Transcripts For CSPAN3 Supreme 20240704

California argue the law only applied to instate sales. The oral argument or two hours. The argument hearst this morning in case 21 for 60, eight National Pork producers versus ross. Mr. Bishop . Mr. Hief justice, may it please the court, the fact we alleged or seem to be true, but this is a decision here. The state clas the process violates the Commerce Clause, because its an extra territorial regulation that conditions pork sales on ouof state farmers, adopting california preferred forming that these. For no valid safety reasons. Proposition 12 also fails tip because it burdens interstate commerce for no local benefit. California to change farming methods everywhere, to quote, prevent animal cruelty by phasing out extreme animal confinement. That confinement occurs in othetes. California imports 99. 9 of pork. Decisions like baldwin establish that even when the lais triggered only by instate sales, the state may not project its legislative into he states in that wa to do so infringes the territorial automyf the states, and it impede our national commket. No other state makes its farmers has the way that californ ds. Very fmers do. They keep cows an invial pans during the vulnerable brg period, and they provide less 24 square feet of sp in group ends. An farmer doesnt know where pork from cows will be sold, pigs go to a nursery of partsth are so around the world and response for them. In important proposition 12 is lawful, new york will say the pigs had to have 26 inch spa and send insps into farms where these compliances of california do. Oregon can condition imports on workers being paid the minimum wage, and texas cdition sales on the producer employing only lawful u. S. Residents. At that, we have truly a national market. Ers ideas of a i inte the courts questions. Mr. Bishop, when exactly is a state and trust erritorial . Because this, as i read californias law, it is about a product being sold in california. Unlike some of the cases you cite, its not reaching out and regulaing something across state lines or regulating pr well, the test that we sed is that a state law that conditis sales on an out of state business operating in a particular way how does california exa do that . You cannot sell pork in california unless you raise your sows in a particular way out of state. Its a condition on sale. Thats verylittle different from baldwin. Baldwin conditionssale of milk in new york, predicated onthe york rate. E being paid the new nd they did that because they thought it was necessary to pave in order for themto use sy methods on the dairy. Not protecting ation that we interrupt you, iapologize. What if californiasaid a house to be built, according to certainrules by certain dards, with certain products . Hence,excluding products that ade in anotherstate. For example, it says that you cantbuild a house entirely out of. Would you cant import wood from another state a libetate like georgia. Thats just thats different, Justice Thomas. Why is it . Its affecting your product from extraterritorial. A state may been a product, theres no doubt about that. They could be in pork, they convene lumber to be used in building houses. What it cant do is condition sales in the state on a business in another state adopting a particular methods of production. That tramples on the other stat rghts. If you want to import reod into the state . You have to have used certain kind of pesticide to make sure the versed pests dont come in with the firewood. Would that be forbid well, i think you can ban a product thatcontains certain pests. Main versus taylor i think us established this. T you cant, in new york, u cant say any producers that t use approved a particularsticide. This wont always be your answer is, it you c you cant, right. Anytime a staes something that, i say forces, it doesnt r force, but if you want the state market, it forces you. Anytime the state does something that forces you to change production methods in any way that would be a band, [interpreter] then, i think this is almost rule, even for discrimination cases, theres always the safety out if the state can show the rule is necessary. Counsel, can i just say thats our position. Can i j clarify, i perceive a difference in the ruleyoure articulating right now, then in your brief. I just want to make sure i rstand the rules that you i thought your briefs were ting us for a role that a state may not enact laws that have the practical effects of ntrolling conduct outside of the states borders. Maybe im wrong, so you can tell me, then the rules that youre now saying,which is the state law that condition sales on out of state business opng particular way, is prohibited. Which one is . I think our view is, one extraterritorial rule always has that practical effect on commerce. It affects commerce out of state, and it tramples the rights of the state in wh the business is located. I see lta between the questio of whether or not the states regulation controls conduct outside of the state borders,and what seems to be a narroweroposition that you want to parse a rule that , its a stateconditioned sale on an out of state business operating in a particular way. Am i wrong that thats an error . Court has used that controlleds language cases like and baldwin to stan this proposition. That you may not condition state sales on out of state perations. Ishop, you have several arguments, and i gather that your answer i Justice Kagan, badn