The Supreme Court's California pork ruling invites interstate economic warfare

In a 2018 ballot initiative, Californians emphatically (a 62.66 percent majority) expressed an arguably admirable sentiment. They did so, however, by enacting a measure that the court should have declared unconstitutional. It bans the sale in California of pork from pigs born from a sow confined, as almost all in America are, in small breeding pens that some people consider cruel. (Read Matthew Scully’s “A Brief for the Pigs” in the July 11, 2022, National Review.)

California imports 99.87 percent of the pork Californians consume, so the 2018 measure regulates almost entirely the behavior of non-Californians, only 4 percent of whom currently comply with California’s post-2018 breeding standards. To comply, breeders overall must spend hundreds of millions of dollars — or they will be excluded from California’s consumers, who comprise 13 percent of the national market for pork. It is logistically unfeasible to isolate pork destined for California from that destined for the other 49 states.

The Constitution’s commerce clause vests in Congress all power “to regulate commerce . . . among the several states,” and a court-created doctrine (the “dormant commerce clause”) prohibits states from discriminating against or unduly burdening interstate commerce. In its May 11 ruling upholding California’s law, the court engaged in hairsplitting about possible benefits from states’ possibly permissible burdens on interstate commerce. The court should instead have endorsed an amicus brief supporting the challenge to California’s law. Written by Michael W. McConnell of Stanford Law School, the brief said:

“States have authority only to regulate activities within their own jurisdiction.” And: “States generally may not punish people for deeds done in other states.” And a state “cannot block interstate commerce for the purpose of coercing or influencing the way people behave in other states.”

(California said requiring breeding sows to be confined as California now prefers will benefit the state’s public health. But the state offered no evidence of bad health effects from pork derived from pigs born to sows confined in ways that now offend California.)

McConnell warned that if the court allows California’s law to stand, the state can use its market power to impose its politics on non-Californians “in countless other ways.” He enumerated a few:

“It could block importation of goods not made in compliance with California’s labor laws, or by companies that select board members in ways that are lawful where they operate but not lawful in California. It could attempt to reduce water pollution in Minnesota by banning the importation of certain paper products into California — even though that paper would cause no more pollution in California than any other. Indeed, it could enact a comprehensive system of nationwide Environmental Social, and Governance (ESG) regulations, enforced by blocking interstate commerce from flowing into California when it comes from companies that do not comply.”

In a partial, and puzzling, concurrence with the court’s siding with California, Justice Brett M. Kavanaugh cited a brief filed by 26 states that warned: What if a state prohibits the sale of fruit picked by noncitizens? Or prohibits the sale of goods produced by workers paid less than $20 per hour? Or prohibits the sale of goods from producers that do not pay for employees’ birth control or abortions? Or that do pay for those?

California, which became a state in 1850, gained congressional seats in every decennial census through 2000, and did not lose a seat until it lost one after 2020. Today, so many Californians are fleeing the state’s high poverty rate (the nation’s highest), and high taxes, crime, housing costs and homelessness, the American Redistricting Project predicts that after the 2030 Census California will lose five seats.

Last week, the court ratified California’s itch to export the progressivism — the moralistic micromanaging of life — that partly explains the state’s accelerating export of residents. Eventually, the court should acknowledge that James Madison was, as usual, right: The practice of states restricting commerce with other states is “adverse to the spirit of the Union, and tends to beget retaliatory regulations.” And it violates Madison’s Constitution, which was written in part to prevent this.

George Will’s email address is georgewill@washpost.com.