Just last month, the Supreme Court heard oral arguments in National Pork Producers Council v. Ross, a legal challenge to California’s Prevention of Cruelty to Farm Animals Act (PCRA). Though perhaps unsound as a matter of policy, the PCRA is perfectly constitutional. The court should uphold the act as a lawful exercise of state power.
In 2018, Californians approved Proposition 12, a new law requiring livestock producers to comply with heightened standards for their confinement systems. Now, out-of-state farmers seeking to avail themselves of the Golden State’s 39.35 million person market must certify their products are compliant with Proposition 12 regulations, among the most onerous of their kind across the nation.
Hailed by some as “historic legislation that affords animals in agriculture additional welfare measures,” the Act is not without criticism. Robert Alt, president and CEO of the Buckeye Institute, lambasts Proposition 12 as a power-hungry attempt by Golden State bureaucrats “to regulate pig farming nationwide,” one which inflicts unnecessary compliance costs and ultimately imperils interstate commerce. Mr. Alt makes a compelling case that Proposition 12 is bad policy, but he is wrong to suggest it violates the Commerce Clause.
Article I, Section 8, Clause 3 of the Constitution empowers Congress “to regulate commerce with foreign nations, and among the several states.” It does not disempower the states from doing anything. As ours is a government of enumerated powers, those powers not given remain with the states. Such is the command of the Tenth Amendment and was no doubt the intention of the Founders. In Federalist No. 32, Alexander Hamilton made plain that “where it was deemed improper that [certain] authorities should reside in the states,” the Framers inserted “negative clauses prohibiting the exercise of them by the states.”
The clarity of text and history notwithstanding, the Supreme Court has read into the Commerce Clause a negative implication, concocting a doctrine known as the “dormant Commerce Clause.” The theory goes that because Congress possesses the exclusive power to regulate interstate commerce, the States may not unduly burden such commerce, even incidentally. The justices have applied this judicial fiction to invalidate state laws on the policy ground that their local benefits cannot justify their burdens on interstate commerce. Our Founders, however, vested this power in Congress, and for good reason.
Judges are legal generalists trained in the interpretation of legal texts. “It is,” as Chief Justice John Marshall so famously explained, “emphatically the[ir] duty … to say what the law is.”
The dormant Commerce Clause, however — untethered from any text — places them in the position of legislators, empowering them, in the words of Justice Clarence Thomas, “to make policy-laden judgements that [they] are ill equipped and arguably unauthorized to make.”
In National Pork Procedures Council v. Ross, the Supreme Court has been asked to invalidate animal-rights legislation duly enacted by the people of California. It’s asked to do so not because the law conflicts with the constitutional text or any federal statute, but because it’s a bad policy whose benefits to animal welfare are simply too minimal to justify the transnational economic burden. That may be so.
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Nevertheless, it’s not the court’s job to weigh the costs and benefits of public policy. That job belongs to legislators, whose vulnerability to voters incentivizes them to craft policies in accord with the public will. Chief Justice William Rehnquist said it best: “If there is going to be a council of revision, it ought to have at least some connection with popular feeling.”
Proposition 12 may be bad policy. But it is Congress — not the courts — that holds the awesome power to regulate interstate commerce. The Supreme Court should uphold Proposition 12 and kick the debate to the people’s elected representatives where it belongs. Indeed, this is what the Constitution commands.
Charles Brandt is a J.D. candidate at The George Washington University Law School.