The Commerce Clause and Prop 12

By Matt Reese

The Commerce Clause is outlined in Article 1, Section 8 of the United States Constitution. The purpose of this clause is to give regulatory power over commerce to Congress. Based on this clause, Congress can regulate commerce, including commerce between states. It gives Congress broad power to regulate interstate commerce and restricts states from impairing interstate commerce. It also prohibits any regulations or laws at the state level that would interfere with Congressional authority.

Early Supreme Court cases primarily viewed the Commerce Clause as a limit to state power rather than as a source of federal power. In more modern times, it has been viewed as either a way to grant broad additional powers to Congress, or a way to limit state government economic authority.

The many debates surrounding James Madison’s Commerce Clause in the Constitution were a big part of the recent U.S. Supreme Court ruling favoring the State of California’s Proposition 12 over arguments made by the National Pork Producers Council and American Farm Bureau. In the case, states’ rights are at stake. 

“Congress has not taken action in this area. This ruling is a coming out of a view of the Constitution and its construction and the proper operation of the court and really the role of judges versus legislators and the executive branch. It gets to the heart of our Republic and how our government is going to run,” said Michael Formica, National Pork Producers Council Chief Legal Strategist. “This was also understood by the founding fathers. James Madison understood this directly when he was drafting the Commerce Clause. We’re disappointed. We think the failure of Congress to weigh in on this with a lack of action shouldn’t prevent judges from being able to weigh in and draw clear boundaries between states and preserve the rights of not just states, but the citizens of one state not to have their businesses and their farms regulated by states that literally are thousands of miles away.”

In 2009, Ohioans passed a constitutional amendment requiring that the State of Ohio establish comprehensive livestock care standards, including topics such as euthanasia, disease prevention, and the housing of animals. The Ohio Livestock Care Standards Board was created to obtain public input and recommend guidelines for the Ohio Department of Agriculture to adopt as rules under the authority of the director of agriculture and state veterinarian. The board, composed of 13 members, meets three times a year to review established rules governing the care of cattle, swine, poultry, sheep, goats, llamas, alpacas, and horses. 

Proposition 12 was approved by California voters in in 2018 to set living space standards for sows, egg-layers, and veal calves. The real rub with Prop 12 is that the regulations apply to products sold in California, with fines, jail sentences and civil action in place as punishment for selling pork, eggs, or veal from animals not raised according to the standards. California produces very little pork, but accounts for significant domestic pork consumption.

Duane Stateler, a Hancock County pork producer and grain farmer who serves as vice president on the board of directors for the National Pork Producers Council (NPPC), said Ohio pork producers have been on the front lines in the ongoing battle with concerns about Prop 12 since it was passed. The measure directly undermines Ohio’s Livestock Care Standards Board for any livestock products produced in Ohio and sold in California.

“It really affected the pork industry to have 24 square feet of open pen space because that is in total contradiction to what the industry is doing in Ohio. We all remember that we made a deal with the Humane Society of the United State and Wayne Pacelle back in 2010 that set up the Ohio Livestock Care Standards Board. Through that, we determined when gestation stalls could be used, when they couldn’t be used, the size of the gestation stalls, and then going to the open pen after the sows are determined pregnant. HSUS came in and saw some of the work that Pat Hord had done. Pat was one of the first pork producers looking at changing to be in compliance — Kalmbach and Cooper Farms were right there with him. It’s amazing that in the open pen gestation that you find at about 20 square feet there’s a lot of open pen space. People don’t understand that pigs like to be close to one another. You can have a whole barn and have 20 pigs in it and they will all be probably in one or two spots all laying up against one another — that leaves a lot of open space,” Stateler said late in 2022. “So, when California Prop 12 came, they decided to make it 24 square feet because they knew the industry was at 20. The unfortunate part for residents of California is the fact that, when this was passed, it was only about 2% of the pork industry that could be compliant. Today it’s up to about 3% of the industry and California consumes about 15% to 16% of all the pork consumed in the U.S. That means someone was going to be short because you just can’t turn around and get that kind of compliance that quick. That is what Prop 12 did to us as far as for pork. And it not only involves the U.S., but Canadian pork flows into California, Mexican pork goes into California and even some European Union Danish ribs go into California. It is not just an American problem. It is also an international and export problem too.” 

While a SCOTUS ruling on the matter seems fairly final, there are still many questions about the wishy-washy nature of the details of Prop 12 and with regard to the Commerce Clause. The Supreme Court ruling in favor of Prop 12 was also a ruling passing the buck to Congress. NPPC, Congress and James Madison may yet have the final word on this matter.