If it is not already, the U.S. Supreme Court should be skeptical of California’s illegal decree issued to the nation’s pork producers. On Oct. 11, the Court heard over two hours of oral argument in National Pork Producers Council & American Farm Bureau Federation v. Karen Ross.
The pork producers challenge part of California’s Proposition 12, which requires that all pork sold in California must come from the offspring of a sow confined in 24 square feet or more of usable floorspace. Californians account for 13% of the nation’s pork consumption. But California imports 99.87% of its pork. This means that Proposition 12, in practice, regulates wholly out-of-state pork production. Anyone who violates California’s law is a criminal who can be jailed or fined thousands of dollars. California obtains compliance with Proposition 12 by sending California inspectors to out-of-state farms. Through Proposition 12, California seeks to coercively remodel and micromanage the nation’s $26 billion pork industry.
Supported by 26 states and the United States, pork producers assert that Proposition 12 is a fundamentally defective law that violates the extraterritoriality doctrine. The case is therefore poised to test whether the Constitution’s structure and the separation of powers protect all states’ policy choices on an equal basis such that no one state can wage a moral crusade inside another state.
The extraterritoriality doctrine has been known by different labels – interstate parity, federalism, checks and balances, or the dormant Commerce Clause. At its core, it remains an essential separation-of-powers feature of the United States Constitution designed to protect “We the People” from government overreach.
The extraterritoriality doctrine is not simply a negative implication derived from the Commerce Clause. It is necessary to give effect to the entire Constitution and ensure the horizontal separation of powers between states – when one state enacts encroaching or protectionist measures like Proposition 12, the vertical separation of powers necessitates that the federal government should impede such state actions. Early Americans were familiar with Balkanized state regulation. Competing extraterritorial legislation of debtor states against creditor states and vice versa ultimately led to the scrapping of the Articles of Confederation. To “form a more perfect union,” the Constitution, which replaced the Articles, contained robust guarantees that prevented a recurrence of such abusive state practices.
In oral argument, U.S. Deputy Solicitor General Edwin Kneedler stressed that the extraterritoriality doctrine is housed in “horizontal federalism” and “constitutional structure.” Besides the briefs of the parties, there were 54 amicus briefs filed in the case. Many briefs derided the extraterritoriality doctrine as being derived from the dormant Commerce Clause – as if labeling it so conclusively shows the invalidity of the doctrine. The dormant Commerce Clause (like substantive due process) carries a bad reputation in some quarters. And Justice Clarence Thomas, on more than one occasion, has questioned the validity of the “negative” Commerce Clause, even though he has carefully applied the Constitution’s separation of powers.
The federal government’s position that federalism and separation of powers are the bedrock on which the extraterritoriality principle rests is, therefore, key to thinking about how the justices will decide the case. The Supreme Court has carefully policed the states and the other two federal branches when they have taken excursions beyond their defined, separated functions, waged incursions to encroach on the functions of co-equal sovereigns, or sought to aggrandize one branch’s role by diminishing that of a sister branch. California’s pork-production law, which seeks to impose California’s views of animal husbandry on the world, is plain unconstitutional regulation by one state of conduct occurring wholly in another.
States like California are finding ways to pretextually advance an in-state hook to control out-of-state behavior that they find inconsistent with their policy, moral, or other preferences. California can pass laws about pork-raising within California – so long as nothing else in the state or federal constitutions forbids such laws. States “can be laboratories” and “experiment as much as they like,” Timothy Bishop, counsel for the pork producers, told the justices on Tuesday, echoing Justice Louis Brandeis’s famous words. But “the laboratory is the state”; California cannot pass laws on out-of-state pork raising. That is the essence of the extraterritoriality doctrine, and the Supreme Court should categorically say so.
This case is not about the size of pig pens. It is about whether the federal Constitution meaningfully confines the square footage of errant states’ egos.
This op-ed was originally published at Daily Journal on October 18, 2022.