The egg and the Commerce Clause

California’s Chicken Law and the Commerce Clause

By Blake Hurst

The country is awash in legislative efforts to increase regulation of agriculture, but only California has had the chutzpah to impose the preferences of that state’s voters on the rest of the country.

In early December, Missouri’s Attorney General Chris Koster told a gathering of farmers that he would soon file suit against the state of California. Recent legislation passed in California limiting out-of-state egg imports has affronted Koster’s conception of the Constitution’s Commerce Clause; he’s headed to court, much to the delight of the Missouri farmers in his audience.

To envision a bunch of farmers sitting around hashing out the Commerce Clause is somewhat mind-boggling. Farmers are forced to be competent in a lot of fields—pun fully intended—but expertise in the most thorny and controversial parts of the Constitution would hardly seem to be a requirement for the folks who tend America’s fields and raise our livestock. On the other hand, farmers know about as much about the Commerce Clause as California legislators do about raising chickens, but that didn’t stop the West Coast solons from weighing in on animal husbandry.

Californian voters approved a ballot measure in 2008 requiring California egg producers to provide additional room in chicken coops for egg-laying hens. The ballot initiative, according to research done by the University of California at Davis, will increase the costs of egg production in the state by 20 percent, putting out-of-state egg producers at a large competitive advantage. In order to protect California farmers, the state legislature passed a law requiring all eggs sold in California to be from chickens with coops big enough to meet the requirements set by the 2008 initiative. Out-of-state egg producers will either be unable to send eggs to California, or they will have to make large capital investments in order to supply part of the 180 million dozen eggs California annually imports from the rest of the country.

The Commerce Clause says that Congress shall have the power “to regulate Commerce with foreign Nations, and among the several States, and with the Indian tribes.” Most related litigation has involved what is called the dormant Commerce Clause, which the courts have inferred from the text of the Constitution. Quoting Hamilton in the Federalist Papers, the majority opinion in the Carbone case reads: “The central rationale for the rule against discrimination is to prohibit state or municipal laws whose object is local economic protectionism, laws that would excite those jealousies and retaliatory measures the Constitution was designed to prevent.” The courts have allowed for exceptions, when the state has no other way to meet “legitimate local concerns,” and when the effects on interstate commerce are “incidental.” California legislators tried to meet that exception by claiming that Californians had a public health interest in the legislation, but as the USDA’s Food Safety and Inspection Service has pointed out while discussing the different methods of raising poultry: “The agency does not know of any valid scientific information that shows that any specific type of chicken has more or less salmonella bacteria than other poultry.” Not only that, but 180 million cartons of eggs stopped at a state border by the egg patrol are hardly incidental to commerce.

To put it simply, it has been the genius of the American system that we have free trade between states. Justice Anthony Kennedy, writing in the Lopez decision, added that regulations that treat in-state and out-of-state businesses the same are still unconstitutional if they overly burden interstate commerce: “One element of our dormant Commerce Clause jurisprudence has been the principle that the States may not impose regulations that place an undue burden on interstate commerce, even where those regulations do not discriminate between in-state and out-of-state businesses.” According to Missouri’s attorney general, the law passed in California outlawing the eggs produced under the practices generally used in the rest of the United States clearly offends the Constitution.

Attorney General Koster’s suit isn’t the first reaction against California’s scrambled egg laws by Midwesterners. The Farm Bill now in conference committee in the U.S. Congress includes a provision called the King Amendment, introduced by Representative Steve King (R-Iowa), which would remind Californians about the Constitution and curtail the ability of individual states to require agriculture production practices of farmers in other states.

It’s unclear whether the King amendment will remain part of the final bill, and there is much opposition to the provision from animal rights groups and others, including columnist Kathleen Parker. According to Parker, we ought not pass the King amendment, because Congressman King is a really bad guy, it surely can’t cost that much to give chickens bigger cages, and King is a member of a “certain contingent” that “holds to a biblical view that animals don’t deserve the same treatment as humans.” King’s personal qualities really have nothing to do with whether his amendment is a good idea. As for Parker’s argument that it can’t cost that much to give chickens bigger cages, she ought to consult the California legislature. The legislature, not King, decided that the Golden State’s chicken farmers need unconstitutional protection from eggs imported into California. The King amendment makes no claims about the economics of egg farming; it just says that the Constitution requires free trade amongst the states. Finally, although a recent survey found that many people would rescue their dog before they would save a foreign tourist, the “certain contingent” that recognizes differences between animals and humans is surely still fairly large. Most of us treat an aging pet somewhat differently than we treat grandma, much to our credit, biblically or otherwise.

Nothing in the King amendment prohibits California from protecting animals in whatever way they choose. Many of the critics are complaining that the amendment interferes with a state’s right to regulate its economy, but it does nothing of the sort. The King Amendment leaves California perfectly able to punish its own citizens with higher food prices, but if the amendment passes or Missouri’s suit is successful, California’s animal care preferences will no longer be able to interfere with interstate commerce.

The country is awash in ballot initiatives and legislative efforts to increase regulation of agriculture. Maine and Connecticut have passed GMO labeling laws, although they won’t go into effect until other states in the Northeast have passed labeling laws as well. Florida has laws outlawing the most common method of pork production. Several states have outlawed small chicken coops, and states have also banned the sale of foie gras and shark fins. Only California has had the chutzpah to impose the preferences of that state’s voters on the rest of the country.

Make no mistake about it, if egg prices increase by 20 percent, people who face tight budgets at the grocery store will suffer.

We are having an extended conversation about how food in this nation should be produced, but that conversation should be allowed to play out in individual states and Congress. The California legislature has attempted to substitute the moral preening of the West Coast digestive elite for the choices that the rest of us make each time we buy conventionally produced eggs instead of readily available free range or organic eggs. As socially conscious as they may be, Californians don’t have that right. Koster and King are correct and both Congress and the courts should remind Californians of their constitutional responsibilities.