Search the Lounge


« J. Gordon Hylton (1952-2018) | Main | Today is the 160th Anniversary of the Oberlin-Wellington Rescue »

September 13, 2018


Feed You can follow this conversation by subscribing to the comment feed for this post.


Wow. The partisan stuff at the end is really galling.

This argument is interesting, when one strips away the partisan ranting.

California should have its own regulations, which clearly burden interstate commerce, because it "just doesn't respect" the choices of the toothless hillbilly rednecks in "red and purple states" who favor torturing chickens, right? So thrilling!

You state: "In fact, a ruling against California would undermine its sovereignty by limiting its political power to address local harms." That is the issue. Does the sale of safe eggs from Missouri's chickens in California constitute a "local harm" that California can regulate by banning the sale of eggs from Missouri? Is this consistent with a national economy? Do the California regulations discriminate legitimately in favor of California producers at the expense of out-of-state producers (who fail to comply with California's apparent view that it should govern the nation's farmers and indeed, the national economy)? Does the federal Egg Products Inspection Act control here?

Why not just argue the merits, Jeff? If you really believe that folks who live on California's coastline are morally superior to all of those rednecks in the mid west and those other states you label so pejoratively, then just say so.

Please don't dress up your holier than thou attitude in the clothes of a legal issue, however, unless you are prepared to actually address the issue. You have really not even started to address the real issues in the case in any meaningful way. Your analysis about whether the people of a state must "respect" the laws of other states, with respect to state regulation of interstate commerce, is really so poisoned by the political spin you have put on it that you have entirely missed the actual legal issues in the case, including standing.


To be clear, my article does not discuss partisan politics. I raised that in the post because I think it is always interesting when "liberal" or "conservative" legal ideas dictate conclusions that diverge from Democratic and Republic political positions. Judges aren't umpires calling balls and strikes. Because the legal rules from the binding SCOTUS precedent could support either position, non-doctrinal considerations will influence the Court. Those non-doctrinal things include broader constitutional commitments, methods of interpretation, morality, and yes, partisan politics.

But perhaps you meant that I shouldn't assume that Democrats support the California law and Republicans oppose it. Of course not all Denmocrats support the law and not all Republicans oppose it. However, to the extent there is a partisan divide, I think it is hard to argue with what I said. Another blue state, Massachusetts, passed a very similar law. Republicans generally are less supportive of regulations and Democrats are typically more concerned about animal rights. If I am wrong, however, please let me know. I think it would very interesting if Democrats were more opposed to the law on a policy level than Republicans. By the way, this case also has huge implications for California's global warming legislation, and it hard to argue about the partisan nature of that issue.

I said nothing pejorative in the post, and I made no moral judgment. I am not sure why you are assuming that I think California is morally superior here. I simply made the common sense point that federalism is meant to allow the states to disagree with each other as a matter of policy. If that isn't true, then state sovereignty is meaningless.

My arguments on the merits are in the article. As I said in the post, the post only addresses policy concerns. I might follow up later with comments on the merits if there is interest. However, my article discusses only the extraterritoriality issue. The discrimination point is a separate Dormant Commerce Clause argument, and the preemption point is obviously different as well. Like I said, this is a complex case.



I respectfully disagree with your take on the partisan divide. You seem to think that typically Republicans favor "state's rights" (and thus hypocritically oppose the California regulation) but Democrats favor "animal rights."

This is a "dog whistle" to the tired old "state's rights" accusation against Republicans (which is, in its own way, so ironic, given Lincoln's party affiliation). In fact, it is "liberals" who favor, for example, "sanctuary states" - signaling that it is they who believe that "state's rights" should trump a traditionally national policy (after arguing so vociferously just a few years ago that Arizona could not impede federal policy).

Here, again, if you wish to characterize California as "blue state" (it is) it is the "progressives" who are arguing "state's rights" should trump the interstate commerce clause.

So, if you want to engage in a partisan battle about every last bit of commerce policy, and label opponents of whatever you favor (here, animal rights) as "red" or "purple" at least don't misstate the facts about who supports "state's rights" here.

You say, correctly, that the issue here "the extraterritoriality principle [which] is meant to preserve federalism by ensuring that the states do not exceed their sphere of sovereign power." Correct. The issues include whether California's rule impermissibly burdens interstate commerce.

Your argument: "When California bans the in-state sale of eggs produced in Missouri because the use of battery cages is cruel rather than because the eggs are inferior, California is not limiting the police power of Missouri. Instead, California is refusing to give equal respect to the laws of Missouri by essentially proclaiming that Missouri law is unfit for Californians." is probably correct.

