Can a state regulate conduct outside its borders for moral reasons? Supreme Court faces question in Calif. pork case

Pigs in tight quarters (Photo by Jordan Gale, Reuters)

On Tuesday, the U.S. Supreme Court weighed the constitutionality of a California law that could affect pork producers in the rest of the country. A 2018 California ballot measure, approved by over 60% of voters, required that all pork sold in the state "come from breeding pigs housed in spaces that allow them to move around freely," reports Adam Liptak for The New York Times. But since the state consumes 13% of pork produced in other states while producing almost no pork of its own, the court has been pushed to consider a larger question: Can a state regulate conduct outside its borders?

In oral arguments, the attorney for the National Pork Producers Council maintained that California "could not impose a state law that principally affects what happens in other states," reports Nina Totenberg of NPR. The attorney said the law's main impact would be on "the state where the business is located," noting that Iowa has 65,000 sow farms.  

Justices peppered both sides with questions. One notable back-and-forth came when Justice Elena Kagan asked a federal attorney, arguing for pork producers, if it would have been "impermissible for a state to have said, we’re not going to traffic in products that have been produced by slavery?" The attorney said, "I think the logic of our position would say yes." Justice Neil M. Gorsuch wondered if the issue was better suited for Congress under the Constitution's commerce clause. Kagan also observed that such laws could be weaponized by states trying to get back at one another. 

"We live in a divided country, and the Balkanization that the framers were concerned about is surely present today," Kagan said. She added: "Do we want to live in a world where we’re constantly at each other’s throats and, you know, Texas is at war with California and California at war with Texas?"