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Supreme Court ruling on Prop 12 is a big loss for agriculture

Justice Kavanaugh’s partial concurring and partial dissenting opinion suggests how the case should have been handled to support ag across the states.

Gary Baise, Attorney at Law

May 15, 2023

3 Min Read
hog farm
Odairson Antonello/Getty Images Plus

The United States Supreme Court ruled on May 11, 2023, on a case that says California may set the standard on how we raise pork in the United States. A lot has been written about this case. (I will look at the bright side.) The case involved the National Pork Producers Council and the American Farm Bureau Federation, represented by the smartest lawyers in the land. Despite the ruling, not all was lost.

I urge everyone to read the opinion of Justice Kavanaugh (starts on page 51 in the link). He lays out how the pork industry should have handled the case, pointing out the NPPC Proposition 12 case is a “fractured decision.”

There is a lot of legal jargon in Justice Kavanaugh’s opinion but on page 52, he lays out the road map for the future for American agriculture. He says economic regulations “…like California’s Proposition 12 may raise questions not only under the Commerce Clause, but also under the Import Export Clause, the Privileges and Immunities Clause, and the Full Faith and Credit Clause.” I wonder why all the lawyers did not think of these questions for the farmers.

When our Constitution was being framed in the 1780s, the founders wanted to create a national economic market. This would get away from state interference, such as Proposition 12, and it would not cut off the “lifeblood” of the nation. We were an agriculture nation in 1780, and our founders wanted to foster free trade. In fact, the ratifying convention members stated, “Fostering free trade among the states was prominently cited as a reason for ratification.” The Framers of our Constitution wanted, above everything else, to protect free trade among the states.

We have had 234years of progress until Proposition 12 was passed by the citizens of California. The vast majority of pig farms are not located in California, however “…all pork sold to consumers in California must be derived from pigs raised in compliance with California’s strict standards for pig farming. By its terms, Proposition 12 applies to pigs raised and pork produced outside California.”

As all of us know, few farmers follow the space requirements required by California. “And California’s 13-percent share of the consumer pork market makes it economically infeasible for many pig farmers and pork producers to exit the California market.” I suggest to all of you reading this blog that California will force massive changes on pork farmers, many will go out of business, and bacon, like eggs, will go up in price. (Look at egg prices!)

One thing that Justice Kavanaugh suggested: “Congress could enact a national law imposing minimum space requirements.” This offers a way for American agriculture to correct this egregious decision and correct the idea that California knows best when it comes to an economic plan for pork production in the United States. Justice Kavanaugh is opposed to the conclusion of the majority that “California’s law may foreshadow a new era where States shutter their markets to goods produced in a way that offends their moral or policy preference.”

He criticizes the idea that all lawyers have focused on the Commerce Clause and the Dormant Commerce Clause precedents. Justice Kavanaugh, on page 56 of the 58-page opinion, points out how to correctly attack this issue. I suggest all of you read Justice Kavanaugh’s opinion. It might help if NPCC and AFBF did not have constitutional lawyers represent agriculture. It might help if they had some lawyers on agriculture’s side who understood what our founding fathers were creating in 1780s to protect free trade. When our present justices conclude that the cost Increases “do not qualify as a substantial burden to interstate commerce”, frankly, they do not know what they are talking about. Our founders should shutter!

About the Author(s)

Gary Baise

Attorney at Law, Gary H. Baise

Gary Baise is an Illinois farmer and attorney. He also serves as outside General Counsel for several national agriculture organizations, including Agricultural Retailers Association and National Sorghum Producers. Baise organized President Trump’s agricultural team of advisers. He was the first Chief of Staff to the first U.S. Environmental Protection Agency Administrator. He owns a family farm in Jacksonville, Ill.

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