But, this has nothing to do with the law.


I should say "applicable" law.

If "Republicans" prefer national regulation of the economy and not state regulation that burdens interstate commerce, I'm not sure your point about "Republican" opposition to a particular state regulation is well-taken.

Also, you will need to go back to the Constitution itself to discover the grant of power to Congress to regulate interstate commerce and the reasons for that grant. This has nothing to do with "progressives" - who have traditionally tended to wish to bend the Constitutional mandates as they choose (see, e.g., Wilson).

If we were to generalize, perhaps we could say that to be a "progressive" means that you prefer your own preferences to legal principles, and often claim the right to control the conduct of others based on your purported "empathy" for the "people" (and "animals"), and superior morality.

In the view of some, the conduct of chicken farmers in Missouri is not permitted because the law permits it. The conduct of everyone in a free society is permitted, unless legitimately restricted or prohibited by law. In a national economy, the question is to what extent each state can impose barriers on interstate commerce based on its preferences and sensibilities.

Perhaps "progressives" believe otherwise, and that their value choices trump the law. If you are looking for a partisan divide, perhaps there you have it. IMHO, a pov that eschews legal analysis and instead relies on labeling, dividing the issues by team affiliation and ignoring the law is not particularly helpful in these trying times.


Anon, thanks for the response. I am also trying to point out the potential role reversal here. In recent history, conservative judges have generally supported state sovereignty (think Lopez, Sebelius, Shelby County, etc.) and liberal judges have said that national power should trump states's rights (see the dissents in those cases and many more). In this case, however, it is Democrats who are invoking state sovereignty and conservatives who are calling for national power and uniformity. I was simply saying that it should be interesting to see if this role reversal materializes in the Supreme Court.

I completely agree that this would not be the first role reversal. I have written quite a bit on antislavery use of state sovereignty and federalism to block proslavery federal policy. Federalism is a system of government that allows a national minority that has a majority in a locality to block federal policy. It becomes partisan only when when of the parties can take advantage of that. For example, the free labor movement dominated Wisconsin politics in the 1850s, but it couldn't take over national politics until 1860. Once that happened, Republicans were much less enthusiastic about states' rights. And today, with Republicans in power in Washington, Democrats are making state sovereignty arguments.


Well, I agree that the parties tend to argue based on their overall stances on certain issues, not principles, and not consistently at that.

That is the reason it is in my view destructive to the fabric of our legal system and to understanding the law and promoting integrity in judging based on principled terms to cast every issue as a "republican" v. "democrat" contest (especially if the tone is to portray political and policy disagreements as a contest between wrong and right on issues that don't necessarily lend themselves to such easy partisan analysis when subjected to a principled legal analysis).

You cite Sebelius as an example of "conservative judges have generally supported state sovereignty." I'm not sure what you mean.

Are you referring to NFIB v. Sebelius? If so, two major aspects of the case: 1.) there weren't five votes to say that the Commerce Clause permitted the individual mandate, 2.) Roberts provided the deciding vote on the tax question (after holding the mandate a penalty for purposes of the APA). What is your point, again, about "conservative" judges? That they were in favor of state sovereignty because the four who voted against the mandate on both questions (commerce clause and tax) favored state regulation of insurance?

Or, was the reason because, as they wrote, they favored giving some meaning to the Commerce Clause? Lopez? What about Gonzales v. Raich (Scalia concurring)?

Shelby County is an entirely different issue. As recently pointed out in the hearings last week, most "progressives" have totally misread the case. It is the fault of Congress for not updating the coverage formula, not the court, if there is blame to be assigned.

As for "Federalism is a system of government that allows a national minority that has a majority in a locality to block federal policy." I can only say you've got me there because I don't understand what you mean.

This sentence seems to me to be legally irrelevant and factually inaccurate. Federalism is an allocation of powers between the federal and state governments: A federal majority can overcome the law of a state jurisdiction if the supremacy clause applies -- in cases such as Commerce Clause cases and other cases where local rules may be preempted. See e.g., Gonzales v. Oregon (two "republican" justices, four "democrats").

In sum, I think we agree that partisan politics is a poor metric to measure the validity of legal opinions purportedly based on precedent and consistent, principle analysis.

Shouldn't we be focused on advocating for that standard, rather than reducing everything to "Californian's need not respect the will of evil republicans to torture chickens"?

Kevin Dreslinski

This takes me back to the 1999 case of Wincel's Freedom vs 'Scissor Fight'. Still a very contentious debate to this day.

The comments to this entry are closed.


  • StatCounter
Blog powered by Typepad