your extra territoriality, argument, is no. New york cant do that. But how would that play out under your other argument, which is that the pike balancing test would apply . Pike is a factual test. Younsider whats the impact on its commerce. Anyway that burden agai the local interests. But they extraterritorial rule that were proposing does, really operates in that first level, the burden level. What it says is, it clear that a laws that condition le on outate operation changes operation, its always gonna be aificant burden on interstate commerce that if a case th very concerns that the framers had about organization. Suppose it was ng or rhode isl, would it pass a law like this . It would not make any difference. It certainly makes a difference in ind of burden that id. Somebody could ea cut off yoming market. What we are proposing, your nor, a poor sale rule that is conditioned on sales instate. Thatst a matter of per se roller goes to the extraterritorial rule. Pike. Ce alitos asking about right. What im trying to explain is the relationship between extra territoriality and pike, whichat territorial rule establishes per se, that burn ispresent in every case. I out the need to do that. That establishes that there is a substantial burden on interstate . Exactly. Thertainly is, in the case where, the st a if you go to a pipe balancing, then youd also take it i account in a situation like the one that was pote by Justice Kagan, th strain of the stinterests. This cour a very strong interest in preventing a really dangerous product from coming into its border way, taken to appeals. Account on extra territoriality even in cases like oregon waist, where to discriminatory law. This court does consider the safety rationale, offered by the state. Ut the state has to offer a realnon speculativesafety rationale, why is in this pike balancing test reading too much into tooite . Its one paragraph in a short, unanimous opinion. And it relies on three very old cases, baldwin, keely, and brown, well theyre 100 yld. Roundabout. Then involved price fixing or price affirmation. The form of discriminationare agout of state market participants. At least thats how many le in many courts have read them. I confess, im guilty of that o on the tenth circuit. Pike was about. Erstanding what whats wrong with that undeding, especially when the alternative viewlling us appears to be that this courld engage in a freling balancing test. Hala, to protect an economic liberty rathan defer to state regulation on health and safety. Let me make two points, pike ly is a 1989 case. A and brown reman as 1986. These are not ancient pike is an extremelyll established. Presiden are in this t but in all courts. Thats not a question, the question is what it means, and it could either mean,at many lower court products meant. Lng at these very old, statutes, things like that. Broad, that would endow this to weigh eting does california have enough of an rest in pork, compared to lumber, ared to fireworks, ed to whatever you want to come up with. What business do we have an . That the narrow reading would not satisfy the interest of the Commerce Courts the Commerce Court is intended to prevent organization. It was a reaction to organiz rules at th of the constitutional convention. And it was intended to stop interstate strife over these sorts of rules. A narrow rule focused on going to achieve that. What were proposing, this per se rule that we are proposing we dont think its. Now we think its from the ground. Think itsfily rounded. Where is that in pike . Its involvement. With respect to price affirmation and price fixing . Price affirmation ca conceivably be an appropriate limitation in this role because it does not achieve what the Commerce Clause is supposed to achieve. Let me ask you this. Let me ask you how it w you say california could banned pork . Yes. Why does that affect your state commerce . It does affected. But the difference between a ba is that once bands arecommonplace. Their instate focus. All they do is reduce thesize of the market for out of state businesses. Its very different from conditioning a sale on the precise way that and out of statebusiness conducts itself. Butesumably the reason why out of state businesses care about changing production methods is that those production meods will be more costly. And if you are inking about product would be the greatest cost of all. So why would you divide the world in that ay. Were not only talking about costs, wre talking about the impact on state where the business is located. O, iowa only has 00 it has a great interest and how the cows are housed and what california is doing essentially trampling on iowas abilityto say no, your farmers re cost related. Terest that is look, we think that is sufficient and we dont want to do anything more expensive. Its not cost e, it could be morally related. Californias moral ion, moral view that should not be kept this way. It could be matched an iowa by saying the most important thing about house is producing the question from iowa i its an important question. You are making this incredibly costly for us. I dont see how you say thats unlikely. If california can tels and i will have to raise their cows, then iowa can take the moral position, the most important moral thing to do here is to see people onable cost by raising cows using the 350 are suggesting we decide this case on the promise that the interests at stake in iowa and among pork rmrs have