LINCOLN, Neb. (DTN) -- Twenty-three states joined the Iowa Pork Producers Association on Wednesday in an appeal to the Supreme Court challenging California's animal-housing law created by Proposition 12.

The industry continues to fight the law, which they say is discriminatory because it regulates pig farming practices nationwide.

On Jan. 3, 2025, the Iowa Pork Producers Association appealed to the Supreme Court after the U.S. Court of Appeals for the Ninth Circuit rejected a legal challenge to Proposition 12, alleging the law discriminates against pork producers across the country.

On Wednesday, 23 states, including Iowa, Alabama, Arkansas, Georgia, Idaho, Indiana, Kansas, Kentucky, Louisiana, Mississippi, Missouri, Montana, Nebraska, New Hampshire, North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Tennessee, Virginia, West Virginia and Wyoming, filed an amicus brief with the Supreme Court in support of the appeal.

The challenge stems from a previous Supreme Court ruling on the case, which determined California's law does not violate the Commerce Clause.

However, five of the nine justices in that case said Proposition 12 -- which enacts a pork sales ban on farms across the country that don't follow the state's animal-housing regulations -- could "impose a substantial burden on interstate commerce" under what is known as the Pike balancing test.

That test is used by the Supreme Court to determine whether state laws are unconstitutional because they violate interstate commerce.

The Supreme Court ruled against the National Pork Producers Council in 2023 in its challenge to Proposition 12. In that case, the plaintiff did not make a discrimination claim.

The Iowa Pork Producers Association, however, filed a discrimination-based appeal that was heard by the Ninth Circuit. In its new appeal to the Supreme Court filed this month, the association said the Ninth Circuit dropped the ball in dismissing the new case.

"Thus, when a lawsuit arose that did allege discrimination, however, the result should have been clear: a party actually alleging a discrimination-based challenge to Proposition 12 states a claim and 'at least survive past the motion-to-dismiss stage,'" the association said in its appeal.

"Not in the Ninth Circuit. Here, petitioner vigorously pursued a Pike challenge to Proposition 12, yet the Ninth Circuit rejected them all with little analysis."

STATES SUPPORT PROP 12 APPEAL

The new challenge, now backed by the 23 states, asks the court to consider whether lower federal courts should consider all Supreme Court justices' opinions to determine "the majority position on a legal issue."

Convincing the Supreme Court to consider a case typically faces long odds.

The court accepts on average about 80 cases a year out of hundreds of appeals. Usually, those cases that feature a split on legal opinions among lower courts are reviewed by the Supreme Court.

In this particular issue, the Iowa Pork Producers Association said there is a lower court split in its latest lawsuit against Proposition 12.

The First, Third, Fourth and Eighth Circuits have all held that all justices' opinions from the Supreme Court should be considered to determine majority positions on legal issues.

However, the District of Columbia, Second, Fifth, Sixth, Ninth, Tenth and Eleventh Circuits, have held that only justices' opinions concurring with the majority should be considered.

In their brief filed with the Supreme Court on Wednesday, the 23 states asked the court to reverse the Ninth Circuit and enjoin enforcement of the law.

The states argue Proposition 12 and "other laws like it" could violate the Import-Export Clause as well as the Full Faith and Credit Clause.

If the Supreme Court would consider the California law through the lens of those clauses, the states said that would mean "discriminatory actions taken by one state to require regulations in another state could require clearing a higher hurdle."

The states said Proposition 12 could be considered a tax on other states.

"Justices (Antonin) Scalia and (Clarence) Thomas have explained that the Import-Export Clause prevents states 'from imposing certain especially burdensome taxes' and duties on imports from other states and not just from foreign countries," the states argued.

"Here, Proposition 12 conditions the sale of pork on 'the use of preferred farming, manufacturing, or production practices in another state' where the pork originated. This could be construed as a tax or duty under the original understanding of the Import-Export Clause. Because that may conflict with the Import-Export Clause's original meaning, the issue warrants reconsideration."

Read more on DTN:

"SCOTUS Lets Proposition 12 Stand," https://www.dtnpf.com/…

Todd Neeley can be reached at todd.neeley@dtn.com

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