Advisory Opinions - The Case That Broke David's Inbox

Episode Date: October 13, 2022

In an episode dedicated to our pig friends, Sarah and David are joined by two guests from The Humane Society of the United States: Vice President for Farm Animal Protection Josh Balk and Chief Counsel Jonathan Lovvorn. Josh offers insight into the fight against animal cruelty and Jonathan, who chaired a defense of California’s pig farming regulations before the Supreme Court this Wednesday, discusses whether the courts can (and should) resolve moral questions. Show Notes: -National Pork Producers v. Karen Ross Learn more about your ad choices. Visit megaphone.fm/adchoices

Introducing the first ever Mazda CX-70, our largest two-row SUV, available as a mild hybrid in Line 6 Turbo or as a plug-in hybrid, crafted to move every part of you. Ready? I was born ready. Welcome to the Advisory Opinions Podcast. I'm David French with Sarah Isger. And Sarah, this really isn't the Advisory Opinions podcast today. This podcast is dedicated entirely to the health, welfare, and well-being of our pig friends. Yes. Yes. So a huge case. We talked about this case in our live podcast yesterday at George Mason. Shout out to George Mason.

Scalia Law folks, they were tremendous hosts. It was a great, we had great fun there. So shout out to you guys. Did a great job hosting us. And we talked a lot about this case as one of the secretly most important cases in the entire term. And we've got a guest, well, we're going to have a couple of guests, but we have a guest one. And to sort of talk about the ballot measures and some of the aspects of the case that haven't gotten enough attention. And then we're going to have a guest two. This is going to be fun.

Before we get to our guests, I thought we could lay the table, set the table, whatever we say these days about this case. National Pork Producers Council v. Ross v ross proposition 12 which states that no pork can be sold in the state of california that comes from pigs that were born from sows that were held in gestational crates these are crates basically where the mother pig can't turn around so those piglets who then grow up to be pigs and are slaughtered can't be sold in the state of California. And the QP, David, the question presented whether allegations that a state law has dramatic economic effects largely outside of the state and requires pervasive

changes to an integrated nationwide industry state a violation of the Dormant Commerce Clause, or whether the extraterritoriality principle described in the Supreme Court's decision is now a dead letter. Number two, whether such allegations concerning a law that is based solely on preferences regarding out-of-state housing of farm animals state a claim under Pike v. Bruce Church, Inc. And David, before we hop into this big conversation, I just wanted to run through some of these tests. So extraterritoriality, you can probably pick up from that question,

is about a state regulation that basically controls or has a huge effect on another state's commerce and production. But Pike is this 1970 case. I mentioned it yesterday, Pike v. Bruce Church. So Arizona wanted to help Arizona cantaloupes. And so if you packaged your cantaloupes in the state of Arizona, you had a label that had to state the state of origin. But this one guy, he grew his cantaloupes in Arizona, but then sent them to California to package them. And so they were not labeled as grown in Arizona. And Arizona issued an order prohibiting church from shipping uncrated cantaloupes from the Arizona ranch and requiring that the cantaloupes be packed in Arizona and identified as coming from an Arizona

packer. This was going to be a very expensive proposition. If you didn't follow that, it doesn't really matter because packed in this entire opinion from Justice Stewart, and it was unanimous, is one paragraph. And this one paragraph will become known as the Pike balancing test. Dun, dun, dun. Here's Pike balancing, David. Where the statute regulates even handedly to effectuate a legitimate local public interest and its effects on interstate commerce are only incidental, it will be upheld unless the burden imposed on such commerce is clearly excessive in relation to the putative local benefits. If a legitimate local purpose is found, then the question becomes one of degree,

and the extent of the burden that will be tolerated will, of course, depend on the nature of the local interest involved and on whether it could be promoted as well with a lesser impact on interstate activities. I've never heard a more balancey balancing test than Pike balancing that is unrelated to the Constitution. There's no textual grounding whatsoever. You know, the Commerce Clause says that Congress shall regulate interstate commerce. You have Wickard and all these other Commerce Clause cases. The idea of the Dormant Commerce Clause is that there's sort of a negative to the Commerce Clause. If Congress can regulate interstate commerce, by definition, it means the states can't regulate interstate

commerce. And so if something they do is an attempt to regulate interstate commerce, that's a no. So for instance, saying that you can't drive 18 wheelers into the state unless they're 50 feet long, even though the industry standard is that they're 75 feet long or something, so that you would have to switch at the border to different trucks, that is clearly a state trying to regulate interstate commerce that would violate this so-called dormant commerce clause, this negative implication from the Congress's authority to regulate interstate commerce. But the Pike balancing test is, again, one paragraph out of this whole unanimous opinion in a law that was clearly not okay. And it basically says, I don't know,

think about the local interest and then think about whether it's excessive and use your feelings. And then there's Pike balancing. The problem is- Trust your feelings, Luke. Use your feelings. The problem is it's been around since 1970. It's a precedent of the Supreme Court. And so I think what we saw at the argument david was the gorsuch thomas if it's not based in the text of the constitution why are we here yeah versus kavanaugh the chief to some extent saying we haven't even applied pike balancing to this it would probably resolve the case. Why are we overturning

Pike when we don't need to, even if it's bonkers? You know, judicial humility, right? Don't decide more than you need to. And that's where I felt like in terms of rubber hits the road, where this case comes out, I could count five votes for upholding the California law unless it gets remanded to apply this Pike balancing test so that it can come up again and then they can determine whether Pike is meaningful or not. This is the second consecutive significant case after the Alabama redistricting case that we talked about, where after the oral argument, I don't have any confidence on how this comes out. And now, like you, I can count to five, but I can't count to five decisively. And they wouldn't change their mind on a narrower ground,

for instance. Right, exactly. A narrower ground that upholds the California law or amends for further discovery. I mean, this is up at a very, very preliminary stage. This isn't summary judgment, even. So, yeah, I'm with you. I still feel like, though, Thomas and Gorsuch were not interested in sending this back down. They want to get rid of the dormant commerce clause, which by definition would get rid of Pike. But you had the advocate saying,

no, no, you don't have to get rid of Pike. We went under Pike, or rather there's no way for the pork producers to win under Pike because even applying that mushy, mushy balancing test, California has a legitimate local public interest. They don't want to be complicit in animal cruelty. California has a legitimate local public interest.

