Surprise: SCOTUS Sides With California In Pork Suit

(3 minutes) Video from when the case was taken up by SCOTUS:

Thursday brought a surprise from the US Supreme Court in the case of Pork Producers v. California – actual case name National Pork Producers v. Ross. 

With a 6-3 conservative majority most folks probably thought that the pork producers would win this one hands down despite the fact that the suit was based on what is known as the “dormant commerce clause.” 

Bloomberg Law summed up the dormant commerce clause this was:

The National Pork Producers Council and the American Farm Bureau Federation contended the measure violates the so-called dormant commerce clause, a legal doctrine that says the US Constitution limits the power of states to regulate commerce outside their borders without congressional authorization.  

Justice Gorsuch wrote for a splintered majority that had no ideological cohesion. The majority included Gorsuch, Thomas, Sotomayor, Sagan and Barrett. No ideological cohesion among that group. Nor was there ideological cohesion with Roberts, Alito, Kavanaugh and Jackson. 

Here is the crux of the Gorsuch opinion as reported by   

Gorsuch writes that “Companies that choose to sell products in various States must normally comply with the laws of those various States. Assuredly, under this Court’s dormant Commerce Clause decisions, no State may use its laws to discriminate purposefully against out-of-state economic interests. But the pork producers do not suggest that California’s law offends this principle.”

Instead, Gorsuch writes, “they invite us to fashion two new and more aggressive constitutional restrictions on the ability of States to regulate goods sold within their borders. We decline that invitation. While the Constitution addresses many weighty issues, the type of pork chops California merchants may sell is not on that list.”

A comment at scotusblog notes that “Pork Producers opinion is looking like a MESS.” 

This case also attracted unexpected supporters again not based on ideological stances. Once more from Bloomberg:

The industry argued that a ruling for California would pit states against one another, letting them impose their own moral and ideological demands on companies elsewhere before products could be sold.

The Biden administration took the pork producers’ side. The pharmaceutical industry also backed the pork lobby, saying the case could affect litigation over state laws that seek to regulate the nationwide list prices of drugs.

California said the dormant commerce clause guards against economic protectionism, not against neutral restrictions on in-state sales. The state accused the industry of overstating the impact of the law, arguing that pork producers already segregate supply chains to sell products labeled as “antibiotic-free” and “crate-free.”

Will this decision have effects that flop over into other industries? Will the Pork Producers come at the California law from another angle? Stay tuned. I have a feeling we have not heard the last of it.

And just in case you did not know it, Iowa is by far the top pork producing state in the country with approximately 33 million hogs or about 1/3 of the national production. I would daresay that much of that is done in CAFOs (confined animal feeding operations) which appear to be against the California law that state a pregnant sow must have at least 24 square feet of space.

About Dave Bradley

retired in West Liberty
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2 Responses to Surprise: SCOTUS Sides With California In Pork Suit

  1. Edward Fallon says:

    Good analysis, Dave.


  2. A.D. says:

    It seems to be hard to find numbers, which is interesting in itself. But I found a DM REGISTER 2022 story that said “most of the 5o million hogs marketed in Iowa every year” are raised in CAFOs. That same story said that up to 500 new CAFOs are built each year, that Iowa already has about 10,000 CAFOs, and that according to one survey, 63% of Iowans want a ban on new CAFO construction. Much good may it do us.

    It is obvious that CAFOs are contributing enormously to our water problems. But as the case of Chris Jones of U of I illustrates all too well, Iowans who dare to point that out can be putting their careers at real risk. I’ve heard things from ag conservation people in private that are rarely said in public.


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