"... while red states respond with their own laws forbidding the sale of goods that are made by unionized workers. Justice Amy Coney Barrett worried about states prohibiting the sale of goods produced by unvaccinated workers; or by employers who won’t pay for gender-affirming surgery for transgender employees. Justice Brett Kavanaugh imagined a red state that bans the sale of fruit picked by undocumented immigrants. Their point was that, if California is allowed to effectively decide how pig farms will be run in all 50 states, that could permit... 'economic Balkanization'... Every state could start using their own laws to impose their will on their neighbors. And manufacturers might have to choose between selling their products in California (and complying with California's left-leaning rules) or selling their products in Texas (and aligning with Texas’s conservative values). But none of the justices seemed sure where to draw the line to prevent this kind of dystopia from emerging, while also permitting states to enact the kind of ordinary economic regulations that have existed for many years."
The case is about a California law banning the sale in California of pork from pigs not raised according to California standards. The constitutional law in question is the "dormant" Commerce Clause doctrine — the idea that Congress's power to regulate interstate commerce implies a loss of power to the state to engage in regulation that would damage interstate commerce.
You can listen to the lively oral argument here.
ADDED: This is good, from Justice Gorsuch (transcript):
[W]hy isn't [the Pike balancing test] just a form of enshrining non-textual economic liberties into the Constitution... a project this Court disavowed a long time ago? We're going to have to balance your veterinary experts against California's veterinary experts, the economic interests of Iowa farmers against California's moral concerns and their views about complicity in animal cruelty. Is that any job for a court of law? I mean, the Commerce Clause, after all, is in Article I, which would allow Congress to resolve any of these questions.
Posts
80 comments:
Every state could start using their own laws to impose their will on their neighbors.
Which is precisely the point of California's law. It dovetails with the prohibitions on spending state money in certain disfavored states.
I'm torn here. I believe in federalism, and I believe California should have the power to regulate farms in California. (For the record I oppose the new regulations on pig farms.) However California's economic and political power means that they can bully most of the other states, which ends up destroying federalism. (Have I mentioned before I favor breaking up California?) The ideal solution would be to promote farms you approve of (a seal of approval on such items? an ad campaign?) but allow the consumer to ultimately decide. Unfortunately, California is Progressive, and Progressives reject freedom of choice in favor of government power every time.
We already have concealed carry Balkinization.
Nice. Gahrie already said it. Let Cali tell Cali what to do. I'm quite tired of them telling the rest of us what to do and using their purchasing power to force it on us.
There's an idea that the morality of the production method is in the product, and the state can ban the sale of a meat produced through cruel conditions just the way it can ban a product with a toxic ingredient.
It's important to remember that Congress could pass a law preempting state laws that go too far. That's one way to understand the federalism — it's left to Congress to make the call, and the courts don't try to enforce federalism but let the states do what they want.
If you don't like California's commercial law, then you need to persuade Congress to pass a law preemptively regulating this area. Not an easy thing to do.
The true answer is for California to let their consumers decide in the marketplace. But that runs against the grain of our Leftist friends like nothing else. They know what's best and must force everyone - at least in their state - to agree.
Hasn’t there been and continues to be a lot of immorality in CA based film production?
Should be 9-0 but won’t be.
The idea that the product contains the morality of the methods used in its making is, I think, very old. People used to punish tree-limbs that fell on them. See “deodand.” And the hysteria over GMO food rests on a confusion between process and product. Then we have blood diamonds and fair trade coffee.
I don’t see an end any time soon to the illiteracy and magical thinking, nor to the need to virtue-signal with these laws that ban and punish. Federalism depends on tolerance and “play in the joints” —and we have become quite intolerant.
5 of 5
Blogger Gahrie said...I'm torn here. I believe in federalism, and I believe California should have the power to regulate farms in California.