They don't want to be complicit in animal cruelty. And the effect on commerce is incidental in the sense that there are plenty of pigs produced that are crate-free. You can produce crate-free pigs if you want to participate in California's pork production, but you don't have to. We're not forcing you to participate in California's market.

Feel free not to. The answer from the pork producers was... Are you kidding me? It's California, right? Right. I mean, and, and is it California's fault that they're such a big economy, but clearly they are such a big economy. Wyoming can't pass such a law. The pork producer guy said, our motto is we sell everything, but the oink that every part of the pig gets used the blood, the brain, the feet, all of it. And it would be impossible to track each part of a pig to make sure that none of those are going to California. To which the answer is really, is it impossible? Right. No, I, I, and I did think it was interesting that it was Kagan who brought up that states might meet each – quote, constantly at each other's throats about these competing legislation grounded in state values.

But this is also something that is a classic kind of legislative question. That's why Congress regulates interstate commerce is to deal with these situations where states might go too far because Congress could, it's undisputed that Congress can step in and regulate interstate pork distribution and regulate the conditions under which pigs are raised when they're engaged, when they're used in interstate commerce. So how much of this is a judicial question versus how much of this is a congressional question is absolutely key. An interesting part of the argument as well was, you know, that end of the pike balancing test, whether it could be promoted as well with a lesser impact on interstate activities.

By the way, if that sounds like strict scrutiny, like it is, is it the least restrictive means, you know? Right. And so labeling came up a lot. Nobody disputes that California could just insist on labeling of whether the pork was produced in a crate-free manner. And it was interesting to me because the quote-unquote per se test that the pork producers wanted was that anything, any law that would affect the production of a commodity outside of the state violates the dormant commerce clause, basically. And so then you had Justice Barrett saying, okay, but you just said labeling would be fine. So that's not a per se rule then because labeling, obviously, you have to make the labels. And he was like, no, no, no, that's de minimis. And she's like, okay, you can call it de minimis, but then we're just determining what's de minimis.

And around and around it went. I think it did a very good job of highlighting the problem with pike balancing. Okay. Are we ready for our guests? We've got two great guests today. Sarah, can you introduce guest one? Yes. So this is Josh Balk. And Josh is how I come into this whole case for what that's worth. We met under totally different circumstances than this right when the case was being granted cert, weirdly, it was pending, I think, at the time that we met. Josh is the vice president for farm animal protection for the Humane Society of the United States. He also, just fun fact, is the founder of Just. So like when you go to your grocery store and you see Just Eggs or some of these other Just products that are not actually made from animal stuff like eggs.

Josh created that company, co-founded it. So you see Josh every day in your grocery store, or at least I do. And the reason that Josh and I started talking was because I was fascinated with the politics of ballot measures. fascinated with the politics of ballot measures. And, you know, we spend so much time talking midterms and candidates and horse race. We forget these, you know, huge ballot measures and the success of ballot measures, unlike candidates, at least sometimes, are a lot more persuasion-based and sort of, I don't know, if you were teaching politics to third graders, ballot measures look a lot more like the politics you teach to third graders than maybe some of our current candidate campaigns, maybe ever candidate campaigns, by the way. Let's not paint

a rosy picture of our 19th century politics either. And my conversations with Josh have been fascinating. What, it's been like a year plus now, Josh, that we've been chit-chatting about ballot measures. And I have said that I think Josh and his ballot measures across the country have gone under the radar to some extent in terms of being probably the most successful movement, again, in terms of persuasion and sort of that political win since MAD, since Mothers Against Drunk Driving. So welcome, Josh. It is great to be on, Sarah. Hello, David. Thanks for having me. And I feel bad for everybody who walks in a grocery store and they see me. What a nightmare. They're going to never want to go back to the grocery store ever again. grocery store ever again. So put this Prop 12 in context. Tell us about Prop 12 a little,

and also how you thought of it strategically in that national picture of what you do. Well, it starts with how we raise animals in food production. Most egg-laying hens are confined in really tiny cages. Just imagine a cage the size of your home microwave. Let's stick six chickens in there and that's their entire life. That's it. They can never even spread their wings. Let's picture a baby veal calf ripped away from her mother, put in a cage so small he never can turn around his whole life. And let's imagine a mama pig put in a cage so narrow she never can ever turn around. I wish these were aberrations, but these are standard practices within animal agribusiness. So that's where we start. Now, here's the thing. I believe everyday ordinary Americans care about animals. It's just in us.

