Breaking Down the Upcoming Case Against Prop 12 Before the U.S. Supreme Court

The United States Supreme Court, in a case captioned National Pork Producers Council v. Ross, is poised to weigh in on the constitutionality of Proposition 12, a voter-backed California state law that bans the in-state sale of pork from cruelly confined pigs, regardless of where the animals are raised.

The measure, which also provides more space for veal calves and egg-laying hens, has taken effect in stages, with all provisions set to go into effect as of January 2022.  Voters approved the measure in November 2018 with nearly 63% of voters — more than 7.5 million Californians, and the majority of both Republican and Democrat voters — choosing the humane treatment of animals and safer food in the state.

The law is being implemented in California to the chagrin of the pork industry, which sees it as a threat to their bottom line: choosing profits by cutting corners, even if that means treating animals badly by forcing them to live in sunless, cramped confinement while being pumped full of antibiotics to stave off the disease that festers in their high-stress, overcrowded conditions.

Now the industry, led by four major companies that control 70% of the very profitable pork production in the United States, has brought its case to the U.S. Supreme Court after years of repeated defeats in the lower courts. It’s hoping the nine justices will give them what every other federal judge who has heard its case has denied: permission to continue their inhumane and unhealthy hog-raising practices and to sell the product in California, despite the overwhelming will of California’s voters acting through a constitutional process of direct lawmaking.

The pork industry’s theory is that a legal doctrine called the Dormant Commerce Clause (DCC) does not allow states to enact laws that have a disproportionate economic impact on other states. Past Supreme Court cases have articulated a balancing test — the Pike test — by which judges attempt to weigh the “putative local benefits” of the state law in question versus the potential financial harms visited on other states when such laws are enacted. It’s a balancing act, and a legal principle, which several prominent conservative judges have struggled with and, in some cases, outright rejected.

The late Justice Antonin Scalia, considered by many to be the modern standard bearer of judicial conservativism, once deemed the doctrine to be a “judicial fraud,” stating that comparing a state’s interest to another state’s economic harm is like “judging whether a particular line is longer than a particular rock is heavy.”

Clarence Thomas, who was often ideologically aligned with Scalia, has expressed similar disdain for the DCC, stating that it “has no basis in the text of the Constitution, makes little sense” and is “virtually unworkable.” And Samuel Alito, an heir to Scalia’s textualist and originalist view of the Constitution, has derided the Court’s judicial activism, criticizing other members of the Court for creating “legislation” instead of applying narrow judicial interpretation. He was recently the author of a rallying cry to return matters not explicitly found within the Constitution to states’ voters to decide.

But intellectual consistency does not always drive decision-making, and this case is considered by a great number of Supreme Court watchers, to use a sports reference, to be a jump ball.

The many legitimate animal welfare and public and environmental health claims that grounded the landslide vote in favor of Prop 12 are undeniable. The need to overuse antibiotics that comes with extreme confinement of farm animals, including cramming sows in gestation crates, contributes to an antibiotic-resistant epidemic that takes the lives of more than 35,000 Americans each year, according to CDC’s 2019 Antibiotic Resistance Threats Report.

But as legal scholars note, it’s not the court’s place to decide what’s important to California’s voters.

Neil Gorsuch, who has also grappled with the very underpinnings of the DCC, questions whether judges should have a role in determining the rights of states to enact laws in areas where Congress has not chosen to regulate, like on farm-animal welfare issues. In a recent case before the Supreme Court that struck down a Tennessee law related to alcohol sales because of its out-of-state impact, Gorsuch authored a dissent stating, “[t]he regulation of alcohol wasn’t left to the imagination of a committee of nine sitting in Washington, but to the judgment of the people themselves and their local elected representatives.”

Neither was the sale of pork, where the people of California and their local elected officials have clearly spoken.


For some of the justices, the Prop 12 case will undoubtedly hinge on the exaggerated doomsday economic forecast that the $26-billion-a-year pork industry has foretold if the law were properly implemented in California. In a brief filed with the Court, the pork industry claims—without any concise economic support or independent expert backing—that the “burdens on interstate commerce clearly exceed any putative local benefits of Proposition 12.”

