The idiom “Pig in a Poke” refers to a person making a purchase sight unseen and getting something inferior to expectations. It’s assumed to come from butchers wrapping lesser cuts of meat in a sack—a “poke”—for unsuspecting customers.

This came to mind when learning about recent deliberations of the Supreme Court in a case brought on by the National Pork Producers Council (National Pork Producers Council versus Ross – (Ross is the Secretary of the California Department of Food & Agriculture.)

At stake here is the 2018 California Ballot Initiative 12 that required bigger cages for certain farm animals, including breeding pigs, veal calves and egg-laying hens on moral and health related grounds. People overwhelmingly approved the measure which prohibits sales of pork meat in CA if it was raised outside the standards set by morality and health considerations, whether inside or outside the state. (To give a sample argument: the way sows are raised now in cages in most parts of the US would be like a human spending their entire life span more or less in an air plane seat.) In effect voters decided by a large majority that the half million pigs slaughtered each day in the US should have better lives before their demises, across the country, if they wanted to be sold in CA.

Big Meat sued, arguing that since 99% of the pork sold in CA comes from outside its borders, California was essentially imposing its laws on other states in violation of the U.S. Constitution, specified in the Commerce Clause. Their argument was supported in court by the Biden Administration: it would throw “a giant wrench into the workings of the interstate market in pork.”

So what is this (dormant) Commerce Clause invoked by the pork producers?

“It is basically a principle that the court has implied from the text and the structure and the history of the Constitution that is understood to limit states ability to burden interstate commerce. So specifically, states under the dormant commerce clause are not supposed to be able to discriminate against out-of-state commerce.”(Ref.)

As an example, Oregon could not prohibit sales of goods imported from Texas that are not produced with Union labor. Texas could not prohibit sales of fruit raised and harvested by undocumented labor in California. Political standards couched in morality issues, in other words, are not legitimate to justify disruption of commerce. Goods and commerce cannot be discriminated against by one state imposing their preferred regulations on another.

Hm. How do we think about this specific case? Should the voters’ will to protect animal rights be upheld? I predict most of us would spontaneously say, of course! I don’t want to participate in animal cruelty and so I don’t want the proceeds of that being available in my state, if only to force pork breeders across the nation to improve their practices. I will not be complicit in immoral activity!

It is more complicated than that, though. (When is it not?)

If we open the door to allowing our moral considerations to impinge on other states, then the reverse is also true. Their’s can affect us. The most obvious issue is abortion as a health care right. The sales of abortion pills sent from one state to another, abortion travel to abortion providing states, criminal pursuit of abortion providers across state lines are all potentially affected by a SC ruling that would affirm the law’s constitutionality. So would be measures concerning climate change (a law preventing, for example, any sales of goods that produce pollution, on the basis that it is immoral to burden future generations with our planet’s destruction.) Or state legislation involving union busting, immigration, LGTBQ rights, gun control, you name it. Once you open the door to using immorality as a path towards prohibition, you enable all kinds of political maneuvering.

And who is to say which morals are superior? If a pork producing state says our moral imperative is to provide affordable protein to people which involves producing on the cheap (that includes tight caging,) is that preferable to the moralism concerning animal welfare? The fact is that we see ever increasing disagreements on what is and is not immoral. The culture wars have divided the country. For every Texas that allows private citizens to sue anyone who “aids or abets” an abortion after about six weeks of pregnancy there is a California that allows any citizen to sue anyone who manufactures, distributes or sells certain illegal firearms. And in fact, during the oral proceeding in last weeks SC deliberations, the justices from both sides of the political spectrum were concerned with “Balkanization” of the country, something the Constitution worries about. Is legislation really about protecting your citizens, or is the intent to force your own values on other states?

What further complicates this case is the fact that Californians voted in this ballot measure on both morality and health regulations, and we’ll never know what mattered for what proportion of the voters. Health issues could confer a real justification to ban unhealthily raised pork – we know that disease flourishes in overcrowded pig factories and the rise in zoonotic diseases under those conditions is becoming more evident. The Justices asked questions about this as well. Justice Jackson suggested that a labeling of pork not raised under desirable conditions might be a way to warn CA citizens without forbidding sales outright – after all we have all kinds of labeling that warns about health related issues already on meat and other alimentation products.

And just in case you want to consider added complexity: here is a short but interesting introduction to the issue of Ballot Initiatives (like Prop. 12 was in CA) across the country for the midterms. Ballot Measures are tools that allow voters to pass our own laws directly, often with a simple majority of votes (not in Oregon, mind you,) not surprisingly adopted dring the Progressive Era. It is direct democracy, sometimes going over the heads of the states’ legislatures like when Maine, Idaho, Missouri, Nebraska, Oklahoma and Utah voters, for example, expanded access to Medicaid via ballot measure.

Pushback ensued. These days, many states are trying to make ballot initiatives harder to pass, by changing rules of the number of signatures required, or the qualifications of those collecting signatures, and now by direct vote on restricting ballot measures themselves, almost all of them in Republican held states. Critics of (democratic)California’s penchant for direct democracy also say it has led to higher taxes and a not-in-my-backyard mind-set, exacerbating a housing crisis and driving away businesses.

A ruling on the pork case is expected next summer. It might be a pig in a poke – a win for California could open the lid of Pandora’s box: allowing the growing ideological divide between the states to regulate — and respond to — actions in other parts of the country. 

By the way, today’s photograph are from a pig farm that only cages the nursing sows when safety issues demand it. The pigs have plenty of inside and outside room to roam.

Here is Hausegger’s song about his piggy….. based on a Robert Burns poem.

What will I do gin my Hoggie die?
My joy, my pride, my Hoggie!
My only beast, I had nae mae, 
And vow but I was vogie!
The lee-lang night we watch’d the fauld, 
Me an my faithfu’ doggie;
We heard nocht but the roaring linn, 
Amang the braes sae scroggie.

PS: My computer needs maintenance – if I don’t post in the next days it’s under repair. Too many cookie crumbs…..