It's just who we are as people. I don't care whether you're conservative, liberal, moderate, you care about animals. And so there is a big gap. The gap is most of us care about animals. And on the other side, most animals raised in food production, particularly these animals, are treated in a way that does not comport with our views that animals should be treated humanely. So what we did, Sarah, is wage a ballot campaign in California called Proposition 12. And it merely ensures that egg-laying hens are not confined in tiny little cages, that baby veal calves aren't confined in tiny crates they can't turn around, and that those mother pigs are able to turn around as well. in terms of the strength of the law, but also moderate for what it asked for. And because of that, we were able to bring in a huge coalition of people from all parts of the political spectrum,

and we won overwhelmingly with two-thirds of the vote. Put this in context, you've done this in other states as well. We have. We passed a ballot measure that's similar to Prop 12 in Florida, 2002, Arizona in 2006, a precursor in California in 2008, Massachusetts 2016. So we've passed similar ballot measures in red states, purple states, blue states. And the theme is that it always passes overwhelmingly every single time. In fact, the spokespeople for campaigns, you wouldn't have any idea other than the fact of what political party they stand for, what they see about animals is reflective to what politics they are. Beyond the point, they also care about animals, just like everybody else.

And this part has been fascinating to me because when you think about issue advocacy, oftentimes you imagine someone allying with a political party or another movement. And we've talked about Proposition 8. And that was up on the ballot at the same time that your proto Prop 12 was up. And also this idea of you've actually worked quite a bit with industry as well. And like when to make friends, when to make enemies, when to persuade, when to sort of go to your base. I find all of that fascinating. So maybe walk us through, I don't know,

how you don't alienate your own quote unquote team while working with Big Egg. Yes, that's a hard one, isn't it? Well, in my mind, there should not, Big Egg. I know, I picked that up, David, too. I picked that up. That was good. That was good. Big Egg and Big Egg. Well, I picked that up, David, too. I picked that up. That was good. That was good. Big Egg and Big Egg. Well, let me tell you, it is true. We do actually work with Big Egg these days, and I'll tell you how we got there. Well, the first thing is that I don't

believe there should be a litmus test on who can help animals. If you care about animals, you're in. I don't care who you voted for in Congress and Senate for governor. I don't care whether your family has been Democrat, Republican, or never voted. If you care about animals, you are part of the team. That's the first thing. The second thing is making it clear what our campaign is all about. And our campaign is all about inclusion. And that, yes, great, we're going to work with people we probably agree with politically. But if you want to be part of our team, we're going to also work with people who we personally might disagree with on other issues, but we have to welcome them just like

anybody else to our team if we really want to help animals. And there's so much suffering that goes on to animals. You know, I used to be an undercover investigator many decades ago when I was much younger. So I used to see firsthand the abuse that goes on to these egg-laying hens in cages and these mother pigs in cages. And I can tell you, when you look in their eyes and the type of suffering they're forced to endure, the type of helplessness I felt seeing them suffer with that extent to that fate, I came to the personal conclusion that we can't ever hold back in bringing in a Big Ten to help them. That's what they would want us to do and they deserve it. So that is the message we had. And Sarah, I think it resonated with our coalition and I think most of us got it. Now, in terms of your question, how do we bring on big egg? You know, there was a saying back in the old West Wing days. And I know Sarah used to

watch that a long time ago, like I did. Used to? You mean like last week? That's right. Yeah. You know what? I don't know how many times I've seen at least season one through four. Yes, exactly. The Sorkin era. That's right. Exactly right. And there was a line from Toby Ziegler, which was, they'll like us when we win. And what happened is that we battled the egg industry so often and won every single time, 100% of the time in every ballot measure that we waged. In the corporate campaigns, getting companies like McDonald's to commit to going cage free or Burger King going cage free. That's so much the egg industry was like, listen, okay, we get it now. Okay, please, mercy, please stop fighting us.

We agreed to go cage free. You got us. But let's work together to make sure there's a true and smooth transition. And I was like, let's do it. And yet again, we brought in folks that, hey, we battled with in the past. And now we are working with the egg industry to transition the United States of America to be a cage-free country. And you know what, Sarah, if you and I met, let's say 20 years ago, I'd be like, oh my gosh, only 1-2% of the egg industry is cage-free.

I'd be like, oh my gosh, only 1-2% of the egg industry is cage-free. Now, it's nearly 40% cage-free. And according to the USDA, in a few years, it's going to be 75% cage-free. That's because of our victories in the ballot measures, our victories getting companies to commit to go cage-free. And it's with the egg industry. And I give them credit for acknowledging that the trajectory is also cage-free. Let's work together to get there. I mean, David, can you think of any movement

that has been more successful other than Mothers Against Drunk Driving, sort of the change in culture around drunk and buzzed driving that has been as successful as the cage-free egg movement? I mean, it's ubiquitous. Yeah, you know, I think when you talk about the way in which we produce our food

and the way we treat animals, the biggest barrier and the biggest barrier to, in my view, and I'd love to hear what Josh says about this, the biggest barrier to change is just knowledge. Because as Josh was saying, there's this incredibly widespread view that animals should be treated decently, that it's hard to find somebody who's going to say, nah. And if you do find somebody who's going to say, nah,

then you often don't even want to know that person in a lot of other contexts. That's not the kind of person you're wanting to hang with. And so there is such a widespread view that animals should be treated decently. And then you match the view that animals should be treated decently with the actual facts of the way animals are so often treated. And people want to do something about it. So it's easy to see in one sense why it succeeds in the abstract. But I guess one question I have for Josh is it's hard to get people to know what's happening. In other words, it's a country where a lot of people are busy about a lot of different things.

