States’ rights in the Supreme Court? Not if it affects big business

Pigs arrive at Farmer John’s slaughterhouse in Vernon, California on September 27, 2018.

Photo: David McNew/Getty Images

For decades, Right-wing Supreme Court justices portray themselves as committed to “states’ rights.” True, they may look and even act like extremist activists forced to serve the Republican Party and establish a Christian nationalist state. However, they are really just federalists to the bone – which we know for sure because of their insistence on it.

As such, in a landmark case this term, I’m sure we can expect these right-wing judges to duly rule in favor of the state of California and its right to enact animal welfare laws, allowing the state to regulate the sale of pork within the borders of the sovereign state.

Well, maybe we really can’t wait for the “states’ rights” solution. Ultimately, we must remember that this is a case of a progressive law passed in a blue state challenging the unbridled power and vested interests of big industry.

Ruling in favor of the industry would set another dark precedent, potentially limiting states’ ability to enforce progressive industry regulations.

On Tuesday, oral arguments will begin in National Pork Producers Council v. Ross, a case in which the pork industry challenges the constitutionality of a California law regulating the worst cruelties in the mass production of meat and eggs. Pork producers argue that the California law ultimately forces them to change their procedures outside of California’s borders at significant expense.

If the justices side with the pork producers, it will be just another case of exposing the illusion of so-called states’ rights that conservative legal forces have spent 200 years foisting on the public.

There would also be widespread consequences: ruling in favor of the industry would set another dark precedent, potentially limiting states’ ability to enforce progressive industry regulations and protections. Everything from state workers’ rights laws to environmental standards to other animal welfare issues can be challenged.

Meanwhile, there may be another layer of irony: With the court’s proven selective federalism, we can be sure that any such precedent will not prevent conservative states from passing laws with economic consequences far beyond their state borders in the future.

The law in At issue in the Supreme Court this week is California’s Prop 12, which passed with a landslide victory on the 2018 ballot. The law prohibits the sale in California of meat and eggs from animals raised in extreme and brutal confinement conditions, including gestation crates where pregnant pigs are kept barely able to move for most of their lives.

Such closures were condemned by all major animal welfare and veterinary organizations and were considered a “profound danger to food and public health” given the widespread spread of the disease, according to a brief written by the American Public Health Association and the Infectious Diseases Society of America, among others, for the case.

Pork producers say the law creates unconstitutional restrictions on their businesses because farmers in other states must change their practices to comply with Prop 12 standards if they hope to sell pork in the nation’s most populous state.

The plaintiffs argued that the law violated the Constitution’s “passive commerce clause,” which prohibits states from placing an “undue burden” on interstate commerce. They argue that although the federal government has not actively addressed these regulations, the rules remain a matter of interstate commerce over which federal oversight is constitutionally entrenched.

Since most of the pork consumed in California is indeed produced outside the state, and that the state is too large a market for large producers to forego, there is little doubt that the California regulations will indeed affect interstate practices. Industry plaintiffs suggest it would be an “undue burden” to waive the torture of animals on factory farms.

Pork producers in this case, say that upholding Proposition 12 would mean that California voters could impose their policy choices on the economic practices of the entire country — which the Commerce Clause is meant to prevent.

Given the nature of modern US supply chains, however, almost any government regulation of an industry will affect interstate commerce. The burden on commerce must be proven to be “excessive” for the law to be considered unconstitutional.

According to the plaintiffs, compliance with Rule 12 would increase farmers’ production costs by over $13 per pig, a 9.2 percent increase in costs, significantly raising the price of pork products. Currently, the prices of meat and animal products are kept low only by mass, high-speed production that keeps animals in abhorrent conditions while workers in dangerous slaughterhouses are woefully underpaid. This is not an industry whose status quo needs to be defended.

Many of the industry giants are not aggressively siding with the National Pork Producers Council.

And many of the industry giants are not aggressively siding with the National Pork Producers Council, an association of pork interests. Other major pork producers said the material costs of complying with Proposition 12 would not be as high. In a statement, Hormel Foods wrote that it “faces no risk of material loss from compliance with Proposition 12,” other than adding manageable “complexity” to its supply chain. Other industry giants such as Tyson Foods, Smithfield Foods, Seaboard and Clemens Food Group have said they are able to comply with the law.

It is not a foregone conclusion that a majority of the judges will side with the National Pork Producers Council. Both conservative Justices Clarence Thomas and Samuel Alito, from the original bench, have previously criticized the Passive Commerce Clause. And, of course, all six of the court’s right-leaning justices ruled in favor of state laws that have a significant economic impact on the lives of those outside those states — such is the nature of life in tangled national politics. Just ask the abortion clinics now overwhelmed by out-of-state travel. Yet we should never underestimate the pro-business bent of the conservative majority and its shameless desire to suppress all struggles for liberation – whether for human or non-human life.

If pork producers succeed in rejecting Proposition 12, many millions of animals will continue to live and die in the most horrific suffering. It would also send the message that when big business wants to challenge democratically enacted state laws, they have a few right-wing Supreme Court justices—those legendary defenders of states’ rights—on their side.

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