The first story I read on this said that CA doesn’t have any pig farms. Which means this law is wholly about coercing other states. CA has a right to regulate the safety of food sold in its stores, but it has no legitimate interest in regulating the morality of other states. CA has long used its economic power to try to force its values on the rest of the country. Wherever the court decides to draw the line, it should be done so that this practice is stopped.
Ann Althouse said...There's an idea that the morality of the production method is in the product
There’s a term for that: magical thinking.
Restrictions do to the morality? Like firing an employee for being gay, or for traveling to another state for an abortion.
The concept flies in the face of basic freedoms?. Isn't that the coin of realm in this debate? Freedom?
I like the idea of forcing congress to fix any supposed slight, with legislation. I can't imagine a US where judges restrain themselves from treading where they lack constitutional jurisdiction.
We are in the middle of Dobbs being sorted out. The left is literally preaching the apocalypse because the People will apply their morals about abortion, through their elected Representatives. The left is acting like their hair is on fire because they cant force the "right" morals on their neighbors thru the unelected judiciary.
California's laws about pig production, are a lot like, Anthropomorphic Catastrophic Global Climate Change. The lack of evidence. Modern pork production does not harm the animals in any way. In fact, farrowing crates have saved the lives of billions of hogs.
Unintended consequences run rampant with the lefts "good idea". Cage free chickens? Sure get those cute a cuddly cluckers out in the sun and grass, happily eating June bugs. Reality is, new hurdles create new solutions. So instead of free range chickens, we have 5 story tall condos, with birds running about on wire floors, still, never seeing the natural sun. It took me several trips by one of Iowas massive chicken operations. I saw the 5 story building, but had to ask what it was used for. Simple, cage free eggs...sold at a premium.
I fear, food shortages are in our very near future. Precisely because good intentions will manifest unintended consequences.
"There’s a term for that: magical thinking."
So if I have a moral objection to buying clothes made with slave labor, I'm just a fuzzy headed ninny in your book?
The first story I read on this said that CA doesn’t have any pig farms. Which means this law is wholly about coercing other states. CA has a right to regulate the safety of food sold in its stores,
So nobody sees the connection between strict regulations concerning pig farming, and the lack of pig farms? Also, it takes lots of corn to farm pigs, Iowa has lots of corn, AND Pigs. Iowa number ONE in egg production also. The Breakfast State! Whats the difference between, involved and committed? A chicken is involved in breakfast...A pig is committed to breakfast.
So if I have a moral objection to buying clothes...
The difference is consumer choice, vs Govt regulation. A person has a moral compass. Our Constitutional Republic, does not. Can I use my moral compass on hiring a firing?
And so, the chokehold tightens.
New laws are coming into play January 2023 for organic dairies. Same force/control methods of coercion from “those who can’t: teach”- onto “those who can: do” know wtf they’re doing. Meanwhile, inflation and greed are causing outrageous economical losses on the ones who “do”.
I’m just glad Nancy and Joe (our 2spotted pigs)(both female, remember?) are gaining weight by the day. They’re spoiled, huge and will be ready in December for the freezer. Nancy is still a smidge larger than Joe- but since they’re both pigs- it’s a small difference.
Ann Althouse said...So if I have a moral objection to buying clothes made with slave labor, I'm just a fuzzy headed ninny in your book?
No. You have a right to use any standard you want in deciding who to give your money to, but if you think the clothes themselves are different because they were made with slave labor, then, yes, you are just a fuzzy headed ninny.
note that California is NOT saying that pork (or coffee) must be labeled with state of origin.
They are saying that Californians NOT be Allowed to buy these things.
They don't ask for a label, because they know MOST Californians don't care.
They aren't just forcing their views on iowa, they're forcing their views on california
The solution of relying on Congress to act if a State goes too far isn't really practical even if the structural answer. Congress doesn't act (pin intended). It would be up to some bureaucrats to do something, or not do something.