And, you know, it's a country that a lot of folks don't really zoom in on politics, much less ballot measures, for example. I remember there was a poll done many years ago where more people knew that Randy Jackson was a judge on American Idol than knew that John Roberts was chief justice of the United States. How are you breaking through the ignorance barrier? Because that seems to me just from the outside to be your primary barrier. Once you break through the ignorance barrier, you're going to have a lot of buy-in. And so how are you doing it? I think you're right on both fronts, David. One is that most people do care about animals. And the second part is that most folks don't know how bad it is for farm animals. Right.

And once they know, they don't like it. They don't like the idea that these animals are being treated so abusively. So here's how we try to break through that barrier. One is through the ballot measures that we discussed. And the reason being is that in every voter guide, there is the argument for the ballot measure, which goes out to literally every single voter in a given state. So they're going to be reading our argument in favor of banning some of the cruelest, most inhumane practices that exist. We also, of course,

do advertising around the ballot measure. And so with California's Proposition 12 that we discussed, we spent $13 million worth of ads. And I got to tell you, that is the most money ever spent to do advertising for farm animals, likely in US history. And the reason why we're able to do it is because we galvanized so many people behind this campaign. So you had a single focus election day to pass a critical law to improve the treatment of animals, to make food safer, to reduce public health risks. So we had a lot of support around it. With that, funds came. We got to bombard the airways with actual images of how animals were raised within these

industrialized settings. And that opened the eyes of a lot of people who otherwise would have no idea what was going on for these animals. Also, I know we'll be talking later on about the Supreme Court case. A big error in my mind with the pork industry has done challenging Proposition 12 is that for several years after the election, we've been able to talk about how cruel the industry is. Right. the industry is. We've been able to do national media about how the industry is so callous that it somehow thinks it's appropriate to confine a mother pig in a cage for years on end where she's unable to turn around. We've been able to talk about the food safety threats, the public health concerns related to treating farm animals so abusively. And so imagine if the pork industry

said, listen, we hear you, we're going to make food safer, we're going to improve the treatment of animals, and we're going to move on. That probably would have caused a lot less public discourse about the treatment of animals. Heck, I don't know if I'd be on this podcast right now talking to you, David, if it wasn't for the mistake they made. But now there's been a national dialogue over the treatment of animals. And almost every single time there's a discussion national dialogue over the treatment of animals. And almost every single time there's a discussion, it's not whether the animals are being abused.

It's about whether the law fits in some commerce clause issue, whether it's constitutional. It never comes back to, hey, we do think it's appropriate to treat animals this abusively. So that's how we've been raising the level of concern and interest on the issue over the past several years. On this podcast, we like to think we have a

culture of steel manning. In other words, what is the best argument that the other side brings? And if I'm putting myself in the shoes of pork producers, is the argument essentially, let's put aside the dormant commerce clause stuff. We'll get into that in detail. But from a standpoint of policy rather than constitutionality is the best argument that, look, this is a regrettable necessity for cost. In other words, if you don't want bacon or pork products to be prohibitively expensive for consumers, then we don't like this. Nobody likes this. But this is necessary when you're talking about feeding a nation of 330 million people, including an awful lot of people who don't have the resources to sort of buy locally sourced, free range kinds of food products, which seem

to be a much higher price point. You know, if you go to Whole Foods, for example, it's more expensive often. So is that sort of the steel man version of the counter argument? That's certainly the main argument they give. And fortunately for our side, it's false. The reason being is that Iowa State did a study, and I'm not talking about some university on the coast that they can point to as some liberal coastie thing. Iowa State did a study in the heart of pig country that found that it actually is more affordable for producers to raise pigs without

confining them in these tiny cages. And the reason being is that they have healthier offspring. And of course, science lines up with common sense on that. If mothers are treated better, their babies will be raised more humanely and also be healthier themselves. And so according to Iowa State, it actually is more affordable not to confine these animals in cages. Also, if you look at the major corporations that are shifting away from gestation crates, you're right, David, Whole Foods has been a leader. But you know what else is moving in this direction? McDonald's is. Kroger just announced a few weeks ago that all of its fresh pork is going to come from operations over the next two years that don't confine mother pigs perpetually in these tiny cages. Burger King,

Denny's, IHOP, we're talking about places that are not known for expensive cuisine in the United States that have come together to say, listen, we can buy pork in a way that doesn't treat these mother pigs in such a cruel manner. And the last thing I'd say to that is that you're right. That is their main argument. They've tried that argument every single ballot measure, and they have lost every single ballot measure. So on my side, I hope they keep saying it, because they've been saying it over and over again for 20 years since the 2002 ballot measure, and they have lost every single time. Consumers simply don't believe it. And even if they do believe it,

they don't think the cost of cruelty, of unsafe food is worth the reduced theoretical cost of raising pigs the way that they're doing it. All right, Josh, last question on this. At the beginning, something I was really fascinated by was you didn't have a lot of money, you didn't have a ground game. When you think about vegans and animal welfare, you think super liberal. And it would make perfect sense to combine efforts with other liberal groups, you know, you're stronger together, you can have the same single person knock on doors and say, here's this,

but also this. and here's a third thing. And like, it all comes as a package, a bundle of sticks, as lawyers like to say. And I found it really fascinating that you were offered to some extent that opportunity early on, you know, 10, 15 years ago, and you turned it down. Well, Sarah, I firmly believe we cannot win for animals unless we make this a non-partisan issue and not just for strategy i believe it truly is a non-partisan issue i don't know why we would ever exclude conservatives who care about animals why would we ever do that i can tell you if you say you know josh there's a dog who is treated

