Formica says Supreme Court decision about more than pigs

DES MOINES, Iowa — The date is stamped indelibly on many pork producers’ minds now: May 11, 2023.

In a 5-4 decision on that day, the U.S. Supreme Court ruled to uphold California’s Proposition 12 ballot initiative.

How? Why? And what, if anything, can be done now?

Michael Formica, chief legal strategist for the National Pork Producers Council, answered some questions during the 2023 World Pork Expo in Des Moines.

Is there any other legal recourse, any more action that can be taken?

Formica: There’s always something you can do. There is still ongoing litigation over this. The Iowa Pork Producers Association has a case that is currently pending. The North American Meat Institute has a case. Their case has not been dismissed yet and is technically still alive. They lost at the 9th Circuit, but they are still alive at the district court. There are challenges that could be launched against the regulations themselves in California state courts. Supply chain partners, grocers and restaurants in California, they still have a challenge that is going on over the way California has implemented this.

Is overturning Proposition 12 possible?

Formica: In California, you need 80% of both houses of the California state legislature to pass and the governor to sign in order to pass a law amending or overturning it. Is that possible? No. That’s never going to be possible.

What about launching a counter ballot initiative in 2024 to overturn Proposition 12?

Formica: I have seen some producers raise that possibility. I think people underestimate how difficult that actually is. I saw somebody online suggest we could do it for $5 million. It would be north of $250 million to even have a chance and you would still probably lose. Remember, you are not operating in a vacuum. The other side has unlimited money. They have Facebook money. They have Microsoft money. They have Google money. Plus, they have Hollywood money and star power.

What was your reaction to the decision on May 11?

Formica: When I saw Gorsuch wrote the opinion for the court, I knew we lost. We knew going into it we would never have Neil Gorsuch or Clarence Thomas.

Why not those two?

Formica: They do not believe in the existence of the dormant commerce clause because it doesn’t appear in the text of the constitution. You have a states’ rights Supreme Court and their ideological bent is going to prevail. We won, 6-4, on our legal theory and we won, 5-4, on showing substantial harm to interstate commerce, but we didn’t win. I’m still scratching my head over that.

Were you confident that the court would rule for the NPPC?

Formica: We always knew we could lose, we could win. We did what we needed to do. Oral arguments went right. Our legal theory prevailed. We showed enough harm. We should have prevailed. This case was about pigs and pig farming, but for the Supreme Court it was about a whole lot more. You’ve got a lot of long-term trends on the court’s makeup, on the ideological side, running into conflict with some of the business agenda side. You’ve got other moral questions that are floating around out there. I thought we were going to win. Had we won, if we had the same break up and fractured opinion and won, we wouldn’t have been in a good place to prevail if we were sent back down. It’s almost better to get the pain over with early on, rather than delaying the pain a couple more years.

What are the broader implications for this decision?

Formica: The Supreme Court opened up a world now where you are going to have states in competition with other states and we are going to quickly see significant changes in society as a result of this. California, Florida, Texas and New York will be able to dictate what the national economy looks like. The only state attorney general who did not support us on this case was the attorney general from Florida, because maybe it conflicted with Florida’s desire to fill, on the right, that same desire that California has on the left.

If you could talk to producers about the decision, what would you say?

Formica: We never said we were going to win. We always said we could win — and we could lose. We were going to get this case up there and we were going to fight the hardest fight, put up the best defense of the industry that we could and we think we did. This Supreme Court thinks this is a political question, not a legal question. The ball is now in Congress’s court or the court of state legislatures.