Earlier this month, the US Supreme Court decided a case that, if the principles implicit in its outcome are extended further, can place any state, no matter how conservative its politics, at the political mercy of big progressive states like California or New York that possess disproportionate market power.
Our story begins with the popular initiative of the citizens of California to pass a law that prohibits the sale in California of pork produced from pigs that are “cruelly confined.” Now, if they had simply outlawed the cruel treatment of animals in their own state, there would be no legal dispute with their decision. Instead, what they did was ban the sale of cruelly produced pork, no matter where it was produced. However, very little country pork is produced in California; it is produced disproportionately in traditionally agricultural states like Iowa, Minnesota, and Indiana. It is the pork producers, mostly from out of state, who, if they want to sell their product in California, will have to change their ostensibly evil ways.
The problem for pork producers is that California consumers make up 13% of the $20+ billion pork industry. Most pork producers cannot afford to give up such a large market share, but complying with state law will require them to completely restructure their operations, costing hundreds of millions of dollars and most likely raising the price of pork to about 10%
Faced with such dire costs, pork producers believed their only option was to ask federal courts to strike down the law as unwarranted interference with interstate commerce. Since almost the beginning of the nation, but even more so in the last four or five decades, the US Supreme Court has been willing, under what the court calls the Negative or Inactive Commerce Clause doctrine, to void state laws when the burden placed on interstate commerce clearly exceeds the purported benefits of the law. So in this case, the national business community, looking at what most observers call a conservative court, hoped that the court’s new majority would seize the opportunity to strike down what the producers and their allies believe is an ideologically motivated law. that disrupts a significant part of the national economy.
But contrary to the assumptions of the court’s critics, the justices are not purely political: they hold principled views and therefore disagree on the legal meaning of the Constitution. When it comes to the Negative Commerce Clause, the supposedly closed conservatives are divided. While most conservatives, as a matter of policy, would not like the California law, several of the conservative justices, including Justice Neil Gorsuch, the lead opinion author in this case, believe that the people of California As long as it treats California, and out-of-state producers have an equal right, under our federal system of government, to decide that they don’t want immorally produced goods sold in their state. Californians do not lose the right to govern themselves as they wish just because the size of their state allows them to have more influence than other places.
Will California’s decision make us poorer as a nation? Most likely. But maybe some principles are more important than money. Keep in mind that if we think the economic loss is too great, Congress has the legitimate democratic authority to preserve the market as it is.
Andrew Spiropoulos is Robert S. Kerr, a senior professor of constitutional law at Oklahoma City University. The opinions expressed in this column are those of the author and should not be attributed to the institution.
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