Some organizations and business interests on the right have jumped on the purported economic impact of Prop 12 and joined the attack on states’ rights. The Heritage Foundation, which fashions itself as thought leaders of conservativism, responded to Prop 12 with disconnected hysteria, claiming that “the law generates drastic shockwaves through the pork production and sales markets that force pig farmers across America to comply with California’s requirements.”

Fortunately, agricultural and resource economists have done the economic analysis that the pork industry and the Heritage Foundation have deliberately sidestepped. In their own brief filed with the Court, these experts cite actual research and data — some of which was funded by the pork industry itself — showing “those producers that choose not to supply the California market will suffer at most only marginal economic harm” and that the “quantity of live hogs produced in North America will not significantly change” (emphasis added).

The economists’ findings are borne out by recent reports from pork suppliers across the country, who are already preparing and, in many cases, already able to meet the demands of Prop 12-complaint pork for California consumers.

Elizabeth Cox, a veterinarian with the Animal Care Program at the California Department of Food and Agriculture, spent the past year with a team visiting an array of hog producers across the country, including some who contract with Hormel, Smithfield, JBS and Premium Iowa Pork. The Animal Care Program team visited farms with crate-free and open-pen housing systems. Producers are excited about the market opportunities created by Prop 12, Cox explains in a July 2022 report: “Several of the farmers and processors who I visited told me that tracing pigs throughout the pig production cycle is relatively straightforward because farmers and processors have already been tracing product from sow farm to end-product for years in order to market and sell premium pork products (such as “crate-free” pork).”

This means that these same mechanisms are easily implemented for Prop 12’s needs, along with more than 60 major food retailers that have publicly condemned gestation crates as inhumane.


It turns out that the gargantuan Prop 12 economic “shockwaves” are more like ripples. Producers have been paying attention to political and corporate decision-making that long preceded Prop 12 and recognize what consumers want: animals built to move should be allowed to move.

Matthew Scully, a longtime conservative voice and former senior speechwriter for President George W. Bush, expertly wrote a moral, political, and legal critique of the pork industry’s argument in this month’s National Review. Scully astutely notes that one-fifth of states, both conservative and liberal, have gestation crate bans and reminded readers of the value of the free market and the importance of states’ rights: “[w]hen a multibillion-dollar industry has so offended the moral standards of so many citizens that they take corrective action at the ballot box, why is that a violation of constitutional order, instead of just the industry’s own self-imposed commercial disadvantage?”

A  June 29 article in The New Republic points out the pork industry is making a “pernicious” argument that “democratically expressed values are not a viable basis” for a state law when that law might hurt companies’ profits in other states. With its legal challenge, the pork industry has expressed contempt for “philosophical preferences” that reflect the values of the citizens and the enactment of state laws to codify those strongly held beliefs, supporting a system that instead, allows massive international corporations to tell individual American states what their residents’ morals and ethics should be.

If the six conservatives on the bench hold true to the states’ rights and judicial “restraint” rhetoric that’s long been a core principle for them, they would unanimously vote to uphold Proposition 12. The remaining liberal justices on the bench should easily see what this case is really about: a handful of politically powerful pork producers—with the leading U.S. producer based in China and the second one based in Brazil—who simply don’t like the choice that the voters of California have made when it comes to the humane treatment of animals raised for food and are looking to subvert the democratic process for their own petty financial gain. This is also the choice of McDonald’s, Costco, Safeway, and the biggest names in food retail, all of which have made public statements that gestation crates have to go.

If intellectual integrity and honest factfinding prevail, this will be a 9-0 decision affirming California’s right to establish common-sense food safety and humane treatment standards, fairly applying to in-state or out-of-state producers who choose to sell into that market.

But the Court granted cert in this case, despite the refutation of the industry’s position by 10 lower courts prior, for a reason. That suggests that a substantial number of justices have decided that the claims coming from the pork industry bear examining. Let’s hope our justices will sort through the hyperbole and fearmongering from the highly consolidated, often foreign-owned agribusiness operators who somehow think it’s normal to immobilize an animal in a cage indefinitely. At its most fundamental level, those in control of the industry want consumers to eat what they are told to eat and to silence public opinion on the treatment of animals and the pathogens that drive food recalls and outbreaks; they want to subvert the decisive will of the voters and are hoping our highest court will abide.

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