With the nation dealing with the coronavirus and widespread looting and violence by left-wing anarchists and criminal thugs, it may seem a minor issue whether California can impose upon the entire nation its animal confinement regulations on veal and pork producers.
But the question, addressed in recent oral arguments before the 9th Circuit Court of Appeals in North American Meat Institute v. Becerra, raises meaty constitutional and federalism concerns.
Here’s the background. In late 2018, California voters passed Proposition 12, banning the in-state sale of any pork or veal (regardless of origin) from an animal that had been “confined in a cruel manner,” defined as that which prevents an animal from lying down or turning around freely.
Beginning in January 2020, Proposition 12 also outlaws meat from veal calves housed with less than 43 square feet of usable space (much higher than even the European Union’s strict requirements) and, effective January 2022, from breeding pigs (or immediate offspring) not given 24 square feet.
Activists hyped Proposition 12 as a food safety imperative. The measure claims explicitly that unkind animal production methods increase the “risk of foodborne illness.”
Dr. Keith Belk, the head of Colorado State’s Animal Sciences Program and the University’s Center for Meat Safety & Quality, proved this assertion false in his unrefuted declaration accompanying the Meat Institute’s Motion for a preliminary injunction against Proposition 12. The evidence, he noted, suggests a higher prevalence of pathogens in meat from organic farming as compared to “intensively managed indoor swine facilities” — that is, so-called “factory farms.”
That Proposition 12 will increase food prices is beyond reasonable dispute. Declarations filed by executives from food producers explain how firms will be faced with the Hobson’s choice of spending hundreds of millions to comply or of abandoning the California market.
Even the state’s own Legislative Analyst’s Office concluded that Proposition 12 will increase food prices.
The irony is that over the last decade, in response to consumer sentiment, Tyson, Hormel, and the other big processors have restructured their facilities to move away from small pens and tethering of veal calves to group housing of animals.
Many of the tens of thousands of family farmers who partner with these producers have also restructured operations, often by taking on additional long-term debt.
But don’t expect Bruce Springsteen, Willie Nelson, Neil Young, and other leftist celebrities to help much. The “Farm Aid” outfit they support prefers fashionable organic farming concerns and espouses fundamentalism against food from genetically modified organisms.
Yet, the issue here is not just that Proposition 12 is bad policy. It’s also likely unconstitutional under the Supreme Court’s commerce clause precedents, including its “extraterritorial doctrine.”
In Baldwin v. G.A.F Seelig, Inc., the court ruled that a New York milk distributor could not be forced to pay New York minimum prices for milk supplied by Vermont farms.
“New York has no power to project its legislation into Vermont,” the court declared, before noting that the Founding Fathers gave Congress the power to regulate commerce because of “the mutual jealousies and aggressions of the States, taking form in customs barriers and other economic retaliation” existing under the Articles of Confederation.
California, to paraphrase Meat Institute counsel Paul Zidlicky in his excellent presentation, is, in effect, “project[ing] its legislation” into 49 other states with Proposition 12.
California Deputy State Attorney General Matthew Wise defended the measure as a legitimate expression of California’s desire to promote animal welfare. He tried to distinguish this case from Baldwin and its progeny.
Sandra Ikuta, one of the three judges on the panel hearing the case, appeared skeptical. She posed a hypothetical: What if California were to ban the importation of any product into the state made by workers who didn’t earn a given living wage? Wise replied that such a law “may be constitutional.” That seems hard to square with basic principles of federalism, which give Congress, not the states, power over interstate commerce.
Judge Consuelo Callahan, another member of the three-judge panel, expressed skepticism as to whether California could force its “moral compass” on the entire nation.
In truth, California’s “moral compass” is just stuck on stupid. The state’s myriad land use, environmental, and building restrictions are denying millions of its residents affordable housing, and now, California liberals now want to impose crazy rules on the entire nation’s food supply.
Fortunately, it looks like the judicial panel won’t let that happen. Count on the Meat Institute to get its injunction.
Ken Sondik is an attorney in Zionsville, Indiana.