But as a practical matter, the bureaucrats wouldn't simply preempt the overreaching State. They'd adopt some overarching regulatory scheme that in all likelihood would impose even more regulation on farmers - but better ones, trust them, 'cause bureaucrats are making theur decisions using their expertise.
Unfortunately, that's how our political system filters human nature and the pull-push of the desire and use of power, when there's a feeling that something simply MUST be done whenever enough of the right someones think they know better.
Not sure the courts should seek to insert themselves into that dynamic a dormant commerce clause that theoretically sounds good but doesn't have a clear limiting factor. But then they're likely to step into legislating among the 9 of them.
The court needs to recognize their own limits here - call it a dormant practicality clause.
Ann Althouse said...
"There's an idea that the morality of the production method is in the product, and the state can ban the sale of a meat produced through cruel conditions just the way it can ban a product with a toxic ingredient."
Cruel animal husbandry and toxic ingredients are two different sorts of things. I don't think it's a fair comparison, though recently the removal of consumer products for minuscule trace amounts of offending components has become more of a thing. The rub is in defining 'cruel' and 'toxic.' When the definitions are changed at a whim, or without factual basis, any restriction of trade is permissible. It's a way of getting to a goal that may have nothing to do with the stated purpose.
I guess I am generally in favor of the California law in principle, but agree it's clearly in violation of our federal Republican.
Modern factory meat is truly horrific. The sounds and smells at a pork kill plant that renders inhouse is soul shaking.
That says d, I roasted a rack of St Louis style pork ribs last night that were on sale for $3.99/lb. I make a wet rub of Frank's hot sauce, salt, crystalized garlic, parsley and pumpkin spice. Heavenly.
and the state can ban the sale of a meat produced through cruel conditions
And PETA smiles
If using farrowing crates is cruel, the slaughter is exactly what? This propaganda has been going on for more the half a century. In that time, almost no one knows a farmer or knows a person that knows a farmer. City folk have lost all connection to their food. That is a dangerous level of ignorance.
See Sri Lanka for the modern day outcomes. Also the Netherlands are severely limiting the use of Nitrogen. A one to one relationship to amount of food produced.
State laws requiring cage free eggs raise the price at a time when prices are already soaring for food and everything else. There's an upside:
The eggs from these chickens also have lower levels of chemical residue from insecticides and a lower concentration of dioxin-like contaminants, as well as fewer insect infestations.
And a downside: free range chickens get diseases from other birds and have to be destroyed, thus further raising prices on chickens and eggs.
I can't seriously see red states banning goods made by union labor (save possibly as a retaliatory measure to a blue state ban on goods made in the red states), but justices are paid to ask questions that envision possible futures that seem absurd to us today (and then go ahead and do what they want).
Pork or pig? Fetus or baby? We live in mysterious times.
California is a sanctuary state for immigration reform (e.g. labor without borders), environmentalism/Green energy, transgender conversion therapy (e.g. grooming), casting couches/sex positivity, taking a knee and... uh, pledging fealty, and performance of human rites for social, redistributive, clinical, and fair weather causes.
Speaking of cage free chickens, they still go into cage for transport to the slaughterhouse.
Ever see a chicken roundup? Hint, it's a pretty cool machine. Unless you are a chicken.
https://youtu.be/ecV-pBmWwhk
Stop fascism vote republican Henry
Archery season commenced two weeks ago in Pa. I have two in the freezer. I purchased 1/2 pig (net 120#) also in the freezer. The Angus I purchased last year has bore a calf, which will meet it's demise next summer. It's no secret as to what's coming.
California already has numerous laws in place that affect what manufactured goods can be imported into the state, or, failing to meet the California restrictions, have to be labeled as not meeting such and such CA law.
In many cases, those California restrictions become industry standards (such as CA-117 for upholstered furniture or cushions). I'm not sure that these things help. But they do drive up the cost of manufacturing, and hence, the price of the end product. And they do require manufacturers to comply because of the size of the market that California represents. Or used to.