nothing to do wit costs . No, t scientists deci this on the basis that i was views on how porc be raised, how are those, are just as whately as calia. But why . I, mean i knoth you dismiss the moral objeon. And i will put it aside. But we scientists the point out there are genuine scientific reasons for th raising of pigs. And your complaint says something ent. But some people reasonably believe that close confinement for from animals increases the likelihood of new diseases emming to humans from animals. Or vice versa. We know that is happening. I also reasonable to think that reducing close ement of pigs may reduce the use of antibiotics icks. Thus reducing the delment of antibiotic resistant bacteria. And, something that the us gestation crate to increase the pre of diseases and pi whats. That carr through two time of slaughter. I know youre gonna tell me theres no scientific proof. But there is certainly a reasonable basis for these people to think we dont think theres a reble basis. Our veterinarians whants as we here are the motion to dismiss. Theres been no opportunity to test these propositions. Thank you counsel. Mr. Er . Oh, im sorry. Juscelito . I think you touched on this in your final comments. Let me make sure about it. Most of your argument seems to be arguing the merits of the extra territoriality arguments and thepike balancing argument to a lesser extent is that the question we have . Here this is supposed to apply . Rd we are well, we have to plausibly allege that tht e sufficient basisfor our legal client. Have to house extra territoriality and one based on pike. We think we have easily pled both an extra territorial regulation and a significant burden oninterstate commerce. D at that point the state has to show th it has good reas for these rules. That whole process has curtailed by the dismissal. We should get a remount in order to make our case. U are cited factual allegations in the amicus briefs submitted inpport of californ. Certainly those t serious consideration. I was any of at evidence in e record here . Think we should be entitled the judgment matter of law, agency ha been proven in the agricultural department. Y looked at the line concluded that the confinement standards, which is what 12 is, confinement standards, are notsed on certificate stific literature. To reduce human foodborne or other when they realized that that was a litigation issue, and they tried to clawed back, the beey could come up with was this. Thatcalifornia voters but it was notunreasonable for them to adopt this law as, a, quote reutionary measure to address anypotential threats. That isnot enough under pike or are extra territoriality to justify a law that has massive effects on interstate commerce. Thank you. Counsel, your complaint acknowledges that pph one 60, consdemand has led roughly 28 opork industry. Not que third, but thats a very high percentage. To convert from dual gestation to Group Housing. To meet the consumer demand, 28 of the try already must be able to trace its pork meat to how indil pigs were housed. Consumer demands it. We have marketed already pork mark organic, cage free, antibiotic, free and raisd agonist equate . I know what that means. I know its fair. Ive seen it in supermarkets. Some tracing is already happening. This is already recognized in your complaint, with all due respect, you taout two different things. 28 of the market uses Group Housing after confirmation of pregnancy. Most critical period for the iual confinement, which is the period after winning, youre missing my point. No but its not 28 . Let me finish question. Let me finish my qu. California is of the market. Its a huge market. But there are peo you have to concede, there are some people who heyre already labeling thems as organic or antibiotic freething free. What is the critical difference . How much o market does the producers in iowa have to control, all of it . No. Just a small part of it and why does it make a difference because no one is forchem to sell to california. They could sell to any other state that they prefer to sell to. Nationwide, 13,500 pigs are slaughtered each that comply or t comply to prop 12. Californiamade 65,000 pigs a day to sfy. So those people are going to go without pork . Half 1 million pigs are slaughtered in thee every day. What is organic, 12 is a tiny on. But it still answered my question. Is the line that we . To say that this is impermissibtrol by californias when its giving oice to say, sell my way, or dont sell my way. If you want to sell my way you can sell here. Because ifu, dont sell in new york. We think ole to vibe frdwin, own, is the one that i have expressed. That violates the Commerce Clause toondition instate sales on out of e producers operating icular way. And ers very good reason for. That the reasons for the adoption o commerce cls in the first. Imposing its philosophical views in other s. And to avoid ling on the sovereign prerogative of other states. A rule like th does all of those. Justice . Moment to ditch the extraor a, territoriality argument. And just go to pike balancing. At would your position sound like . That prop 12 has a significant effect on interstate commerce. That essentially what, will happen is as weve explained in the grief, that farmers w have any choice, use farmers but to adopt this form of the farmers dont know where the meat from the offspring they sell is going. Im sorry . And on the other side . Theres a balance. And california, we