Egg-Laying Hens, Federalism, and the Dormant Commerce Clause

By Gabriella Khorasanee, JD on November 15, 2013 | Last updated on March 21, 2019

So a chicken, a duck and a shark walk into a bar. Sounds like the beginning of a corny joke right? Well it's not.

Right now, California's prohibitions on shark fins, foie-gras and the confines of egg-laying hens are coming to national attention, and raising issues of federalism and the dormant commerce clause.

California State Laws: Humane Treatment of Animals

In 2008, California passed Proposition 2, defining humane confines for certain animals, including egg-laying hens, and requires that hens have room to spread their wings. The law is set to go in effect in 2015, according to The Humane Society of the United States. This is not the first law of its kind: California has also passed laws prohibiting the sale, trade and possesion of shark fins (upheld by the Ninth Circuit), and a ban on foie-gras (also upheld by the Ninth Circuit).

The Protect Interstate Commerce Act

Rep. Steve King (R-Iowa) has added an amendment to the House's version of the farm bill, which he's dubbed the Protect Interstate Commerce Act ("PICA"), as he explained for the National Cattlemen's Beef Association website. The purpose of the amendment is to remove states' abilities to regulate the way food that is sold in their states is produced, reports The Washington Post.

The language is written so broadly that President and CEO of the Humane Society of the United States, Wayne Pacelle, stated: "Most of agribusiness supports King because in one fell swoop they could eliminate entire classes of laws," including the shark fin and foie-gras bans, reports the San Francisco Chronicle.

California is once again at the forefront, passing laws that other states eventually pass as well. For example, as of July 2013, eight states had enacted shark fin bans. But PICA is shining a big, bright light on some legal issues such as federalism and the dormant commerce clause. The two competing interests are at play, and though it is doubtful that the PICA amendment will pass the Senate, the legal issues it presents are nonetheless important.

On the federalism front, a bipartisan group representing the interests of state legislative bodies, the National Conference of State Legislatures, stated that PICA would "erode state sovereignty by preempting state laws protecting our nation's food production and manufacturing as well as increase state administrative costs."

On the other hand, King characterizes laws like the ones California passes as "trade barriers" prohibited by the Constitution in the Dormant Commerce Clause. We know that in the Ninth Circuit, challengers to the bans have not fared well. In the shark fin case, the Ninth Circuit held that the district court did not err in concluding the ban did not substantially burden interstate commerce. In the foie-gras case, the Ninth Circuit held that the ban was not discriminatory, did not favor in-state economic interests, and did not directly regulate interstate commerce.

We may not want to put too much weight in what the Ninth Circuit decides, with all the Supreme Court reversals it's tallying up. In all likelihood, it won't even make it that far, but it makes for a great debate.

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