But...since California has gone off the deep end, it would be self-destructive to the rest of the nation to take their quirks and aggressive attacks disguised as safety or ecological standards and make those industry standards. We would be better off in the pork instance, to stop sending the product directly to California. Send it to Mexico and the Californians can buy from Mexico. Or just put it into the backpacks of those walking in from Mexico and sell it on the streets like everything else.
Or ship it to Canada and California can work out something with Canada. Or just stop selling it to California and find other markets- of which there would be many. And Californians can continue on their slide into the dark ages. (those in Silicon Valley would still import pounds of pork for their own personal use.)
To allow Gavin Newsom to take on governing the rest of the country from his hill above the Napa Valley would be insane and the end of all of us. Let CA buy their pork from China (who buys it from us).
Saying 'Congress needs to act to stop this' is simply an invitation to have a Congress that is already pretty supine simply roll over and let various radical states create national regulations in the same way they've outsourced the vast majority of regulation to the Deep State bureaucrats.
To quote the eminent philosophers Rush, "If you choose not to decide, you still have made a choice." Congress has not created national standards for pork production, and no, California can't do it either. They do not have the power, per the Constitution's Interstate Commerce clause.
If California wants to create "California Certified Cruelty-Free Pork" they can knock themselves out but I don't see how they can ban pork raised under applicable state and Federal regulations, and butchered under applicable state and Federal regulations from entering their borders without a significantly better reason that simply "we don't like it."
I’ve repeatedly told OPPD that it shouldn’t be building solar developments in Nebraska because the solar panels are made by slaves. They don’t care.
How about no? Isn't no an answer? California has already forced car makers to build tiny shitboxes to meet their CAFE standards, standards that even the government's own NHTSA says will kill 3,000 more people per year.
Mass produced pig farms are beyond cruel. Horrifically cruel.
It's too bad we only selfishly think of ourselves and not the welfare of the pigs.
iowan2 said..."'So if I have a moral objection to buying clothes...' The difference is consumer choice, vs Govt regulation. A person has a moral compass. Our Constitutional Republic, does not. Can I use my moral compass on hiring a firing?"
Well, now you're changing the subject -- and without acknowledging that you are changing the subject. That's super-confusing, and this is a complicated area.
I wrote "There's an idea that the morality of the production method is in the product." And tim maguire responded to that with: "There’s a term for that: magical thinking." I challenged him by saying: "So if I have a moral objection to buying clothes made with slave labor, I'm just a fuzzy headed ninny in your book?"
Now, you iowan2, want to talk about the age-old question whether government should legislate about morality. That is a different question, and it's no one I said anything about. You ought to first say whether you agree with the idea — which I merely described and didn't say I agreed with — that the morality of the production method is in the product. Or just say, whether it is or it isn't doesn't matter to this other question that I want to swap in
You're making it look like you're jousting with me, but you are not. You're not addressing the idea I described, and you are changing the inquiry. The new inquiry you raise is a familiar question in constitutional law and political theory, and it matters in the question raised in the case the post is about, because we see California taking a strong moral position and imposing it on pork producers who don't get to participate in the democratic process that is affecting them.
What if California only tried to regulate intrastate pork producers, solely on the basis of morality? Then the federalism problem is removed and there's just a question whether law can be based on morality (though I'm imposing an unrealistic factor, that it would be solely morality, when really the state would assert health reasons).
Can WIsconsin do this county by county? The cultural difference between Waukesha and Dane (Madison) counties is as stark as CA vs FL.
I’d be all for reducing trade and any interaction with Dane County. It’s a cultural curse on WI as CA is to the US.
How about WI red counties refuse to export cheese, beer, food and any other products to Dane County that are not produced via their fucked up, hypocritical standards? How about red counties refuse entry and service to pro-infanticide Dane county residents?
They’re already cutting red county white boy access to UW.
