Is it Kosher for California to Ban Out-of-State Pork?
Last month, the U.S. Supreme Court heard oral arguments in a case that could prove pivotal to the future of regulation and interstate commerce in the United States. In National Pork Producers Council v. Ross, the Court is reviewing a Ninth Circuit decision dismissing a challenge to California’s Proposition 12. That proposition banned the sale of pork products from animals that were raised under conditions that California voters consider “cruel”—regardless of the state where the animals were located and the pork products were produced.
The easiest way to understand National Pork, which we describe in an earlier essay, is that it asks the question: “What limits, if any, does the dormant Commerce Clause, or the U.S. Constitution more generally, impose on states’ ability to regulate for morality when significant impacts of that regulation are felt outside the state?”
Although there are precedential arguments both for upholding and striking Proposition 12, if the Supreme Court approves California’s far-reaching regulation, few limits would remain on states’ ability to act on moral grounds to impede trade with other states. It would also imply that U.S internal law provides a starkly different approach to this cross-border issue than do both international trade law and accepted practice in other common markets. Both trade and common-market law, both of which have devoted substantial attention to similar questions—have adopted regimes that likely would forbid California’s regulation.