I discussed it in a post a few days ago Natl Pork Producers Council v. Ross The case is now before the Supreme Court, where NPPC is challenging, on the basis of the “dormant commerce clause,” a California law that makes it illegal to sell pork in CA if the seller knows (or should know) that the meat comes from a breed of pig that is “a Cruelly” was limited (as defined in the provision).
The NPPC has two main arguments, the most prominent being that the law represents inappropriate “extraordinary” legislation, even though it forces out-of-state pork producers to change their business practices. As I discussed in a previous post, I would be surprised if the courts adopted this strategy.
Their second argument, which I admit leaves me scratching my head, is that the Act imposes, in the NPPC’s words, “an excessive burden on interstate commerce without advancing any valid local interestsCalifornia’s “philosophical choices about behavior occur almost entirely outside of California,” and its ““The desire to prevent animal cruelty that occurs entirely outside the borders of the state of California,” cannot justify the burden placed on pork producers nationwide.
As many commenters have pointed out, I haven’t done a particularly good job of explaining why I find this claim misleading. Let me do it again.
I think it’s their use of the word “valid” that throws me off.
Let’s start with some propositions that everyone agrees with:
- Prevention of animal cruelty California A perfectly “legitimate” interest under California’s “police power.” California could pursue this interest through legislation – banning dog-fighting, bear-baiting, or certain types of animal captivity within the state.
- Animal cruelty laws are not – and need not be – justified as “health and safety” measures The health and safety of Californians is not affected by the existence (or not) of organized dog-fighting rings within the state. These laws, for lack of a better descriptor, rest on “public morality”; As the Supreme Court said many years ago, the police power of a state “includes within its borders all laws relating to persons and property which may promote the public health, public morals, and the general prosperity and safety of its inhabitants.” W. Union Tel. Co. v. James, 162 US 650, 653 (1896). Californians, speaking through their legislators, can declare that treating animals in certain ways is morally objectionable, and that they do not want to live in a society that tolerates such treatment.
- California can, of course, enact “health and safety” regulations regarding animals, or animal products, sold in California – say, banning products that are improperly labeled, unsafe, or considered unhealthy.
- Such general health and safety regulations often have “incidental” effects on out-of-state businesses; Businesses that choose to sell their products in California must comply with California law for products shipped to California, and this may require them to change their production or marketing methods.
- This burden on out-of-state business will not invalidate the regulation under the dormant commerce clause unless it is “manifestly excessive” relative to the local benefit. So if California’s objective is to eliminate trichinosis, a common pork parasite, the burden it might impose on out-of-state pork producers would be weighed against the local benefits (reduction of disease) that it could control on pork coming into the state. in California to determine whether the statute meets the requirements of the latent commerce clause.
As I say, none of this is controversial or controversial.
Here, though, is where things get complicated: The NPPC’s position is that “public morality” laws should be treated differently for purposes of analysis under the latent commerce clause from laws based on “health and safety” reasoning. Local facilities for health and safety controls count, for latent trade clause balancing test purposes; “Public morals” laws do not have local benefits. Public moral laws, they insist, yield No local facilities – As a matter of law – latent trade clauses will be weighed in the balance; They are like this As The amount they charge is illegal any All burdens on out-of-state businesses.
From the NPCC brief (emphasis added):
“Simply put, state laws that project to the outside world But has nothing to do with internal public security or public order outside the police powers of a state or locality and thus in violation of the Commerce Clause. . . .
While protecting the welfare of domestic animals is a legitimate exercise of police power, the law does not attempt to address the perceived harm to animals in other states. California’s interest in preventing perceived animal cruelty is not a valid reason to regulate the production of products outside its borders. . . .
Under this court case, there is a statute with an extraterritorial effect on commerce No local facilities Exceeds police powers and violates the Commerce Clause. A textbook example of Proposition 12 [such a law]. . . .
A state law that governs non-commercial conduct is unconstitutional if construed as a police-power regulation. No reasonable relationship For effecting certain purposes within the power of the State. . . .
[California] does not call Any legitimate interest To avoid state losses.
I now understand my own confusion better than ever. The State of California brief calls NPCC’s argument “substantial,” and I think they’re right. Where does this two-tier system for latent trade analysis come from? Why is it that Californians’ apparent interest in seeing their local grocers and other retailers contributing to a market they deem unethical—an interest that is within their “police power”—does not count for purposes of the dormant Commerce Clause?
Perhaps there is an answer to these questions, but they don’t pop out at me (and they aren’t clearly spelled out in NPCC’s brief). [Please note that I’m not saying that the NPCC’s theory here is wrong – just that I don’t quite get where it comes from, or understand what its implications might be]
And lest you think all of this is for naught, consider the current debates about state abortion restrictions. Don’t they, like animal cruelty laws, rely on a “public morality” argument? Several states (see here) have enacted or are considering legislation prohibiting out-of-state suppliers of abortion-inducing drugs from shipping their products into the state. If NPCC’s position prevails here, is that not the law As Illegal under the dormant commerce clause?