think, has given up its claim to genuine safety ratio but that would be a matter for ou saying california has no distinctly moral erest here . It has a interest that it can satisfy instate. Conditions, at it, by thes conditioning sail from what is done elsewhere. Within pikes balance, there is a bit of a per se rule of its which is the moral interest cann justify conduct out of state is that the idea . That is an essential feature of our horizontal federalist system. Each state is sovereign with its own territory. The reason this its brought in is because the framers were concerned about the balktion that arises when st again, just to make sure i understand the position. You are sayingcalifornia could adopt a complete ban on product, under your initial territoriality rule. Also under pike. T cant do what californias doing. Theres other things that can do. They mentionedlabeling. Labeling is probably San Francisco requires a label on meet, disclosin what seems to regulate out of state conduct. Do i, mean labels we put on instate, but its reallyjust a question of putting a stamp on a package. Itssomething i think its trivial. It allows californians not to beicit. If didnt want to be complicit and raise import the way that raise, it they have the information in front of the mother or not they can buy. It thank you. Whether to pay 8 a pound for pork, or 5 25 a pound, at whole foods, or 5 25 a pound for atwalmart. Just a followup on jus kagans line ofquestioning, where we laid out the cost benefits in our balancing test youre asking us to do. Isnt thatjust a form of enshrining non to cooley he other ways in which the preventing the balkanization trembling the states territorial sovereignty. That the doctr is supposed to protect against, the other sources in the constitution, in e clause has been interpreted the export and import clause. Has been interpreted to apply only to foreign trade. Maybe they got a lot wrong in the court, under the claws congress doesnt have a True Authority under state commerce. Okay, a line of question. Sorr i just want to respect others time. Interstate commerce, i wouldve thought from an antitrust mt, we wouldnt be concerned about protecting be concerned about protectingd consumers at the end of the day. In a similar analysis, it might apply here, it seems to me, alleges harm to large pork producers in certain places, who would have differently secreting out pieces of pork that, i understand whats clear to me is what you ausibly allege, harm to competition or harm to interstate commerce itself. We have other pork producers who say thhappy to step into the board that your f dont wish to fill, and to segregate out pork purdue is saying that. We also have one of you members attesting that prices will not increase to consumers outside of california, be they wont bear it. We have econ saying the same thing. Cultural eists, so in what ways have you plausibly alleged harm to interstate commerce or consumers, rather than to ur member firms . We are here on motion to dismiss. What we have alleg is, first of, all the prices cannot be contained. Y the time the farmer raises the, cow it doesntknow where six monthr, the pork is going to be. We sell everythingexcept the owing, that is thephrase. The blood, the, hair the collagen, everything is sold. T is sold around the world in response. Every piece of that peco going to bear thecost, the signifcost of raising pork the way that california demands. After they hear ana mark it, and even farms, which part ofpurdue. These are tiny tinyrtions. 500 pigs a day sorted all around the country compared to the 500,000 that are soldby the 350 Million People in this country with reasonably priced pork. So this not, and we would proven trial, this is not something you suddenly adapt to. Mrs. Calvin . We have over interpreted the calvin clause. You could not correct that without correctin historical under interpretation perhaps of the export im clause and the privileges clause. Justice selena wrote about the wrote about the privileges and yes, it is just too late, maybe you cant do one withoutlate, seems to me, or else you are yes, there are very few deeply entrenched principles in the amer constitution, going back to cooley. The point here is the principle behind it is embedded in our constitution, even if mislabeled, you can jus oh lets get rid of all those cases because the mislabeled without thinking about the other clauses. Exactly, your honor, and second, there are a lot of farreaching arguments in this case. It seems to me picking on Justice Alitos question, pike is a longstanding precedent. You have complaints alleges the claim under pike that, i would, say it is the easiest way to resolve this for now. And we can deal with t farreaching arguments he road. But dont think yesterday already that role is all about what happens out of state. Thank you. Im going to ask you about ploratory lucky. Can you tell me what you and ju kagan that the labeling wouldnt matter . If it is a percent role that you cant control whaing on in other states, you said, well, its just and significant. But wouldnt be percent role, the principal still apply . I dont think so. I think the point is important. It does have to be a real impact on commerce. Almost always with an extra Territorial Law is. But we would be down saying it. This goes to thequestion, what exactly is a principle you articulating here . Production is coming out of, states if it doesgo in a significant way . It