legislation that discriminates against or excessively burdens interstate commerce. It prevents protectionist state policies that favor state citizens or businesses at the expense of non-citizens conducting business within that state. The clause is dormant because it is not outright stated, but rather implied in the written commerce clause of the Constitution. The (regular) Commerce Clause is found in Article 1, Section 8, Clause 3 of the Constitution. Section 8 enumerates the powers of Congress and Clause 3 includes the right for Congress to regulate commerce with foreign countries, among the states, and with Indian tribes.

Now the SCOTUS will decide whether the Ninth Circuit was right when it held that “[w]hile the dormant Commerce Clause is not yet a dead letter, it is moving in that direction.” In other words, can California tell the nation’s farmers how to raise livestock? Or is that a question best left to the expertise of the farmers and local control within each state? Stay tuned.