The Supreme Court’s pork decision could empower states to set their national policies

WASHINGTON – The Red States have required publishers to change the content of history books to downplay race struggles and upplay religious figures. And blue states have adopted environmental standards that are stricter than other parts of the country.

Sometimes these and similar policies extend beyond the borders of a state.

Now, some experts say a new Supreme Court decision upholding a California animal welfare law could make it easier for states — conservative and liberal — to impose policies on large swaths of the nation.

“If you’re Gavin Newsom or Ron DeSantis and you want to enforce your legislation outside of your state, you probably feel more confident today than you did yesterday,” said Ruth Mason, a professor at the University of Virginia School of Law, the Democratic governor of California and the GOP Governor of Florida.

Decision:The Supreme Court is backing California in an animal welfare law that could have ramifications well beyond the bacon

Dispute:Supreme Court majority questions California law regulating hog farms and pork products

How a Supreme Court case over bacon could empower states

In California, pork must come from pigs that have larger stalls than most farmers will provide. The animal welfare law in question — known as Proposition 12 — requires companies that sell pork in California to ensure that the sow from which the slaughtered pig was born is kept in a minimum footprint of 24 square meters. While California residents consume a lot of pork, the state produces very little of it — meaning the burden of Prop 12 rests mostly on farmers in the Midwest and South.

The pork industry sued, claiming that the constitution prohibits such intergovernmental action in almost all cases. A 5-4 majority in the Supreme Court rejected that interpretation on Thursday. But the highly fragmented decision has done little to clarify what is and isn’t allowed.

To say there is no hard and fast rule, as the court has done, “seems correct,” said Mason, an expert on federalism. “But then what’s the rule? The rule cannot be, there is no limit to what a state can do.”

Michael McConnell, director of the Constitutional Law Center at Stanford Law School and a former federal appeals court judge, said he too was concerned about how states would react to the decision.

“I fear that the court’s opinion will pave the way for numerous state-level attempts to impose its wishes on the nation as a whole,” McConnell said, “even if the effects are felt solely in other states.”

Abortion, Environment, Technology: How Could States Respond?

States have passed different policies on education, the environment, work, health care, and other controversial and everyday issues in recent years. States’ reactions to last year’s Supreme Court decision in Roe v. Wade make this clear: many conservative states are banning abortion altogether, and some liberal states are taking steps to expand access.

It gets even more complicated when these policies affect interstate trade. One of the most notable examples is environmental policy. California and other states, for example, have introduced vehicle emissions standards that have forced much of the auto industry to bend to their will.

Other policies may be less obvious: New York required ISPs to offer discounted rates to low-income families. California has imposed its own net neutrality law on internet service providers, prohibiting them from blocking or slowing down some traffic or charging for delivering some content faster.

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“There are still some open questions about the extent to which states can enact such rules,” said Tejas Narechania, faculty director at the Berkeley Center for Law & Technology. “I think maybe the decision here suggests that states have the ability to do more of the same. I think this will be especially true in the technology space.”

Kavanaugh worries about “blueprint” for other states

In a partial disagreement, Judge Brett Kavanaugh expressed concern that the court’s decision would be a “blueprint for other states” and herald a “new era” in which one state would seek “unilaterally to impose its moral and political preferences on others.” .

What if a state banned the sale of fruit packaged by non-citizens, Kavanaugh asked. What if it banned the sale of goods made by workers making less than $20 an hour or who work for companies that refuse to pay for birth control?

“Endless litigation.” Why a spillover might be inevitable

California approved the ballot initiative in 2018 with support from about 63% of voters. The US Circuit Court of Appeals for the 9th Circuit dismissed the pork industry’s lawsuit and the Supreme Court upheld that decision.

Judge Neil Gorsuch, who wrote the court’s opinion, did not address those concerns directly. But he wrote that in the modern “networked national marketplace,” many state laws have the practical effect of controlling behavior beyond that state’s borders.

Adoption of the rule desired by pork farmers would, Gorsuch wrote, “cast a shadow over what has long been perceived as states’ ability to legislate affecting their own residents.”

“It would entail endless litigation,” Gorsuch wrote, “and inconsistent results.”