June 23, 2022

Amicus Brief Filed Supporting National Pork Producers Council & American Farm Bureau Federation v. Karen Ross

Erik Jaffe, Gene Schaerr, and Joshua Prince have filed an amicus brief in National Pork Producers Council & American Farm Bureau Federation v. Karen Ross et al. 

The brief of North Carolina Chamber Legal Institute, North Carolina Pork Council, North Carolina Farm Bureau, and several other State Farm Bureaus, Pork Councils, and business groups as Amici Curiae supporting petitioners.

It argues that allowing extraterritorial state regulation of trade would have tremendous economic and social consequences, harming pork producers, the economy, and consumers nationwide.

Processing fewer animals ultimately means less meat for consumers, which pushes up retail prices. The effects of the increase in costs will be felt the hardest by the poorest Americans, who will have to go without or will have less to spend on other goods and services.

The brief goes on to say that allowing states to condition access to the interstate markets as a way to impose local political choices on sister States would Balkanize the economy and further polarize the Nation.

If California can restrict access to its markets based on its disapproval of conduct beyond its borders, then so can other States. For example, States requiring higher minimum wages could demand comparable pay by companies operating in other states as a condition for allowing imports, either on self-righteous moral grounds or to make their own now-more-expensive goods competitive.

It also argues that Proposition 12 violates a properly understood reading of the commerce clause and the horizontal separation of powers.

California has attempted to impose its preferences regarding local animal husbandry on the Nation as a whole, using restrictions on commerce traveling into California as a cudgel to enforce its demands. That extraterritorial regulation violates the original public meaning of the Commerce Clause and basic principles of horizontal federalism. This Court should hold that Proposition 12 violates the Constitution, whether as an original matter or via dormant Commerce Clause jurisprudence re-animated by such text, history, and structure.

You can read the full brief here: