This opinion piece was published by Bloomberg Law.

Can California reach beyond its borders and replace other states’ policy choices with its own? In National Pork Producers Council v. Ross—popularly known as the bacon case—the US Supreme Court is considering just that question. The case involves California’s Proposition 12, which prohibits the sale of pork in California when that pork’s production doesn’t meet California’s regulatory requirements.

As a constitutional matter, California has gone hog wild. A proper respect for both the authority of the other 49 states to manage their own business and the role of the federal government in regulating commerce between the states would require the Supreme Court to rule against California’s audacious extraterritorial overreach.

Avoid Tension Between States

In forming the US, the states ceded certain powers to the new federal government—notably the authority to regulate interstate commerce. However, these coequal states did not cede power to regulate their own citizens to other states. If one state could impose its laws on another state—as California is attempting to do with Proposition 12—the Founders understood chaos would ensue.

To give but one hypothetical, if stereotypically progressive California imposes its policies on stereotypically conservative Texas, why would Texas not reply in kind by imposing its own policies on California? Justice Elena Kagan raised exactly this concern at oral arguments, noting that “the balkanization that the framers were concerned about is surely present today,” which led her to ask, “[D]o we want to live in a world where … Texas is at war with California and California at war with Texas?”

The union of the states and the US Constitution’s Commerce Clause were designed to alleviate tension by requiring that the states turn over interstate regulatory power to the federal government to allow for the free flow of unimpeded commerce among the states.

Yet, in passing Proposition 12, which imposes requirements on out-of-state farmers, California ignored this constitutional pact and sought to exert control over other states.

More Reasonable Approach Needed

As the Buckeye Institute highlighted in its amicus brief, in Ohio, for example, pork production regulations, which conflict with California’s, are set by a board that quite sensibly includes veterinarians, the dean of an Ohio college of agriculture, a member representing a humane society, farmers, food safety experts, and consumers. 

Yet a state geographically and philosophically removed from pork production—less than 1% of pork consumed in California comes from California—and whose unreasonable regulations emanated from activists rather than from a diverse and learned board insists upon setting the policy for the 49 other states that together produce 99% of the pork.

If allowed to stand, Proposition 12 also effectively strips Congress of its constitutional obligations to regulate interstate commerce. Should pork farmers decide they don’t wish to abide by California’s regulations, both the farmers and California residents will suffer. The farmers lose a substantial market, and California consumers lose a significant source of food, potentially causing at least increased pork prices—if not a shortage. 

As indicated by Kagan’s insightful question, such actions create incentives for pork-producing states to engage in retaliatory trade practices. This result is the opposite of the vision our Founding Fathers had of a union of coequal states.

Proposition 12 is more than a commercial point-of-sale restriction. It is a veritable hogtying of hardworking—more often than not Midwestern—farmers. The regulation explicitly controls how farmers in other states operate and even directs California regulators to physically enter and inspect farms in other states. If pork farmers refuse California bureaucrats’ intrusion onto their property, the farmers’ only recourse is to not sell to Californians—which is easier said than done given how supply chains operate.

For our economically complex nation to continue operating efficiently and without undue discontent between states, one state cannot dictate nationwide policy through regulations with overtly extraterritorial aims. 

If the Supreme Court permits California to persist in its ambitions, then Kagan’s legitimate concerns about regulatory wars between politically different states will almost certainly become an unpleasant reality not just for bacon lovers, but also for anyone who eats or participates in the economy, which is to say—all of us.

Robert Alt is the president and chief executive officer of The Buckeye Institute in Columbus, Ohio.

This article does not necessarily reflect the opinion of Bloomberg Industry Group, Inc., the publisher of Bloomberg Law and Bloomberg Tax, or its owners. Reproduced with permission. Published March 17, 2023. Copyright 2023 Bloomberg Industry Group 800-372-1033. For further use please click here.