High court to hear arguments on Farm Animal Confinement Initiative

INDIANAPOLIS — The eyes of the nation may be focused on another Supreme Court decision, but an upcoming debate in the nation’s highest court could hinge on how an unwritten clause is interpreted by the court.

“It could have wide-ranging significance, not just for ag business or the ag world, which it certainly would, but for other areas of law, as well,” said Brianna Schroeder, an attorney who specializes in agricultural law at Janzen Schroeder Agricultural Law LLC.

Schroeder discussed some of the key points surrounding California’s Proposition 12 ballot initiative and the Supreme Court agreeing to hear the appeal of a court decision that upheld the law.

“The fact that out of the hundreds and hundreds of cases presented to the U.S. Supreme Court, it picked this one to hear, it makes me think they are going to change the Ninth Circuit’s opinion in some way,” Schroeder said.

Proposition 12, also known as the Farm Animal Confinement Initiative, establishes minimum space requirements for calves raised for veal, egg-laying hens and breeding pigs and bans the sale of products from those animals in California if the space requirements are not met by producers.

The November 2018 Farm Animal Confinement Initiative passed in California, with 62% of voters, 7,551,434 voters, approving it and 37% of voters, 4,499,702 voters, opposing it.

In 2019, the National Pork Producers Council and the American Farm Bureau Federation filed a complaint asking the U.S. Southern District for California to invalidate the law, saying that it violated the Interstate Commerce Clause of the U.S. Constitution.

In April 2020, a Southern District judge dismissed the case. The NPPC and AFBF appealed to the Ninth Circuit Court of Appeals and the Ninth Circuit ruled against them in July 2021.

The NPPC and AFBF appealed to the U.S. Supreme Court and in March, the U.S. Supreme Court agreed to hear the case. Oral arguments are scheduled for Oct. 11.

“A case like this obviously has attracted national attention. There will be a ton of amicus briefs. The court is going to have a lot of material to go through. Oral arguments could be pretty messy with a lot of different voices. Thinking out loud about it, I bet we don’t have a decision until 2023,” Schroeder said.

The deadline to file amicus or “friend of the court” briefs in the case was in mid-June.

“We can expect there will be lots of amicus briefs filed by people on the pro side, the con side, every side,” Schroeder said.

Briefs in support of the NPPC and the AFBF were filed by the Biden administration, state ag groups, state pork producer associations, the American Association of Swine Veterinarians and the North American Meat Institute, as well as other non-ag groups, including legal groups, individual attorneys and pharmaceutical associations.

Schroeder said the case could hinge on how the court decides to interpret the dormant Commerce Clause.

“The dormant Commerce Clause, as the name suggests, is this idea that we have, over 200 years, just read into. It’s like an assumed or implied sort of thing,” Schroeder said.

The Commerce Clause itself is a constitutional clause.

“The written Commerce Clause that’s in the Constitution says that Congress regulates commerce between the states. So, we’ve said, we as a society over the years have said, if we know that Congress regulates commerce between the states, that must mean states are not allowed to pass laws that burden or prohibit interstate commerce,” Schroeder said.

Schroeder noted that the courts have, over time, rejected the dormant Commerce Clause in various cases and the Ninth Circuit alluded to the decline of the dormant Commerce Clause in its Proposition 12 decision.

“The Ninth Circuit, in its decision that said no, people challenging this law, you didn’t plead a case under the dormant Commerce Clause, said that while that clause is not yet a dead letter, it’s moving that way. That would probably fit with what a lot of courts across the country would say,” Schroeder said.

If the Supreme Court does uphold the dormant Commerce Clause argument in favor of the NPPC and AFBF, Schroeder said that could have impacts outside of agriculture.

“I think what we are all looking for is if the Supreme Court holds that Prop. 12 violates the dormant Commerce Clause, that’s a big deal. I think not just ag people, but I think a lot of industries are watching this because people have been acting like the dormant Commerce Clause is all but dead and now we see the Supreme Court taking a dormant Commerce Clause case,” Schroeder said.