in their home like a member of the family. The two kids pet them every day, take them for walks. You know, the parents give them gifts every weekend. They have road trips, hiking together. This dog has the best life you can imagine. And you're like, Josh, is this a Republican or Democratic family? I would have no idea. And that's a good thing. So why would I ever exclude anybody who wants to be part of our work to improve the treatment of animals? And I got to say, in the Supreme Court hearing, what was cited and looked at was a brief from Megan Wald, who was an attorney who worked for Alito. And she did a phenomenal job on her brief from conservative leaders who spoke in one voice about the moral concern animals have had for centuries,

not just recently, by the way, for centuries. She cited religious doctrine, Christianity, Judaism, Islam. Why would we exclude folks like them who want to speak out for better treatment of animals? To me, it doesn't make sense strategically. I also think it's just the wrong thing to do, prevent anybody for speaking out for better treatment of animals. And fascinatingly, David, so when you remember Prop 8 in California about gay marriage. So when you remember Prop 8 in California about gay marriage. So Prop 8 won, meaning the ban on gay marriage won as a ballot measure the same year that one of these pro-animal ballot measures won as well. Meaning, you know, without exact, you know, it's always hard because someone could drop off and only do one ballot measure or the other.

But generally speaking, quite a bit of evidence that in fact, there were plenty of people who were crossover voters. They voted for Prop 8 and they voted for the animal welfare measure as well. Anyway, just interesting political. And we'll take a quick break to hear from our sponsor today, Aura. Ready to win Mother's Day and cement your reputation as the best gift giver in the family? Give the moms in your life an Aura digital picture frame preloaded with decades of family photos. She'll love looking back on your childhood memories and seeing what you're up to today. Even better, with unlimited storage and an easy to use app,

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You ready to move to the legal? Let's do legal. Let's do legal. So, Sarah, do you want to introduce John? And then before you do, I just got to say, John, congratulations on triggering more text messages to me from more conservatives and conservative activists and legal scholars saying, when are you going to cover the pork producers case? When are you going to cover? Are you going to cover the pork producers case? Lots of folks had lots, lots of my friends in the sort of the extended conservative world were very eager for us to talk about this because they're very much on your side.

So congratulations on that. And so, Sarah, why don't you introduce John? Absolutely. John LaVorn is the senior vice president and chief counsel for the Humane Society. He sat second chair today, sitting at counsel's table for those who haven't been in the Supreme Court. Basically, two people get to sit there. And it's a big deal. You still get a quill, even if you don't go to the podium. So John is the proud owner of a nice little white feather that I guess technically you could write with, though I don't know that any of us know how.

And he is a clinical lecturer at Yale. You do stuff with the Harvard Animal Clinic as well. You're all over the place, John. You know, I try to influence as many people as I can. And really, if I stay in one place too long, people usually ask me to move on. So I try to keep moving. Well, will you set the stage for us a little on today's argument? Because obviously, the politics and the interesting parts of this ballot measure, frankly, aren't at issue at all legally. Legally, we are talking about

whether the state of California can say that pork products must be manufactured in a specific way to be sold in the state, not labeling, not an all-out ban on all pork, but this very interesting regulation. And we need to get on extra-territoriality, pike balancing, dormant commerce clause. So can you explain your case? Yeah, I hope we have enough time. And, you know, to comment on David's point about the text messages, you know, those of us working really closely on the case, it was a bit like we knew there was going to be a legal parade with all kinds of interesting legal candy thrown at the crowd, but nobody else knew it. So when it started to happen, we were seeing this unfold where everyone else realized how much was going

on in this case and how much red tofu, as we were saying, was being dealt out in the discussion. But I think that, you know, the remarkable thing about the argument was that, as you mentioned, while it was ostensibly about whether or not California hadn't violated the dormant commerce clause, whatever that means, what you heard, and if you just showed up and hadn't read any of the briefs and knew nothing about the case, you might have thought this was a case just challenging what is the scope of California's police power to enact laws based on moral principles, right? So, so much of the argument was really focused in on a question which is related to a dormant commerce clause analysis, because of course, under Pike, you're going to weigh the state's interest against

the impact on interstate commerce, but really gets to the heart of this unresolved question, which is what is the extent of state police power in the moral sphere? And so what I was struck by was not only that at this late date, we still have major unresolved questions in the Constitution of this magnitude, but that it was being resolved in the context of animal protection and what does that mean. And the fact that animal protection is a nonpartisan issue led to some very interesting alignments in the courts and justices, which I think, again, we saw coming. But I think for folks who watch the court, but not this case, kind of had a reaction of, wow, what is going on here? What is this weird sort of Gorsuch, Thomas, Kagan, Sotomayor block forming on the court, right? And when you work

on animal protection, these are the kind of alignments you see all the time because it doesn't follow traditional partisan boundaries. And for the Dormant Commerce Clause, this is the idea, right? There's the Commerce Clause. We all know that Congress can regulate commerce, yada, yada. The Dormant Commerce Clause, the idea is, and there's some things that states can't do to discriminate tariffs, protectionism, basically the intention of hurting another state's industry to help your own. That's a no-no, even though there's nothing in the constitution that says that. That's why it's called the Dormant Commerce Clause. It's like silent. It's assumed to be there. And that's where you get the Gorsuch Thomas part of this is that it's atextual. Now, the argument on the other side is that it's

structural. It's part of, you know, federalism isn't written into the Constitution either. It's part of the structure of the Constitution. And, you know, we have plenty of cases. Some of them are very old, mind you, but there's some relatively recent ones. Um, Pike, you know, is a 1970 case, which I'm now calling recent, um, where, yeah, I mean, states were legitimately trying to help their own internal industries by hurting another state's industry to, you know, help the producers in their state, milk or some of these others. But that's not really what was at issue here because there aren't, for our purposes at least, pork producers in California. Very few. Yeah. Yeah. So it's interesting, right? It's one

