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Courts to decide which comes first, the chickens or the eggs

The individual mandate in the 2010 Affordable Care Act forced the courts to consider anew the limits of Congress' power to regulate the insurance market. Now, a California law governing the size of hens' cages is testing the limit of a state's power to regulate interstate food sales.

At issue is a 2010 law that bans the sale of eggs from hens kept in cages that California voters deemed too small in 2008, when they passed Proposition 2. Sponsored by the Humane Society of the United States, the ballot measure requires the state's egg-laying hens, calves raised for veal and pregnant pigs to be housed in a way that allows them to stand up, turn around and extend their limbs fully.

This week, top officials from five states -- Alabama, Iowa, Kentucky, Nebraska and Oklahoma -- joined the federal lawsuit that Missouri Atty. Gen. Chris Koster filed last month against the 2010 law, which is slated to take effect next year. The suit contends that the law violates the Constitution by improperly interfering with interstate commerce.

A spokesman for California Atty. Gen. Kamala Harris, in the Wall Street Journal, defended the measure, saying, "If this lawsuit is successful, it will limit the ability of voters in any state to enact laws they deem in their best interest."

Actually, the issue here is a law enacted by legislators, not voters. And the Supreme Court has already declared that one state's best interests don't necessarily trump those of out-of-state businesses.

Funny, but several of the key rulings in this area involve food or living creatures. A seminal one involved a 1935 dispute between New York and Vermont over milk prices, when the former passed a law barring sales of milk to New York farmers at prices higher than Vermont farmers paid. The court ruled that although states traditionally protect the health and safety of their residents, that doesn't give them free rein to pass laws that discriminate against businesses from other states. There has to be an important state interest involved, and the means chosen has to be the least discriminatory one possible.

Supporters of the 2010 law -- including The Times' editorial board -- argue that it will protect consumers against eggs produced in unsanitary conditions, as well as discouraging the cruel treatment of certain hens. And the measure doesn't discriminate against out-of-state farms; the same requirements are imposed on all eggs. In that sense, it's much like the conditions the state imposed on foie gras, which the U.S. 9th Circuit Court of Appeals upheld in 2011.

I know, I know -- it's the 9th Circuit, not exactly a rock-solid guide to constitutional interpretation. Nevertheless, according to Judge Harry Pregerson, the Supreme Court had established a clear, two-part test for measuring the validity of state laws that impinge on interstate commerce:

"When a state statute directly regulates or discriminates against interstate commerce, or when its effect is to favor in-state economic interests over out-of-state interests, [the court has] generally struck down the statute without further inquiry," Pregerson wrote. "When, however, a statute has only indirect effects on interstate commerce and regulates evenhandedly, [the court has] examined whether the state’s interest is legitimate and whether the burden on interstate commerce clearly exceeds the local benefits."

The 2010 law doesn't discriminate against out-of-state producers, and under the court's reasoning in the foie gras case, it doesn't appear to directly regulate interstate commerce either. The law doesn't ban the importation of eggs into California, it just requires them to be produced within certain parameters. And it doesn't stop out-of-state farmers from continuing to produce eggs for sale in other states however they please.

That leaves the second part of the Supreme Court's two-part test. It's hard to argue that California doesn't have a legitimate interest in protecting residents from eggs tainted by squalid conditions in cramped pens. I'm not so sure, however, that the law's benefits for California egg buyers outweighs the burdens it imposes on out-of-state farmers. After all, eggs produced by chickens in small pens have been consumed safely for, what, decades? That suggests that the real beneficiaries of the law are chickens, not consumers. I'm not sure how much weight the courts have placed on animal welfare when balanced against the welfare of out-of-state farmers.

Admittedly, I'm not the best defender of the 2010 law on The Times' editorial board, which blasted Missouri's lawsuit shortly after it was filed. I opposed Proposition 2 because it put California farmers at a competitive disadvantage, raising their costs relative to their out-of-state rivals'. And I didn't think that simply imposing the same requirement on all farmers selling eggs to California shoppers would pass constitutional muster. But that question will be answered soon enough by one or more federal judges.

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