What does Dane County export except waste of money bullshit, like a UW college degree and Sate government pork?
Let’s make that deal.
This creates opportunities as well.
A business could market itself as an Anti-California Nonsense Business, publicly celebrating that the product is not sold in California or states with similar laws because it would force us to unnecessarily raise our price to our other customers. We'll get along without 'em.
I would certainly patronize such a company.
Labor arbitrage and actual slavery. We live in an ethical world. It's over.
The first story I read on this said that CA doesn’t have any pig farms.
Of course California has pig farms. As evidence I proffer that:
1. I live in (far northern) California; and
2. I drive by what is obviously a pig farm nearly every day.
Democracy as flawed as it is and markets will work out matters like this. We don't need the unelected Supreme Court sorting out which laws are silly and which they approve of.
It seems to me that if a state can't detect whether its specific requirement has been met by examining only the finished good, then that requirement is an unnecessary burden on interstate commerce. It should not be up to the state to determine whether a product is Kosher, it should be up to the consumer (or the consumer's representative).
California did this for foie gras. The net effect was to chase related farms out of the state and cause people who eat fois gras to rely on mail order.
What is the principle at play in California? It’s moral to kill babies in the womb but not to raise farm animals in a way that offends city folk? Is California really setting a higher standard of treatment for other species than for our own species?
Althouse mentions not buying clothes made from slave labor. Nobody wants slave labor. What’s the difference between slave labor and $1 dollar a day labor where ALL our clothes are made? The $1 dollar? Or the 50 cents? Anybody think Ralph Lauren used union labor? Shit, Apple had to put catch nets on a building in China so workers wouldn’t jump off the roof.
Does anyone believe rich liberals in places like CA and Madison, WI don’t purchase and wear clothes produced by foreign impoverished workers? What are you going to do, run around naked? You think the components of your smart phone are made by people drinking lattes? I’m sure David Brooks is hard at work.
Speaking of slave labor. How about all those unpaid UW Football players that generate millions for the University or the TA’s that teach classes and grade papers at UW so the tenured don’t have to. How about all the interns that colleges farm out and businesses “hire”. They don’t get paid either. AND...many of these students are driven into massive debt paying outrageous fees to the company store.
Where’s the line?
the way it can ban a product with a toxic ingredient.
We live in a time where everything has become “toxic”.
Where does that leave us?
I suggest solving this by putting the pigs in charge of everything. What could go wrong?
I'm not sure why producers don't just stop selling in California. Sure, big market, blah, blah, blah. But if it's unprofitable it's unprofitable.
“So if I have a moral objection to buying clothes made with slave labor, I'm just a fuzzy headed ninny in your book?”
It is a matter of labeling is it not? Otherwise how does one find out if slave labor or immoral hog rearing is involved? Does the state or the human decide?
Gusty Winds @ 8:25: “…Where’s the line?”
Exactly. Law is about bright lines because it uses (the threat of) affirmative violence to enforce the line. People don’t like blurry lines if they get fined or jailed by the State for getting them wrong.
Morality is the opposite: personal choices enforced not by the State but by giving or withdrawing personal support or custom. It is inherently blurry because my moral concerns and priorities are different from yours. I may care about animal cruelty more than you, and feel the need to study every trace of “cruelty” associated with every input into everything I might buy and every person with whom I interact. Likewise you and I will differ in our tolerance or taste for things made with “slave labor” (or at a non-union shop; or by a company without a “diverse” board of directors; etc etc). If we are able to inform ourselves and choose in the market, that is empowering to us or at least not as destructive of the marketplace as trying to outlaw the stuff you dislike or that I reject. If instead of choice we have to impose a regulation that is replete with these moral considerations, we will always have this fight. Because each of us will want OUR morality to control. And there is nothing more pleasant than forcing everyone to adhere to your high moral standard. See C.S. Lewis’ famous remark.