of the last remaining penumbra theories in the Constitution. So we have this idea that the Constitution grants Congress in Article I the ability to regulate interstate commerce. And the negative implication of that is some kind of ill-defined limitation on state legislation flowing from that. And one of the reasons why you see Thomas and Gorsuch where they were is they're not convinced that that makes any sense because it's not textual. And if Congress wants to exercise its Commerce Clause authority and stop states from doing things that affect interstate commerce, it can do so at any time. So the question is, what is the court doing wading into this to sort of protect Congress's ability to do something that they

can do at any time. So that creates some really interesting questions and issues. And of course, in this case, because it's not alleged to be a protectionist law, we're operating in what Justice Gorsuch said yesterday, the most dormant of all dormant commerce clause theories, which is this idea of extraterritoriality and that at some point a state law is actually regulating in another state and that exceeds whatever this vague limitation that the dormant commerce clause puts off, that that exceeds the state's authority. So it's an incredibly mushy concept. And other than the rule that states can't restrict commerce in order to advantage their in-state businesses at the expense of out-of-state producers, everything in the Dormant Commerce Clause is up for grabs, right?

That's the only rule that everyone can agree on. And so you have this doctrine and applying it in any particular case is incredibly problematic, which is why, although we've been fighting cases about animal welfare and the Dormant Commerce Clause for more than a decade, we've won every single one of those cases at the motion to dismiss stage because these rules are so squishy that courts are very disinclined to give them the business of weighing the state's moral interest against the economic impact on producers and sort of doing this apples and orangutans comparison that's very, very difficult from a legal standpoint. So one thing I think is interesting about how the argument kind of evolved into to what extent can you pass, for lack of a better term, morals legislation or

legislation that advances state values in a way that impacts commerce in other states, is that what I think it needs to be really clear about that framing is you're talking about passing legislation that is traditionally within the sphere of state police power. In other words, you're not saying passing quote unquote legislation that advances the morality or the morals of the state's value or the values of the state's voters that violates that otherwise violates the constitution. Right. So in other words, to make it more. Sure. No one argues that California can say how its own pork producers create pork. No question

about it. You can say, if you operate a pork facility in the state of California, you may not keep pigs in a crate that is smaller than X, Y, and Z. But can you say that to Iowa? Right. And the interesting question, the interesting thing to me about that was, you know, when there are justices who raise the question about, well, is this a problem in a, quote, balkanized country? That's a classic policy dispute, right? If you're moving from the text of the Constitution, the text of the Constitution, which grants Congress the power to regulate interstate commerce, it seems to me that the answer there is, well, that's one of the reasons why the founders gave Congress the power to regulate interstate commerce. Because if the balkanization issue is truly problematic, they can step in.

truly problematic, they can step in. So that's one thing that I think was very interesting to me about the morality argument here is, one, you're not dealing with a law that otherwise violates the Constitution. And number two, if the concern is balkanization, isn't that a classic legislative concern of a national federal government and less of a judicial concern. And I know I'm just telling you what you want to hear, but am I right?

Well, as long as you're telling me what I want to hear, you can go on as long as you want. I, so it is typical when you're talking about the state's authority to pass morality-based laws, we're usually having that conversation in the context where it bumps up against someone's individual constitutional rights. So that's the more typical question. What was interesting about the argument yesterday was how much we were getting into the question of absent a individual right being violated or threatened to be violated? What is the outer boundaries of the state's authority to enact laws for moral reasons? And what was interesting was that you started to get the sense in the argument that the liberal justices didn't necessarily want an answer to

how far that authority goes. And the conservative justices didn't necessarily want an answer to how far that argument goes. So, you know, the one thing that I will say that was somewhat encouraging for us was that most of the questions directed at the other side were challenging their core premise that morality cannot be a basis for a law like this, whereas most of the arguments at our side were focused on, well, how far does your principle go? Not, does this principle exist? So I think that is a struggle in the case to try to set those boundaries. The other side doesn't have a good boundary without wiping out all state morals-based legislation. And on the other point, this idea that states pass laws with standards for products in-state that affect out-of-state businesses is the most pedestrian concept. The only reason why

it's being made a lot of here is that the pork industry and the meat industry in general has a long history of operating without any legal constraints. So literally, they've run up against the type of legal constraint that any other business deals with on a day-to-day basis. And when, oh my God, what is this? We don't have to comply with laws like this. And everyone else does. So whether you're making cigarettes, or pajamas, or fireworks, or high capacity magazines, all these different products that are made out of state, they all have to comply with in-state standards. This is not unusual, except for the fact that this is an industry that hasn't faced this yet. And that makes it seem novel when the

concept really isn't. And I don't think that came out so well in the argument. There were some references to it. But states set standards for these types of things all the time in a number of areas. So I just want to agree. I thought that, oddly, I thought both sides didn't make their strongest arguments very well. And it was unusual in that sense. Now, I also thought that the justices were fascinating. You know, we've talked about this in the past, David, where these arguments were a little bit devolving into debates between the justices. Sort of knew where everyone stood. You can count votes.