is a tool. It is impossible. What doesnt the labeling . That label it doesnt affect the way our operation is right, at was the picks race. If you have to put enable, on all you have to do is pu a label on. This does not complied with prop 12, this wasraised with 24 p it is a factual statement. Weigh it in. Ll in heaven to but let me shiftgears and just ask a different question, also about extra territoriality. It seems to me, you know,d Justice Gorsuch was pointing out the slot of cases. He bottom line is point was the idea of what constituted interscommerce was very different back then. Thnes dont exist anymore. These three cases are in the present context. Its to meet you are asking for an extension ofthose. I get that you can drop the principl but would still be an extension. Im wond california has higher emissions standards on automobiles than any other state. Is that . Alse absolutely not. Ts entirely have iver from the federal Government Commission and california has however for that. What if they didnt . I understand california has electric vehicles out take the well i guess what im saying Justice Kagan gave you the example of the fire would envy pesticide. Hey have a waiver about emissions, fine. There me many, many state territoriality, outside of the territory, and the way that you are seeing isimpermissible. So this would have farreaching consequences . No. Two examples. I there is the role you have electricity and colorado, you have uy 20 of the powe from wable sources. Penty of it has an important safety impact and colorado. Universal. Nywhere, is but those roles are not going to fall. Its not a role the seventh circuit considered in regard to pers. Indiana, on vy rational, told Vape Companies y how they have operate ey want to sell into indiana. Not cases like this in the books. There are cases like baldwin and brown form an coburn, whe very on point. Because by far is o papers, where the seventh circuit me just ask. Much time. Nt to take up too i want to ask one last clarifyingquestion. In your interchange with ice kagan today, if understand you, right when you say that morals when you are doin pike balancing, cant count as a state interest . Because if they could, th the common natil market texas could say you have tose certify that ever was produced by local residents. Oregon could say, unless you provide particular health care, were not going to bottoms products. Okay, thank. You Justice Jackson . I have one set of questions aboutextraterritorial any. One quicklyout pike balancing. You said repeatedly think, that extra territoriality is about theburden. Am i right about . Ths about a rule that you want us to establish . Its related the burden part of the pike balancing . Didntyou say . That extra territoriality is a shortcut. Yes, for establi a. Britain but i think the problem you might have is if thats the case then you are about to lose the benefit of a percent role, or a bright light because, as Justice Kagan pointed, out the burden might vary depending on whether its that you can have a per se role that relates to the effect, e then weve got to figure out how much control. How significant is this reion . As opposed to the roles in, or if you weigh in which they will play out an brown and healy, where it was about the nature he regulation, not a fact. So at war that you really are ta about a percent, role its more always as Justice Barrett pointed out, really a balancing. Iis a percent role. It does have a per se test, which is that if youcannot condition ends that sells on out state changesin business operations. If you do that, then, you look at what thestate rationale is on theother side. But always, because a rule like that, hasone goal. And that is controlling cond right, but itsnot about the degree of control. Just you do that kind of myother set of questions is about the pike balance. Let meask you. Pikeif instead of banningnder salesbased on morality erns, or whatever else, california allowed the sales but require thepark to be you said a couple oftimes you sugg that labeling was fine . Labeling is fine. It happens all the time. You walkinto the market, organicis labeled its fine, let me just ask youto write a little bit im wondering whether the problemis that pike balancing might notbe nuanced enough. Justice gorsuchggests weve got tohe balancing,and thats a problem, but it seems to me that the pike balancing has the court looking on the one hand to the en, on the other hand o the benefits, but notwhether there is a way to achieve thatbenefit in a less burdensome way. Nd so i would wonder, wants is it now stands, whether it needs to be corrected, to allow for anassessment of a states a morality booster, for example, that it considers it e a benefit. Do courts,or should courts, analyz whether or not that benefit d be achieved and atlasburg some way . Burdensome factor andpike had self. The pike test ends with asking goals could be promoted as well with a lesser pact on commerce. So there isa least restrictive me test to e pike test. Morality should not be t of. It because we live in a very divition. Right, but why not . Mty is just, as Justice Sotomayor says, animal are. Really believe that animals shou be kicked in pa this way. Why couldnt that be a reason the stat says any animals that come from iowa we are going to label noncompliant to our moral views about this should be done . Labeling ca acquired. But it would bebased on morality. Its just the way in which they are eving