Short version: law should be used sparingly and not as a substitute for moral choices. Do not outsource your ethical tangles to the damn gubmint.
"They’re already cutting red county white boy access to UW."
Please show evidence for this claim.
Also, note that the decisions of Scott Walker's hand picked regents cannot be laid on Dane County or leftist University professors.
This reminds me of the arguments for and against using scientific data obtained from Nazi medical experiments. Pro, con? Ethical, unethical? Use, ignore?
This reminds me of the arguments for and against using scientific data obtained from Nazi medical experiments. Pro, con? Ethical, unethical? Use, ignore?
I see a lucrative black market opportunity here, an underground economy fueled by illicit bacon and pork sausage dressed up to look like vegan patties. Forget human trafficking and meth labs hidden away in the back woods or run-down houses in bad neighborhoods, we'll have truck loads of illegal pigs being smuggled in and raised in boarded up back yards, oh that's not a pig squealing officer, that was just me making love to my girlfriend.
California has done so well legalizing and regulating the cannabis market, I'm sure its efforts here will be as equally successful.
Then the federalism problem is removed and there's just a question whether law can be based on morality
History tells us yes. See the 18th Amendment.
Mass produced pig farms are beyond cruel. Horrifically cruel.
More cruel than being disemboweled by a wolf and eaten alive?
It's too bad we only selfishly think of ourselves and not the welfare of the pigs.
Why do we have an obligation that no other animal has?
Bacon.
You were all thinking it.
More bacon for me.
Ann's analogy is useful to examine. The slave labor question was settled by a constitutional amendment. Trying to deal with slavery on a state-by-state basis led to the Civil War.
I suggest solving this by putting the pigs in charge of everything. What could go wrong?
"The creatures outside looked from pig to man, and from man to pig, and from pig to man again; but already it was impossible to say which was which."
-- Animal Farm
I think Congress clearly has the power to over-ride California's regulations on the sale of pork products inside California's borders.
I think California's regulation is stupid, but not unconstitutional on its face. I want to see their voters reaction when bacon isn't available for anything under $100/pound.
And Cappy at 8:40 AM wins the thread.
"the Commerce Clause, after all, is in Article I, which would allow Congress to resolve any of these questions"
But does that compel a particular outcome?
Cappy @ 8:40: .”…putting the pigs in charge of everything.”
Threadwinner!
This makes little sense to me. Pig farmers who don’t want to use California’s method should stop selling food in California. If the California market is still attractive then some farmers will make special confinement buildings on special farms to sell in California and charge higher prices for the food. This should be ok with everyone. I don’t think that California itself is a big pork producer.
The same thing was said about special enviro cars for California but the auto industry objected due to separate engineering costs. I thought that California can ask for anything they want as long as they are willing to pay all the extra cost for it, including the fixed cost of product development.
Umm....we are eating the pigs. Does it really matter in the end if we're "cruel" getting them to our mouths?
Yes, Congress can resolve just about any case like this. But there's also a hundred years of Dormant Commerce Clause case law where the Court has done so as well, and under those precedents, California's law is almost certainly unconstitutional. Gorsuch will have to chop away a lot of established doctrine to allow this law to stand.
We spent an absurd amount of time on those cases in law school. I have a vague recollection of some state like Illinois passing a law saying that only trucks with a certain variety of mudflaps could transport goods through their state, and the Court slapping that down.
"So if I have a moral objection to buying clothes made with slave labor, I'm just a fuzzy headed ninny in your book?"
How much do you think they pay pigs to make bacon?
The theory of the Dormant Commerce Clause line of cases is that by giving Congress the power to regulate interstate commerce, the Constitution largely meant to preempt the states from doing so. State laws that burden the flow of goods across state lines are thus constitutionally suspect.
Ha, ha, Pig, Porky Pig, Mr. Loony Toons.
"The Golden State represents a massive market, typically about 13 percent of American pork consumption, but only a tiny portion of that meat is produced within its borders — industry groups told the court that California imports more than 99 percent of the pork it uses."
