An attempt to restore judicial restraint

Are the sovereign rights of the State of California defined and circumscribed by the current structure of the pork industry?

We are governed too much by judges. Too much public policy is decided through litigation rather than legislation. The judiciary has arrogated a policymaking role far in excess of what the founders intended.

The left pioneered achieving policy objectives through the courts rather than through elections and lawmaking. Of late, the right has taken up the tactic with equal vigor and abandon.

In a recent case, National Pork Producers v. Ross, Justice Neil Gorsuch sought to restore a bit of judicial restraint. Even though he wrote the controlling opinion, he came up short. The issue fractured the court, but not along the usual ideological lines.

The case challenged a ballot proposition passed by California voters regulating the size of cages in which pigs on their way to becoming bacon and ham can be contained. Other states have passed similar laws, including Arizona. A 2006 ballot proposition saying that the cages had to provide enough space for the pigs to turn around and lie down passed with 62% of the vote.

The California proposition went further by saying that any pork sold in the state had to come from pigs harbored in conforming cages. The pork producers sued, claiming that the attempt to regulate the practices of out-of-state producers violated the Commerce Clause of the U.S. Constitution.

The Constitution clearly gives Congress the right “(t)o regulate Commerce … among the several States ….” No one disputes that Congress could pass a law regulating confinement practices for pigs and preempt state laws covering the same territory, such as those of California and Arizona. Indeed, the pork producers have lobbied Congress to do precisely that, but so far without success.

In addition to this express right to regulate and preempt, over the years the court has read into the spare constitutional language a thing justices have inartfully called a “dormant Commerce Clause”. According to the dormant Commerce Clause, even if Congress hasn’t acted, states can’t engage in protectionism, favoring local businesses over out-of-state competitors.

Now, I really like the policy. But it’s hard to deduce that limitation, and no other, from the actual constitutional language granting Congress the authority to act when Congress has not, in fact, exercised it. 

In an Arizona case, Pike, the court went further. In the 1960s, Arizona adopted a rule that cantaloupes harvested in the state had to be processed and packaged here as well. In that case, the court adopted a balancing test. If the burden on out-of-state competitors exceeded the local benefit of the policy or rule, it constituted a dormant Commerce Clause violation. In the Arizona cantaloupe case, the justices decided that it did.

So, an even more extensive policymaking role for judges, again purportedly deduced from a simple grant of authority to Congress. 

In this case, a court majority found that the pork producers hadn’t made the case for a Commerce Clause violation of any kind, so the California requirement stands.

Gorsuch sought to go further and get the court out of the policymaking business of weighing costs and benefits and deciding in which direction the scales tip. 

The recent abortion decision notwithstanding, the justices are highly reluctant to explicitly overturn a precedent. Instead, they split hair after hair. Gorsuch tried to reinterpret Pike as simply offering a methodology to help determine whether a policy constituted protectionism against out-of-state producers, not a separate category of potential dormant Commerce Clause violations. Only Justices Clarence Thomas and Amy Coney Barrett went along, and even Barrett did so with reservations. The rest of the court wanted the separate, balancing-test violation category kept.

In dissent, Chief Justice John Roberts opined that the pork producers had a balancing-test case that should be heard. California has very few pork producers, but consumes 13% of pork products. The pork production chain is concentrated, so pork producers arguably would have to adopt California’s cage requirements for all products, even for delivery to states without such requirements. And that, in the balancing test, might tip the scale toward costs to out-of-staters outweighing the benefits to Californians of feeling better about how their pork chops got to their table. 

Of course no one has to sell pork in California. Even if the state consumes 13% of pork products, that leaves 87% of the market up for grabs for producers who don’t want to comply with California’s requirements.

In reality, there is a cultural change taking place and the sentiment in favor of better conditions for produce animals is catalyzing processing renovations independent of political pressure or inducements from California and elsewhere.

Far beyond Roberts’ dubious market speculations, the implications for the sovereign rights of states of his dissent are startling.

In Federalist No. 45, James Madison famously wrote: “The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite ….The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State.” 

Now, I would let market forces change pork production practices, rather than adopt a mandate such as California’s. However, regulating what is sold is certainly a sovereign right of states and all states have a welter of such regulations. 

Nevertheless, according to Roberts, California’s sovereign right in this regard is defined and circumscribed by the current structure of the pork industry. Given the size of California’s market and the concentrated nature of the pork production chain, the ballot proposition might constitute a dormant Commerce Clause violation under the Pike balancing test. If California were smaller, or the pork industry more decentralized, perhaps not. Judges – not Congress, not the people of California exercising their franchise – will decide. 

Three of the other justices signed on to Roberts’ dissent. One of them, Brett Kavanaugh, wrote separately saying, accurately enough, that the founders wanted free trade among the states. They would be appalled, according to Kavanaugh, by the notion that a single state could dictate production practices nationwide.

In reality, they would be much more appalled by the notion that the sovereign right of a state would be defined and circumscribed by the structure of a particular industry at a particular point in time. Or that judges – not Congress, legislators, or voters – would be weighing and deciding the relative tradeoffs involved in how large of a cage should be provided to pigs on their way to becoming food.  

Reach Robb at robtrobb@gmail.com.