that state is ctly entitled to enforce its moral instate. That what justice experimentation, the state can experiment as muchas that like. They compete laboratories, but the atoris the state. Thank you. Nk y, counsel. Mr. Chief justice, and may i plee court. Taking thelegations, of the complaint is, true proficie 12 sales n is invalid under pack because it im i south ral burden on state come of that servinggnificant local public interest. Rop 12 poses a tribe area basedon conduct beyond californiasr. Itiled to respect the tonomy of californiastore states. It invites conflict and retaliation threatens peopnnection of the national omic union. Californias disagreementth the matter and which picks our a states interest in identa. The health and safety of it residents cantsupport the state law, if that look unrest is substantial andat white by its effect on commerce. Ut the states here have taken the position of dent 12 does not rest on any finding of the petitioners also alleged prop 12 does ssentially advance such interest. The judgment of the court of appeal before should be reversed on the basis of pi i welcome the courts ions. Can you circle ckr avoid this m completely by heaven national legislation. And you would simply have a preemption issue. Congress could certainly act in this field. I would pot, for example, National Meat inspection act regulates labeg. Labeling has to be approved by usda. The content of the labeling could be localized, coul national. In fact, usda has appr labels such as catch fr proposition 12 compliant. But it es an explanation of what that means, er to have the consuderstand. So the states interest and allowing its citizens to exercise their not to get morally complicit if an individual consumer believes that, it is furthered by the label in provisions that usda has approvedill be prepared to approve. Nadler, you mentioned the state interest in health and safety. Does that extent tomorrow values of the sbeyond the state can nly have moral interest on moral values for elimination for regulating conduct within the state. But the question, with respect the raising of picks and other st how the issue should be weighed there is againstmic against countervai interests on behalf of the pigs. Its something that state should regulate, not california. Unrelated here is a totally you cant sel in california, unless you have a certain amount of Energy Related at some leve whatever, something totally unrelated eggs. T all . Right i would think. Not i would think that under pike ncing, there would basis for imposing such ae burden the legitimate basis is not some i think a moral objection in other words state is trying to drive condun the other states, but without any connection to particular industries or activities. Well i think that if it is trying to regulate conduct in other states, weather related or not related, where it nt have a concrete on the nd scientific basis, and the case of health and welfare, pike balancing, whether it is unrelated or related issue abroad. The court m this point in baldwin, when it said, in responding to the argument, run in vermont are notarms are adequate. The court said, if tner of farms being operated in vermont is deficient, thats up the legislature of vermont, not of new york. The case is that you cite moequently in your brief, or you at lease a lot, i think can be distinguished on the grounds that te dealing with the arteries of coce. You have to change the length he truck, off the trucks interact with the movement of commerce, as opposed to production. Is that a fair distincti a number of those, i think its particularly s but part of the reason that is so is because a limitation on truck length or untrained length or on mud flaps inevitably has the effec of controlling conduct and another st because changes will have to be made at the border or before the regional thats what i suggest you are maybe of reading. Its you will and inevitably have a but the court has not limited its pike balancing, for example. In fact, cardona is sizing a case that is the morale much of ba which has to do with the restriction on milk produced out of state. It threaten the export of a product out of the state and i had the effect on interstate commerce that was not a channel of commerce and with a pressing issue. The courtheld that it was an impermissible basisfor the state among other things, excuse me, for the locality to regulate the disposition of waste because of concerns about environmental impacts in other state. That would be for the other state to determine, not the city of clarks town that is involved in car bone. Under pike, do you think that states safetyinterests are treated differently from itsmoral interests . Yes, because if themoral st is theral interest in obje to the way they conducted a careers in other states, because there has to a concrete evidence showinga instate tangible s. Forexample, the directorof the state agency involved here, while acknowledging there is no scientifis for this as a matter of safety or th, still, californias citizens might benefit knowing that the pigs cong into the state een humanely handled in the waycalifornia considers standard. Nia does the distinction realy , because part of californias argument, and part of the recent white voters and california adopted this ision was to avoid the feeling of moral complicity that they would experience if ey consumes, if they purchased and consumed, pork that have been produced and what they