A case before the U.S. Supreme Court could have surprising, and perhaps counterintuitive, implications for supporters of federalism and the long-protected ability of states and municipalities to regulate their own commerce and pass what is broadly known as “morals-based” legislation.
The nine justices on Oct. 11 heard arguments in National Pork Producers Council (NPPC) v. Ross, which centers around California’s Proposition 12, a law passed in 2018 with overwhelming support from voters of both political parties.
The law set minimum public safety and animal welfare standards for pork and eggs produced or sold within the state’s borders. Those requirements state that pigs used for breeding, egg-laying hens, and calves raised for veal must have enough space simply to turn around and extend their limbs. Proposition 12’s guidelines parallel those being implemented successfully by hundreds of restaurant, grocery and food companies, and by many farmers across the country.
Concern about welfare of animals that are destined for human consumption goes beyond that of the animals’ themselves. Many health experts have weighed in on the threat to human health posed by the extreme confinement of pigs. In a brief submitted to the court in the NPPC case, the American Public Health Association, Infectious Diseases Society of America, Center for Food Safety and others wrote that confining female pigs in crates causes them enormous stress, which in turn makes them more prone to disease that can be passed on to their piglets. The implications are quite real: Hundreds of thousands of Americans are sickened every year by contaminated pork.
Indeed, Proposition 12 specifically implemented those concerns, prohibiting sales — within the state — of specified farm animal products if the animals were raised under extreme conditions that are not merely “cruel,” but that state officials determine “threaten the health and safety of California consumers” by (for example) increasing the risk of “foodborne illness.” Some conservative-leaning states, it should be said, have banned gestation crates within their borders, including Ohio, Arizona and Florida.
However, some multinational pork companies are pushing back against the will of voters and have sued to overturn the law. Courts from Iowa to California have rejected those companies’ claims that states cannot set standards on products sold within their borders.
In the court of public opinion, the pork producers are hoping to capitalize on conservatives’ often reflexive antipathy to California’s progressive tendencies that often do infringe on free-market principles. But there is a vital element that some voices on the right appear not to have fully considered. If the court rules in the pork producers’ favor, it could wreak havoc on the Constitution’s federalist system of government and open the door for liberal activist judges to strike down dozens of state and local laws across the country that are based on values that many conservatives claim as their own.
The longstanding state power to advance public morals, including preventing animal cruelty, traditionally has included the power to keep immoral products out of the marketplace as well. The Supreme Court long has respected the “State’s broad powers to regulate commerce and protect the public environment” and the “right to maintain a decent society.” (Paris Adult Theatre I v. Slaton.) If the court were to curtail California’s exercise of its traditional morals-based lawmaking power in this case, that restriction would also strip other states of this authority.
Existing laws that could be jeopardized by NPPC v. Ross include those regulating the sale of liquor, blocking trafficking in stolen goods, banning the sale of fetal tissue, outlawing prostitution, and limiting gambling.
Conservatives can debate the merits of such laws, but we can agree that these issues should remain at least partially in the purview of state and local governments. Notably, Proposition 12 does not attempt to project California’s moral views out-of-state, and is consistent with the federalist principle of states and municipalities setting laws that are right for their own communities. Blocking this ability would open the door for politicians and bureaucrats in Washington to fill the void with one-size-fits-all mandates, effectively emboldening the federal government to impose its own value judgments.
The Founding Fathers intended for states to retain extensive power and to not cede all of it to the federal government, including the authority to regulate commerce within their own borders. If the Supreme Court sides with the pork producers in NPPC v. Ross, this constitutional principle would be dramatically weakened.
Mario H. Lopez is president of the Hispanic Leadership Fund, a public policy advocacy organization that promotes liberty, opportunity and prosperity for all Americans. Follow him on Twitter @MarioHLopez.