The arguments aren't that illuminating because it's statements followed by a question mark. That was not the case with this argument. You had four advocates. All of the justices got in there at one point or another. They all were asking real questions to each side, probing their arguments. And it made it, I mean, I'll say it now, even though we're only five arguments into the term, this will be one of the best oral arguments of the term in that sense, in terms of like a fun oral argument where you're actually exploring the law,

stress testing different arguments. That part was really neat. But when I say that, I didn't think the advocates necessarily made their best arguments. For instance, buried at one point was the fact of what John just said. Nine states, for instance,

ban the sale of cosmetics in their state that have been tested on animals. How is that not the exact same thing as this? You are determining the means of production of those cosmetics. And, you know, at one point when the other side was up, they were asked like, what other laws would have to fall if we strike down this law? And they were like, none, no other laws. I'm like, wait a second. These nine laws would almost certainly have to fall. They're the exact same law. I mean, down to the fact that it's about animals, it's a morality issue. It's not a safety issue. Nobody's saying that eyeliner tested on rabbits is somehow less safe for eyeliner consumers. It's a moral issue for states like Virginia, the one that I live in. So, and that didn't come out a ton, I felt like in the argument. I also thought on their side,

you know, they did not do the parade of horribles, which I think is their best argument. And it came out from the justices later, but like, why can't California pass a law tomorrow that says no products can be sold in the state, which are produced by a company that doesn't offer full healthcare coverage for someone who wants to transition to a different gender, for instance. Why can't Texas in its legislative session that's starting in January, pass a law that says no products can be sold in the state that are produced by illegal aliens? And on and on it goes.

And the answers were like, well, that doesn't really touch on the means of production of the thing itself. But I thought Justice Kagan had a good question that, again, wasn't particularly fleshed out. Okay, in 1850, could a state say that you cannot sell products in the state that were produced by slave labor? And everyone was like, um, I mean, Ed Needler, to his credit, there's very few people as intellectually honest as Ed Needler. And he was like, the logical extension of the principle that I am explaining says that no, they cannot do that. They cannot

ban the sale of products produced by slave labor. But I think intuitively we're all like, yeah, you definitely should be able to ban slave products. But the logical extension of that is then you definitely have to be able to ban illegal alien products or other products where it's the labor part. You can't sell products that are produced by child labor or union or right not to join a union. And that's where you get those parade of horribles, John, that I thought made the case very difficult. I think I can count to five for you guys. I think you, you have Thomas and Gorsuch saying the dormant commerce clause isn't a thing. It's up to Congress. If they want to step in on this, they can. And you had Kagan, Sotomayor and Jackson,

um, just not really buying into the idea that states can't do what they want, uh, less about the dormant commercelause than just this, this is clearly just going to be okay. But, you know, I had emailed you before that this was either a 5-4 case or an 8-1 case. I don't think it was an 8-1 case, John. Well, I think there might still be time for that on some kind of pike remand in order to dodge the major unresolved questions. I mean, my overwhelming reaction was somewhere someone is saying, why did we take this case? Like, I think the court got into it and essentially bit off more than they really realized they were going to have to chew. But the remarkable thing was, the case was so much about what happens in the next case. There was very little about whether this seemed

reasonable or whether California should be able to do this. And most of the argument was about the implications if you tell them no for other things or the implications if you tell them yes for other things, right? And I think some of the hypotheticals are easier than others. I think when you're talking about the abuse, whether it's animals or humans or the environment being essential in the production of the product, I think there's a distinction between that and what I would say, collateral business ethics, like are you providing this in your, you know, these types of benefits to your workers and healthcare and other things. 401k has to be particularly good in order to sell products.

Right, right, right. The 401k that doesn't invest in fossil fuels, right? So I think the more attenuated you get, and you know, the court actually talked about this in Baldwin when they said, well, you can't do the minimum wage standard. And you can't do the minimum price standard because you're using these as general economic proxies for other state interests. And that is essentially the same as a tariff. And one of the best arguments against the Dormant Commerce Clause is that Congress already put, I'm sorry, not Congress, the framers already put into the Constitution exactly what they meant, right? So they banned tariffs. And I understand a dormant commerce clause theory that bans tariffs or tariff-like state laws, like the situation in Baldwin where you're talking about price. And I think I would say a minimum scale for wages is a tariff-like standard. But everything else I do think is either up to Congress to step in, or more importantly,

we need some other doctrine to do whatever work we're talking about, right? So whatever we're doing to stop laws from being unreasonable or going too far, other things, my overall reaction was we're asking the poor dormant commerce clause, this atextual, barely functioning concept, to do this massive amount of work in our constitutional system of answering the fundamental question of how do we deal with conflicting state morality and differences between state standards for imports. And it's just not up to the task. It's literally thinking, well, my car can't get me to work, but I'm going to hop in it and try to go on a cross-country road rally. There's just no way this doctrine can handle the work the court was trying to put on it.

And more importantly, not really the court, but the petitioners were trying to make this poor doctrine, you know, run uphill, huffing and puffing to try to carry this much constitutional water. And I don't think it can do it. You know, and when, as I was, as Sarah was talking, I was, one of the answers that just keeps coming to my mind is democracy matters here. And the, there's a couple of ways in which it really matters. One within the state, it is not proven to me that voters in states will endure incredible economic hardship to make a moral point. It is very proven to me that voters in states will indulge in culture war performative legislation that requires nothing of them, that is no sacrifice at all. It is not proven to me that voters of states will endure much material hardship for the sake of sticking it to Texas or sticking it to California.