regarded as an ne way. So in the case, if the fork if the park presents a safety problem, i expect the people of rnia would experience, if they it is moral danger that they dont want to incur. Well, as i was explaining before, t labeling alternative. Pike has been pointed out, it ntains less restrictive mains, sort of standards or safety valves. Labeling allows those citizens ifornia who want to avoid purchasing park because believe they would be morally compt and conduct that they think is improper in another state, it enables them to do so. So it is tailored to the interest in allowing individual citizens and california to exerse their moral choice. Just to take an extreme example of this, mr. Nadler, suppose we imagine ourselves back in the slavery days. Would hit have been permissible for a state to havesaid we are not to traffic products produced by slavery. I think the logic of our position would say is, but that was at a much earlier time, and now we have the 13th amendment. That would prohibit but that conduct is prohibited in the state where it occur this isthe important thing to nize. Right, it was damaging ourselack into it world where it wasnt. But i take the point. How about, you know, you have also stotal product bans ar permissible. Ut some total product bans are based on moral feelings or even feelings of discussed, like a ban onhorse meat. There is nothing dangerous about eating horse meat. People in iceland do it all the time. It is the take, disgust effect. Theyre a moral factor. So could i state not do a ban on horse meat . Of course a state acting within its ownterritory can act onl or other basis. Lot of lows have moral pinning. This isa ban on the importat horse meet for sale. Well i think,on the premise thatre explaining it. It would bea total ban on horse meat because they have ts yucky to write, but its a moral the people who aregoing to be affected are all of these out of statuces and horse people. There is that general effect on commerceand their respect. But i think the important distinction the states treatment andtion is focused on conduct within the state. There willbe no horse meet in this state. There wont be the sale of harassment, just as there would be this out of park produced an strument way. Iguess i just dont really tand the distinction. T seems like thecrater includes theater. But there are situations in which the crer does not include the lesser. Im trying to figure out what this is one of them. I think one of the important one is the into theCommerce Clause, whether its a trying to ess into that commerce as opposed to domestic issue. And this case turned on the effect that the product was used in a certainway out of state and then brought into the state. T is interstate commerce. Regulating the production or the consumption a product within the state, that is not that is not regulating into commerce. It may have anddental effect on cameras because people wont ship the state anymore, but the important thing is if regulating within the states, its a valid state interest. T when it comes to mo judgment, the state make moral judgment for its own le, but when itcomes to content and another state, that for that state decide. A lot of can be explained or deed based on moral determinations. Minimum wage laws, for le. Court could not limit the a importods from another state onground that the workers were not paid a certain amount, or i would say, well the house and the pigs here if california objected to the importation of pecause the workers who worked at the pig fa not house properly. That would be w to, because thld be be wasting telephone law on a another state is proper or not. Can ik a question . I understood focus on dismiss and say, weed to reach t extrarritoriality point. The way youre describing pike balancing response to justagans question seems like it very much rporates extra territoriality into the analysis because your ers have been very focused on the fact that californias trying to do something to reach outside of its borders d regulate conduct in iowa. T benefit would we get from considering that part of pike balancing rather than commerce ause . Well,think the point i was making actually fit on to both sides he pike balancing. E bouncing, when it comes to enacting statesinterests, the court saidhas to be a legitimate al public interest. And california does have a noticeable interest in california. And conduct thats occurring elsewhere. So, point i made about outside their state, its int that respect. B also in california, virtue of the ban, uding products from other s. That is a pretty direct inquisition on interstate commerce that is cting trade barrier by saying, its not a tariff because its but its exclude new produc altogether bye avenue of a self ban. Justice kagans example of just banning horse meat altogether, its like that would be a trade barrier as right . Its basis t a trade its basis , this product was prodout of state and its coming in state. Its base is entirely on the consumption or sale within thee state. General is really a line that can draw . Totally based on the states particular circumstance. He like, in both ca the horse meat is not coming in use Justice Kagans an. In scenario one, say the says, we dont way horse meat because, you know, the science and such, thdont like horse meat a we are not you say thats okay. Even though it has impa from all the horse farmround the country. But in scenario f the state says, we dont like the horse