The attack by the farm lobby on states’ rights

Just about every major retailer in the United States – from McDonald’s to Walmart to IHOP – has publicly expressed an intention to phase out and ultimately eliminate any eggs from its supply chains that confine hens in cages. Photo by iStockphoto

Yesterday, the Supreme Court of the United States elected not to hear an appeal by state attorneys general and governors aligned with Big Ag who were seeking to overturn California’s landmark egg sales law that stipulates eggs sold in the state must come from housing systems that do not severely confine laying hens. In practical terms, this means that a prior decision in November by the Court of Appeals for the Ninth Circuit stands. That ruling tossed out a bare-knuckled attempt to nullify AB 1437 and to allow inhumanely produced and unsafe eggs to be sold in California.

Ironically, the politicians behind this lawsuit want to sell these eggs in California even after just about every major retailer in the United States – from McDonald’s to Walmart to IHOP – has publicly expressed an intention to phase out and ultimately eliminate any eggs from its supply chains that confine hens in cages. Here you have a circumstance where the politicians are lining up to wage a battle for Big Ag that Big Ag has already lost in the marketplace.

Last year, the Ninth Circuit court found that because AB 1437 does not distinguish among eggs based on their state of origin, the law is not discriminatory. A farmer can sell eggs in the state if he or she complies with AB 1437’s modest animal care standards. Jamming birds into tiny spaces that immobilize the animals violates those standards.

AB 1437 went into effect in California in January 2015, at the same time as a related ballot measure, Proposition 2, which was supported by nearly two thirds of California voters, and which mandated that laying hens, breeding sows, and veal calves should have room to “stand up, lie down, turn around freely, and extend their limbs.” That’s hardly a radical animal rights manifesto – more like a statement of decency and a hedge against unsafe food and inhumane treatment of animals.

Chris Koster, a former Missouri attorney general, initiated the now-dismissed case in a failed effort to vacuum up votes from Big Ag interests in the run-up to his failed gubernatorial campaign in 2016. He was joined in the lawsuit by then Oklahoma Attorney General Scott Pruitt, who famously fought for a “right to farm” (aka “right to harm”) measure in Oklahoma that sought to entirely deregulate agriculture in his state on a go-forward basis. He lost that statewide campaign on State Question 777 by 20 points, a pretty clear indication that the people of Oklahoma didn’t want agriculture getting a free pass to do whatever it wants. But Pruitt still got appointed to head the EPA, where his influence over agriculture policy looms larger than ever. Both politicians were joined in the case by former Iowa Governor Terry Branstad – now the U.S. Ambassador to China. Long before he was appointed to that post, Branstad was selling off large quantities of Iowa farmland to the Chinese, so they could operate factory farms, even if it meant that rural Iowans had to deal with the stink and waste emanating from them. Branstad at the same time signed into law an ag-gag measure, making it more difficult to blow the whistle on wrongdoing by those megafarms in Iowa.

Now a few of their ideologically aligned colleagues in Congress – showing the same slavish fealty to the Big Ag lobby – are apparently gearing up to achieve in Congress what they couldn’t achieve in the federal courts. They want to wipe away any and all state laws of this type. It’s a brazen, hypocritical attack on states’ rights, from people who mouth the phrase “states’ rights” when it suits them and then throw the concept under the bus when it doesn’t.

This bill would force states to allow commerce in products they have banned. As the Supreme Court has made clear, the Commerce Clause allows Congress to regulate commerce; it doesn’t give Congress the authority to mandate its creation, nor to require anyone to participate in commerce they find objectionable.

The proposed “No Regulations Without Representation Act of 2017” – which some folks in the agriculture industry sent to us, to alert us to this radical action – is so absurdly broad and vague that it could be interpreted to nullify an entire spectrum of state laws dealing with food safety, labeling, labor, and environmental protection. It could trigger expensive court cases about any state law related to agricultural products, from the sale of raw milk to the labeling of farm-raised fish or artificial sweeteners to restrictions on firewood transported into a state in order to protect against invasive pests and damage to local forests. And that’s just a small taste of what the authors of this bill are trying to accomplish, in their effort to disempower state citizens and lawmakers. Their attack on the states would force the states to accept the sale and consumption of any agricultural product—no matter how dangerous, unethical, or environmentally destructive.

Earlier this year, some of the same federal lawmakers behind this maneuver supported an effort to block federal rules to stop particularly inhumane and unsporting methods on federally authorized and funded national wildlife refuges. The backers of this effort made a fanciful states’ rights claim that Alaska should decide how wildlife are treated in the state, despite clear-cut jurisprudence that unmistakably established that Congress has the authority to manage wildlife on refuges and national parks.

In short, when it doesn’t suit them – in this case because big agriculture wants to sell unsafe animal products that come from confined animals on factory farms – they are happy to trample states’ rights. In fact, their “No Regulations” bill makes previous, like-minded attempts in Congress look modest. Call them “situational states’ rights advocates.”

Is it any wonder why the American public is so cynical about people who care not a whit about animals and who are prepared to mangle constitutional principles when it suits their designs?

We’re glad about the Supreme Court action yesterday. But now we’ll be vigilant in Congress as a cabal of lawmakers makes wild, dangerous arguments in the run-up to consideration of the Farm Bill.