That is a presuming facts, not an evidence. The other thing, though, is we actually have systems to deal with this. And we can't, and the Supreme Court, to its credit in other areas, has said, look, we're not going to be, we're not deciding, for example, as it's talked about, you know, EPA and Clean Power Plan. executive more authority because Congress is dysfunctional, right? That's not our job. It's not our job to give the executive more authority because Congress is dysfunctional. It's also not our job to limit state power because Congress is dysfunctional. And if a functional Congress could step in, and that's its role, its constitutional role as the regulator of interstate commerce, to step in in the face of abuses of state power that are harming interstate commerce,

that's its role. And it's not the role of the court to predict that it won't do it or to predict that it will fail or not do it well enough. And that's where a lot of these policy questions just to me felt like this is a congressional hearing if you're spinning out all these hypos

and these policy questions. David is singing the song of Justice Gorsuch. Yes, yes. As I so often do, as I so often do. One of the things that we found that was interesting was that there was a direct relationship between how far you're physically located from Washington, D.C., and how persuasive that argument was in the moot courts, right? So the closer you were to Congress

on a day-to-day basis, the less you were willing to entertain the idea that Congress should be the right body to fix this, right? So I totally agree, And I think that is an important concept of our argument. But I also recognize that there's a concern, you know, about whether Congress can act. But I, you know, I look at things, and of course, we haven't really raised Dobbs directly yet. But when I look at cases like Dobbs, which say, look, the court can't solve every moral issue of our time, that's got to go other places. I guess what I would say is there has to be, not has to be, there should be some level of moral consistency, doctrinal consistency, where if you're not going to take upon the court to resolve major constitutional rights issues under the theory that that is the role for the elected branches, why in the world would you take it upon the court to resolve every question about conflicts of laws or policy or whether or not, you know, states have gone too far? Thomas where they are, but it will be really interesting to see where Alito comes down

and others and how they normalize their rulings here with some of those other positions. So last question to you, John. You referenced the fact that you think there's a chance that there's some buyer's remorse here at the Supreme Court. I said, I think I can count to five votes for you. But as you alluded to, there's also the chance of sort of these lesser outcomes where this case does not have an established record. This isn't a summary judgment motion even. This could end up getting remanded. You know, Justice Kavanaugh seemed perhaps interested in that.

Give us your best guess. How do you think this comes out right now? Wow. So I think absent my experience in animal protection, I think it's a win for California, but maybe not answering all of these questions for time immemorial. But the one thing that gives me pause is what we've seen time and again in the animal protection space is this question about humane treatment of animals is difficult for judges to grapple with directly. And the closer they get to the sort of crunchy center of it, the more likely they are to divert away and say, oh, there's no Article 3 standing, or this is a political question. So I think there's some chance that they take the low road and just remand it back for a pike balancing in order to avoid having to answer sticky questions that might split the court. And what we may

actually see is how important is it to this court given last term to not get directly into a major ideological divide out of the box here when maybe there's a path of less resistance. So those are some of the things I think could drive them to a pike remand. Noticeably, unenthusiastic about that idea was counsel for the pork producers, because, of course, their own economists and their own members are in the record contradicting their case. So they have a pretty good idea of what's going to happen if they have to go into discovery and remand on the question

of what pork producers are actually going to do, how they're going to react to this. They're going to have to let the cruelty involved be opened up to discovery after spending years passing laws, so-called ag-gag laws, to make sure no one sees what goes on in those spaces. So they were noticeably not thrilled about that remand. So we will just wait and see. And Josh, before I let you go, we get a lot of questions from law students especially, but just people who are visiting D.C. about visiting the court. And I want to talk a little

bit about your experience, if you don't mind, because you got to the court at 6am, you said, to wait in line. First of all, how was waiting in line for two and a half hours, three hours? You know, I actually enjoyed it because I got to talk to a lot of people who cared a lot about this issue. A lot of folks who just came around the country because they want to see the court roll on the animal side. And so people were pumped up out there and it was really fun. Was it cold? What happened in terms of why I didn't get in, which actually turned out fine because I got to talk to a lot of media folks on the outside because I didn't get in. But there were certainly a bunch of paid folks who were sitting out there in lawn chairs and blankets. And there's maybe like 10 or 15 of those folks. And then right before you're given out the ticket to go in, all of a sudden they dropped off. And for every person who was sitting in line, like four or five people jumped in to take their spot. And then all those folks kind of got in. So it turned out okay. And that actually turned out better for us because we got a lot of really positive media attention

for the animals and the issue because of it. So just to run through that, you got there around 6am. You were probably in the high 40s, in the mid 40s somewhere, and you ended up being number 63. That was not low enough to actually get a seat. They have the rotating seats in the back, but you get to stay for like five minutes. And it was because of line sitters. So dear Supreme Court clerks and any justices who may hear this, line sitters are the bane of the Supreme Court. It's incredibly unfair that people are paid to sit in line in the first place. But it is wild to me that you would not enforce that at least if you're going to be a paid

sitter, one person takes that spot. The idea of paid sitters now sitting for an innumerable number of people. The court officers are there. The line sitters only get out at the very end. This would be easy to enforce. You want the court to be open to the public again? Fix the line sitting problem. I don't even understand what the argument would be on the other side. There's no steel manning to do here. It is absurd to be, to get there at 6 a.m., be number 40, which would guarantee you a spot in the court, only to be number 63 because of the paid people who were in front, who then let, you know, four or five people per person in. Come on, Supreme Court. This is, like, everyone can

agree that this is bad. You know, everyone can agree that farm animals shouldn't be confined in tiny cages. And everyone can agree. I like it. On message. On message. Yes. Yes. All right. Thank you, Josh and John, for joining us from the Humane Society of the United States.

Congrats to you both on a great argument yesterday. Thanks for having us on. Thank you so much. Yes. Thank you very much. This has been a fantastic conversation and we really appreciate it. Or whether the extra territory or whether the extra territoriality, why can't I say that word?

Extra territoriality. Territoriality, okay.