Let Californians eat Bill Gates' mystery meat and bugs.
Let's take a gander at the real world.
There is a market imperative here that will impact real life. Some pork producers will stop selling in CA. Some pork producers will change their methods and continue to sell in CA at premium prices. A black market for non-conforming pork will develop, although there will be a risk premium. There will be fewer legal choices for Californians.
Net result in all cases: Californians are poorer, even with a black market. And of course, the poorest will be hardest hit.
Back when we had a functioning Congress, they would legislate regarding interstate commerce. Now that we have a perpetual emergency (see Atlas Shrugged), maybe there can be an executive order--one more thing that Team Biden will screw up.
Ann Althouse said...
"There’s a term for that: magical thinking."
So if I have a moral objection to buying clothes made with slave labor, I'm just a fuzzy headed ninny in your book?
*********
Offhand, I'd say that "you" are not the State imposing "morality" on "everyone", whether they agree or not.
Observant Jews don't eat pork---but they don't prevent others from dong so.
Suppose CA decides that eating meat is immoral. What then?
@ 7:59
You need to define specifically what is cruel. Because I don't see it.
California successfully regulated the entire auto industry so of course they will “progress” to trying to regulate everything everyone does. That’s what the progressive bureaucratic leviathan does. It never stops. It never slows down. That self-reinforcing ratcheting effect is the main reason for conservative opposition to “big government.” The bigger the State the smaller the Citizen becomes. Our government no longer even pretends to respect our citizens. That’s the gist of Tulsi’s exit statement. But it’s not just Democrats. It’s the big state the deep state the congressional military industrial FUBARplex.
Oh and God bless Gorsuch! Thank God for the genius who put him on the Supreme Court.
Why can’t all the impacted states ban any product produced in California to be sold in their state. Let’s cut out the moral preening and call this what it is - a battle being waged by socialists who want to control the means of production by any means necessary.
We need to get back to basics. There is a reason why we are currently living under the Constitution and not the Articles Of Confederation. The Constitution was implemented for various reasons among them creating a national market and a customs union.
This is why we have a commerce clause and this is why Congress has the power to regulate interstate commerce. It's time for Congress to clarify this by legislating that any good or service that is legal at the federal level cannot be prohibited by a state and any good or service that is both legal at the federal level and at least one state cannot be prohibited by another state. The purpose of the commerce clause is just that. No need for morality or other reasons. National commerce is the point of the commerce clause.
Every time I see "Commerce Clause" I think of Gibbs v. Ogden (or to me the Fulton Steam Ship case). In that case the Court made clear the Founders' intent that states could not be allowed to interfere with interstate commerce. I had no idea that the Commerce Clause had become "dormant". Who voted for that? My observation has been that Congress has often tried to stretch the Commerce Clause to things it had no business legislating about. Now we have a reversal with a state trying to do the same thing that was so troublesome under the Articles of Confederation. ( For some reason I keep thinking that Rhode Island was a particular sinner at that time.) I think it will be very healthy to have the Commerce Clause resurrected - maybe it can be used to regulate the G. D. social media world.
Every time I see "Commerce Clause" I think of Gibbs v. Ogden (or to me the Fulton Steam Ship case). In that case the Court made clear the Founders' intent that states could not be allowed to interfere with interstate commerce. I had no idea that the Commerce Clause had become "dormant". Who voted for that? My observation has been that Congress has often tried to stretch the Commerce Clause to things it had no business legislating about. Now we have a reversal with a state trying to do the same thing that was so troublesome under the Articles of Confederation. ( For some reason I keep thinking that Rhode Island was a particular sinner at that time.) I think it will be very healthy to have the Commerce Clause resurrected - maybe it can be used to regulate the G. D. social media world.
original Mike said...
I'm not sure why producers don't just stop selling in California.
