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Here’s Why a Big Pork High Court Lawsuit Matters

The potentially wide-reaching Commerce Clause implications of a pending Supreme Court case about California’s meat industry.
March 15, 2023
Here’s Why a Big Pork High Court Lawsuit Matters
(Shutterstock)

In a little-known case pending this term, National Pork Producers Council v. Ross, the U.S. Supreme Court will decide the constitutional validity of California voters’ 2018 ballot measure forbidding the sale of pork that does not come from animals born to pigs individually housed within at least 24 square feet of usable floor space. The case has implications not just for the humane treatment of pigs but also for Congress’s power to regulate commerce and states’ ability to enact laws that impact other states on a range of issues.

In industrialized U.S. agriculture, sows—female breeding pigs—are typically confined to “gestation crates,” which are barely larger than their bodies. In 2007, the largest pork producer in the world, Smithfield Foods, announced it would phase out gestation crates and transition to a “group housing” model. Nonetheless, in 2021, the Humane Society of the United States sued Smithfield, alleging that under company policy, “long periods of solitary, severe confinement begin before a sow’s pregnancy and continue for periods of her pregnancy, and then repeat after her piglets are born,” with the result that these highly social animals “are intensively confined for roughly half their lifetimes.” The lawsuit argues that Smithfield is deceiving consumers about its production practices in violation of Washington, D.C.’s Consumer Protection Procedures Act.

In 2018, California voters decided to do something about gestation crates. Named the “Farm Animal Confinement Initiative,” Proposition 12 prohibits the confinement of calves raised for veal, breeding pigs, and egg-laying hens in areas below a specific number of square feet in the state. It also bans the sale of veal, uncooked pork, and eggs from animals kept in smaller areas. Violations are considered misdemeanors and carry a $1,000 fine. The Humane Society sponsored the ballot initiative. Its president, Wayne Pacelle, explained: “Californians know that locking farm animals in tight cages for the duration of their lives is cruel and compromises food safety. All animals deserve humane treatment, especially those raised for food.”

Opponents within the egg and pork producer industries argued that the measure would increase food prices and prompt meat and egg shortages. After voters approved the proposition 63-37, the industry groups sued the California food and agriculture secretary in federal court in California, claiming that Prop 12 violates the U.S. Constitution’s Commerce Clause, which empowers Congress to “regulate Commerce . . . among the several States.” Although the Commerce Clause says nothing about restricting state law, the Supreme Court has interpreted it as implicitly prohibiting states from passing laws that disrupt economic activities in the nation as a whole. Only Congress can do that, according to the Court’s so-called “dormant Commerce Clause” precedent. “The inevitable effect of Proposition 12 is to regulate out-of-state production,” the plaintiffs argued, because out-of-state producers must change their operations in order to sell their pork in California. Because 87 percent of pork produced in the United States is consumed outside of California, they claim, the law impacts mostly non-Californians.

The lower federal court dismissed the case in April 2020, ruling that Prop 12 “does not regulate extraterritorially because it does not target solely interstate commerce and it regulates in-state and out-of-state conduct equally.” The U.S. Court of Appeals for the Ninth Circuit agreed, holding that Prop 12 doesn’t dictate the price of pork in California, and that any “upstream” effects on how pork is produced and sold outside California do not violate the Constitution.

At oral argument before the Supreme Court on October 11, 2022, counsel for the pork industry explained the economic conundrum for the pork industry:

Pigs go to a nursery, a finisher, then a slaughterhouse, where the packer butchers them into parts that are sold around the world in response to demand. The only safe course is to raise all pigs the California way, which is what we see buyers demanding, and the costs of doing that inhere in pork parts sold in places where buyers are unwilling to pay more to satisfy California’s policy preferences. If Proposition 12 is lawful, New York can say that pigs have to have 26 feet of space and send inspectors into farms to police compliance as California does.

Justices from both ends of the ideological spectrum expressed concern that a ruling in favor of California voters would enable individual states to impose their “moral” views on citizens of other states. Justice Elena Kagan posited that states could incorporate “a lot of policy disputes” into their laws, such as by either requiring—or banning—products produced using union labor. Justice Brett Kavanaugh asked whether a law could say “you can’t sell fruit in our state” if it’s harvested by undocumented individuals. Justice Amy Coney Barrett asked counsel for California whether that state could “pass a law that said we’re not going to buy any pork from companies that don’t require all their employees to be vaccinated or from corporations that don’t fund gender-affirming surgery.” (The distinction, retorted counsel, hinges on the production of goods and not on company-wide policies.)

The justices also probed the implications of siding with Prop 12’s challengers. States pass laws for their citizens every day, and it’s not hard to identify out-of-state impacts of a whole range of laws that most people would assume are reasonable things for a particular state to do. Justice Kagan asked counsel for the challengers, for example, whether it would be unconstitutional for a state to require businesses that import firewood into the state to use certain pesticides, presumably on the rationale that the state has an interest in protecting its citizens from wood-damaging pests from other states. Candidly, counsel responded yes.


As with much of constitutional law, the question in this case inevitably comes down to balancing some combination of interests—the interests of California and its voters (not to mention their sows and calves and hens), the interests of other states and their citizens, and the interests of Congress in protecting its plenary prerogative under the Constitution to regulate interstate commerce. Said Justice Neil Gorsuch to counsel for the challengers: “When the alternative you are selling us appears to be that this Court should engage in a freewheeling balancing test,” why not “defer to state regulation on health and safety?”

Once again, the elephant (or pig) in the room is abortion, which the same Court last year sent back to the states for regulation in Dobbs v. Jackson Women’s Health Organization. A federal district court in Amarillo, Texas, is holding a hearing this week on a sweeping challenge to the Food and Drug Administration’s power to continue to authorize the drug mifepristone for early-term pregnancy terminations. As Cornell law professor Michael Dorf wrote for Verdict:

If California can exclude pork products based on moral opposition to the treatment of the pigs from which they came, can states with strict abortion prohibitions exclude abortion pills sent from other states? So it would seem.

Once again, a complex matter of profound moral, ethical, economic, political, and constitutional implications—and no clear answer—lies at the feet of nine unelected individuals in robes. Given Congress’s broad power to regulate interstate commerce under the Constitution, the Court might do well this round to decide that it’s for the democratically accountable legislative branch to make the call as to whether California went too far.

Kimberly Wehle

Kimberly Wehle is a contributor to The Bulwark. She served as an assistant U.S. attorney and an associate independent counsel in the Whitewater investigation. She is currently a professor at the University of Baltimore School of Law. An ABC News legal contributor, she is the author of three books with HarperCollins: How to Read the Constitution—and Why, What You Need to Know About Voting—and Why, and, most recently, How to Think Like a Lawyer and Why—A Common-Sense Guide to Everyday Dilemmas. Her new book, Pardon Power: How the Pardon System Works—and Why, is forthcoming in September 2024 from Woodhall Press. @kimwehle.