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The Supreme Court hears the pork industry's case against an animal welfare law


At the Supreme Court today, most of the nation's pork farmers were pitted against California and the Humane Society of America. At issue is a California law banning the sale of pork from pregnant and nursing pigs that are confined to spaces so small they can't turn around. NPR legal affairs correspondent Nina Totenberg reports.

NINA TOTENBERG, BYLINE: The case is about more than pigs. It's about how much regulation a state may constitutionally enact when those laws have a significant effect on what happens in other states. In this case, California has fewer than 1% of the pork producers in the country. The state imports more than 99% of the pork meat it consumes. But the voters in the state, by a lopsided margin, voted to ban pork products that come from pregnant and nursing sows who are confined in cages that are so small they can't turn around.

At the heart of the case is the Constitution's commerce clause, aimed in part at promoting interstate commerce and preventing trade wars among the states. Now, that may not sound like a humdinger to a lot of listeners, but the Supreme Court's time limits on arguments seem to have flown out the window of late, and an oral argument that was scheduled for an hour and 10 minutes morphed into well over two hours. Timothy Bishop, representing the pork producers, conceded that California could ban pork products outright in the state, but he maintained it could not impose laws that affect what happens in other states. Justice Kagan:


ELENA KAGAN: If you're thinking about the costs, California banning your product would be the greatest costs of all.

TIMOTHY BISHOP: We're talking about the impact on the state where the business is located. You know, Iowa has 65,000 sow farms.

TOTENBERG: What California's doing, Bishop said, is essentially trampling on Iowa's ability to breed those sows. Justice Sotomayor pointed to a brief in the case from scientists who argue that keeping sows so confined increases the likelihood of new diseases jumping from animals to humans. And Justice Barrett seemed doubtful about the pork industry's assertion that a state's moral interests should have no role to play.

In that vein, there were many hypotheticals. Supposing this case occurred prior to the end of slavery, asked Justice Kagan, could a state ban products produced by enslaved people? Justice Gorsuch asked, why not let the market decide whether California's law would achieve its desired results? After all, he said, there appear to be some pork producers willing and able to step in and meet California's requirements.

Defending California's law, state solicitor general Michael Mongan faced just as many tough questions. Several justices noted that a lot of policy disputes could be incorporated into laws like this. What would stop Texas from banning products produced by union labor, or another state from banning fruit picked by undocumented workers, or yet another state from banning goods produced by people in a state with a lower minimum wage? Justice Alito:


SAMUEL ALITO: Is California unconcerned about all this because it is such a giant? You can bully the other states, and so you're not really that concerned about retaliation.

TOTENBERG: Justice Kagan followed up.


KAGAN: You know, we live in a divided country, and the Balkanization that the framers were concerned about is surely present today. You know, do we want to live in a world where we're constantly at each other's throats and Texas is at war with California and California at war with Texas?

TOTENBERG: The questions were sufficiently difficult that both Justices Kavanaugh and Kagan noted that the case had come to the court at what is known as the pleadings stage - without a trial or findings of fact. That could allow the court to make a minimal decision and send the case back to the lower courts for a fuller exploration. Nina Totenberg, NPR News, Washington. Transcript provided by NPR, Copyright NPR.

Nina Totenberg is NPR's award-winning legal affairs correspondent. Her reports air regularly on NPR's critically acclaimed newsmagazines All Things Considered, Morning Edition, and Weekend Edition.
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