=======
let cártel smuggle cerdo into CA
My modest proposal: Let Californians harvest, sell and eat native Long Pig starting with all state-level officials.
original Mike said...
I'm not sure why producers don't just stop selling in California.
1: Because it's 13% of the total US market
2: Because producers dont' sell to CA, they sell to middlemen who sell to the entire US, including CA
The middlemen (like Costco, for example) don't want to have to segregate "CA pork" vs "non-CA pork", don't want to face the risk of massive fines if some of the "non-CA pork" ends up in CA, and there let it be known that if those rules went into effect, they'd just stop buying any "non-CA pork"
Finally, it doesn't matter. CA has no fucking business sending its "health and safety inspectors" to other States, telling people in those States what they have to do.
So the proper response is "you can take your emotions and feelings, and shove them up your asses. If you dont' want to feel bad about the poor sows, then dont' buy any pork. Otherwise just fuck off and die."
The US Constitution grants to Congress and the Federal Gov't the sole power to regulate interstate commerce. It requires all States to grant "full faith and credit" to the actions of all other States.
This should be a 9-0 ruling nuking the CA law.
If one State has some sort of parasites in its wood / food, and bringing untreated wood / food from that State into your State could cause the spread of a parasite with no natural predators, then it would be entirely reasonable for a State to say "products from X must be treated with Y before brought into our State, to deal with Z."
But your feelings and emotions do not and should not matter, and most certainly do not provide the basis for a law banning another State's products.
Ann Althouse said...
There's an idea that the morality of the production method is in the product, and the state can ban the sale of a meat produced through cruel conditions just the way it can ban a product with a toxic ingredient.
It's important to remember that Congress could pass a law preempting state laws that go too far. That's one way to understand the federalism — it's left to Congress to make the call, and the courts don't try to enforce federalism but let the states do what they want.
Wilbur said...
If you don't like California's commercial law, then you need to persuade Congress to pass a law preemptively regulating this area. Not an easy thing to do.
Congress never passed a law banning term limits, but SCOTUS found that the "dormant elections qualifications clause" meant States couldn't regulate the matter further.
The US Constitution says absolutely nothing about abortion, or same sex "marriage", but in Roe and Lawrence SCOTUS struck down State laws on those topics.
Pork producers have the right to raise their pork in accordance with their State's laws. CA does not have the power granted to it to violate that right.
But if what you two want comes true, then the money paid to a union is certainly "part of the product", and therefore Texas can ban all goods produced in a "closed shop" State.
Heck, the blood of the innocents stains every product created in a State with abortion legal after week X. So Texas, Florida, and the rest of the South can clearly ban the importation of any product made in a State where abortion is legal that late.
Which is to say, if you get your way, then you can kiss "interstate commerce" goodbye.
I'm all for balkanization, bring it on. We need parallel systems anyway. Parallel media, banking, transaction portals, energy, education, everything.
Ann Althouse said...
So if I have a moral objection to buying clothes made with slave labor, I'm just a fuzzy headed ninny in your book?
1: If you see a moral equivalence between "mistreating" pigs and mistreating humans, you have a serious deficit in moral judgment
2: Which US States are using "lsave labor"? The ones that don't let people be forced into unions, or the ones that force all workers to give some of their pay to a scumbag left wing union?
3: If this is an international issue, then attempting to get a State law passed banning imports from China would pretty much be guaranteed to be struck down on grounds that US States can't make their own foreign policy
4: The US Congress, OTOH, CAN impose such a ban
5: If you want to set up a "good porker seal of approval" program, or a "no slave labor seal of approval" program, where putting the "seal of approval" on the product is voluntary, and deciding whether or not to buy the products with the "seal" is also voluntary, then go for it!
It's the part where the State pulls out its guns and sticks them to people's heads, saying "you're not allowed to buy that product for another US State, because we dont' like the way they made it" that it becomes an issue, and a bad idea
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