Four years ago, California voters approved Proposition 12, in which a “yes” vote was promoted to “establish minimum space requirements based on square feet for calves raised for veal, breeding pigs, and egg-laying hens and to ban the sale of (a) veal from calves, (b) pork from breeding pigs, and (c) eggs from hens when the animals are confined to areas below minimum square-feet requirements.”

That proposition has been challenged, however, as unconstitutional on the basis of something missing from that proposition, namely, where it would apply. A California state law would have to apply to those industries nationwide, for producers who wish to sell anything to California consumers. And the Supreme Court has agreed to hear that challenge, based on what is called the “Dormant Commerce Clause” (because it gives exclusive jurisdiction over interstate commerce to the federal government, which excludes state interference with such commerce, even if no federal law has been passed on a topic). Oral arguments in National Pork Producers Council v Karen Ross will take place October 11.

It is important to note that there would be no federal constitutional violation if the proposition applied solely to producers of those products located in California, as one might well have expected was the case, given the lack of attention to that detail in the “yes” campaign. But California does not have the right to legislate for producers located in other states, which almost all of them are. 

While the state comprises a substantial proportion of the U.S. market for pork, California imports 99.87 percent of its pork. That would mean Proposition 12 would have virtually no effect on the California producers they have legitimate jurisdiction over, and a massive effect on producers nationwide, over whom it has no legitimate jurisdiction. Very few of those producers meet the standards promulgated, which have cost those producers around $300 million. Because pork production and distribution is highly integrated, and California is a major market, the effects would extend to virtually every pork product sold everywhere in the country. The state would even send California Department of Food and Agriculture agents throughout the country to enforce those regulations. Further, 15 other states opposed Proposition 12 as a violation of their sovereignty.

It is hard to think of a more blatant violation of the Constitution’s Commerce Clause’s denial of state power over interstate commerce. That is why Elizabeth B. Prologar, the Solicitor General of the United States, “has come down on the side of the Interstate Commerce Clause and the pork producers.” That clause arose from many state regulations that had burdened interstate commerce under the Articles of Confederation, abuses which led to a call to the Constitutional Convention. Further, overturning state restrictions on interstate commerce (following the traditional meaning of regulate as “to make regular” or “to remove impediments”) were the sole applications of the Commerce Clause for America’s first century. And given the very tenuous bases under which the Supreme Court has invoked the Commerce Clause as a source of federal supremacy in the past, such as in Wickard v. Filburn, any sort of judicial consistency would put Proposition 12 well outside constitutional limits.

The Federalist Papers also support this interpretation. Federalist 11 describes the proposed federal power as a “prohibitory regulation, extending… throughout the states.” Federalist 42 describes its purpose as “the relief of the States…from the improper contributions levied on them by [other states].” Further, in 1785, a committee headed by James Monroe recommended amending the Articles of Confederation to give Congress “sole and exclusive” power to regulate commerce. James Madison in his Journal made clear that nationwide regulations on commerce (which Proposition 12 would impose) were a power solely granted to Congress.

Proposition 12 not only oversteps California’s regulatory powers under the U.S. Constitution, it also violates the political principle that those who will be forced to abide by laws should have a voice in them. Pork producers, as well as related producers and workers, in every other state would be forced to abide by laws that they had no say in, because a majority of voters in California, where its burdens would be virtually insignificant, approved forcing others to pay the price to give them what they want. What it most brings to mind is its inconsistency with an important phrase that played a big role in the creation of America: “No taxation [or regulation] without representation.”