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March 13, 2014


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By your logic, if a state "consumes" more health care than it produces (i.e., but having state residents treated by out-of-state providers more than the residents treated in-state), would that also imply that the commerce clause is implicated? If so, did the majority get it wrong in the Health Care cases, at least for some state (such as New Jersey, which relies heavily on NY and PA)?

Second, the hundreds of millions of eggs that were recalled a few years ago were done so because the eggs were harvested in conditions where about 4-8 feet of chicken manure was under the hens. If that doesn't produce a breeding ground for salmonella, I'm not sure what would.

As a third matter, since Congress has not acted, isn't this something that the States can regulate?

And fourth, do you know what "free range" actually means? To help you out, it does NOT mean that the chickens that produce your eggs actually left a controlled environment and had a breath of fresh air.

Calvin Massey

1)There isn't any state law (of which I am aware) that would be an obstacle to interstate commerce in health care of the sort you posit, so the DCC is not an issue.
2)I'm sure that 4-8 feet of manure under the cages promotes all sorts of disease, but the California law doesn't address anything that goes on outside of the cages. It only addresses the cages. I suppose disease would be just as likely if there were 4 to 8 feet of manure under the California mandated cages. In any case, though not at issue in the current litigation, I don't think anybody with good sense would condone the conditions you describe.
3) Because Congress has not acted, the commerce clause in its negative, or dormant, phase operates to void state regulations that discriminate against interstate commerce without adequate justification and state regulations that have a more than incidental impact on interstate commerce and that impose burdens on IC that are clearly excessive in relation to the local benefits.
4)I have no idea what free range may mean in practice, but the term implies considerable freedom of movement for the hens. If it means that they are treated no differently than hens in battery cages it is false and misleading advertising.

Michael Teter

I thought states were supposed to be the laboratories of democracy, especially for those lovers of federalism. In any event, your dormant commerce clause analysis does not convince me.

First, the text of the law provides a non-protectionist, scientifically supported explanation for the law. When the law itself (which is, of course, the only part voted on my the entire legislature, as textualists in other circumstances would remind us) provides a neutral, non-discriminatory explanation, the courts are remiss to look further (see MN v. Clover Leaf Creamery).

Second, once we get to the Pike balancing test for non-discriminatory laws, it is very difficult for the party challenging a statute to show that the burdens on interstate commerce are "clearly excessive" to the putative local benefits. You may disagree with that the local benefits are significant, but, as RJ states above, that's a contested point. Further, you have demonstrated no evidence of any burden on interstate commerce. How difficult is it for egg producers to comply? Will it close the California market to egg producers? Doubtful. Absent very clear evidence of some real restraint on commerce, the Pike balancing favors the state (see United Haulers v. Oneida).

Finally, the extraterritoriality claim is nonsense. Unlike the (very few) cases in which a court has struck down a statute as extraterritorial, California's law is not mandating out-of-state compliance. It prevents only those who seek to enter the California market from doing so with eggs not produced in the required manner. In other words, the only thing being regulated are eggs sold in the state. An out-of-state farmer (or, more realistically, an out-of-state conglomerate) could continue to produce eggs in the same manner and sell those to the rest of the country, and have a special coop for eggs going to California. Maybe that will increase expenses, but that is not the standard for determining extraterritoriality, as I'm sure you know. Moreover, if your understanding of extraterritoriality were accurate, how do you explain the constitutionality of Proposition 65, requiring labeling on all California products containing known carcinogens?

Greg Sergienko

This is a small piece of a much bigger problem, domestic attempts to regulate processes that happen in other states or in international areas by restricting what can be sold. I no longer teach in the area, so I'm not really up on it, but one obvious parallel in international trade law arising from US attempts to ensure that tuna sold in the US was caught in dolphin-friendly ways or at least to advise consumers about the ways in which tuna was caught. Labelling of goods containing GMO is likely to be another example. So is liability for watching child pornography, if it applies regardless of whether making the pornography was legal in the place where it was made.

Although the international decisions have not been friendly to those so attempting to regulate, it's not obvious to me that Calvin's suggested solution to the conflict is the right one, either under international trade law or under the dormant commerce clause. The Supreme Court's balancing language is suited for measuring economic issues, but I don't think it does justice to the moral dimension. Chickens might seem like a really different case from tuna, but suffering is suffering,

Kurt Lash

Were there no evidence of protectionism, I might agree with Michael. Here, there seems to be rather obvious protectionism in play and that has significant "pull" in DCC cases, regardless of statutory text (see Kassel). In this kind of case, the Court will be open to "the burdens clearly outweigh the benefits" arguments.

Michael Teter

I certainly agree that the evidence of protectionism might make this a closer case, but hardly as clear cut as Calvin and Kurt suggest.

First, courts have looked past protectionist intentions, if the law itself serves points to non-protectionist motivations (again, see Clover Leaf, but also Exxon).

More importantly, claiming protectionism is this context is a much more difficult sell for the plaintiffs than this post suggests. The protectionist claim is that California egg producers want out-of-staters to comply with the same requirements that they must abide by. That's a very odd assertion of protectionist interests. "We should be protected from abiding by the same standards as California producers!" Who's asserting a protectionist interest?

Finally, no one is suggesting that the first law was enacted with protectionist aims -- indeed, it clearly was not. Instead, health and safety and animal welfare are the obvious objectives. Somehow, though, this aim is supposed to be irrelevant in assessing the purposes of the second law, which seeks to apply that first law to a larger group of people? As Calvin says, Californians consume 5.5 billion eggs produced from out of state each year. To meet the admittedly legitimate health and safety objectives of the first law, California needed to expand its application to all eggs coming in from out of state.

Michael Herz

I don't know the background; it could be that the smell of protectionism is strong. But on its face, this seems a lot like the California law prohibiting the sale of foie gras made by force-feeding ducks, which the 9th Circuit upheld in Association des Eleveurs de Canards et d'Oies du Quebec v. Harris, 729 F.3d 937 (9th Cir. 2013).

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