me because of way the horses were raised in kentucky, that is not okayim just wondering ifs something that we can really take account of in a reasonable, you k of way. We are not proposing a per se rule. We be this case should be decided under pike balancing. Even pike balancing, how draw the line betw those two scenarios, based solely on whether the state is saying, we like it because of thin which these animals were raise versus, we dont like it because we think the anim are going to harm our people . Again, i think its the reflects the horizontald i federalism that is spread throughout the constit california has to respect the autonomy of its states. Its sister states y to regulate conduct within its borders and if kentucky thinks th a particular method of raising horses it is okay, that is up to kentucky. The horizontal ferism and autonomy the states a california, for example, t say, we dont want meat and our state at all. Irrespective of interstate commerce and in that situ doesnt turn on, its operative, its operation does not turn on interstate commerce. And it doesnt turn on the effects. The effect is identical in both places, in terms of the, you know, burden on the people who would otherwise sell into the state, but thats not a critical piece in the total ban, its an incidental effect on our state people, where the law itself turns on the fact, the matter in which it was produced out of state. Then that brings interstate commerce into it and that raises the pike issue. Justice thomas, Justice Alito . Yes, excuse me, chief. Mr. Li, will this law apply to rk that shift into the United States from canada and mexico . Yes. Does the United States have any decision on whether regulating that is consistent with federal treaties law . Second system with nafta. I dont know t answer to that, i dont know if the government has taken a po on that, but nafta and other ade agreements are examples of concerns about trade restrictions that are not price based. We think the Commerce Clause so should not be price based, for similar reasons. I know th unfair, so you can just tell me that if not within the argument, the percentages, but could california ban the import from mexico, or canada, of any products that were not produced a factory that complies with environmental laws . As i said, no, i dont think so. That would raise questions of a foreign Commerce Clause and me of the issues that this court has considered before with respect to a state regulating with respect to ings that happened in a former foreign country, if there is an Additional Co under our constitutional the dor Commerce Clause applies foreign commerce. Do you think there sbe heightened standards . It would be er to, for a, state to satisfy, to survive Commerce Clause challenge when challenge concerns interests international erce. I think there may well be. In fact, if a state law is expressly directed at interstate commerce and its ling out, not interstate, foreign commerce, singling out foreign commerce. Special treatment which i think under the constitution and under the frameworks of intent would be a serious problem. Mr. Sotomayor . Mr. Nadler, if the did not claim that thee these facing and separation problems y could do the tracing, could do the separation, what do you still say there was a substantial burden on interstate commerce . And why . Our position does not turn on whether a product can be raised. Our product turns into the fact that the conduct on the floor ould have to be changed to mply. So, any cost is a financial burden on interstate ce . No, i mean, under pike balancing, if theres, legitimate local public terest, that would prevail unless so, you are asking to do what Justice Gorsuch thinks, gi moral objection, and eightdollar increase in production, the balance then goesagainst the law . Well, i think there would to get there becauseif thehave burd trivial, wouldnt be brought, but it m not bea cognizable claim. Any of our faces are pike, even in an you point to one were just increased coughs he created an objectionable interstateheard . Well, the court in pike itselfdiscuss the fact that the reent there would effectively publish a requirementon the company to build a warehouse for 200,000 in arizona in, order to able to shipcantaloupes out of st there have been other sions, some of the other, i think, several other cases have focus on cars. Give me that line, explain it to me. Ow much cost . Ithink its difficult to quantify, but let memake that importnter season point. Coughs are a manifestati burdens on interstate commerce. When California Law requires in terms of regulating interstate erce why do we let consumers do it . Sorry . Why do we let consumer demand do it . Changes in production. Uiring , as i say, the state, producers c voluntarily do that. Theycan ship their product into california, s i say, they can voluntarily do, that under the state regun. They can choose you or not choose california market or can say in. But i think that that would prove far too much because if preventing the shipment of a product from one state to another, the ship or in the other state can always sa wont ship there. I will just trade here. Thats not an answer to the Commerce Clause thats concerned about a National Economic n, not concerned wi vulcanization an respect for horizontal auy of the respective states. I also want to point out youve answered my qstion, thank you. Ju mr. Neater, maybe a misunderstanding, but your argument here today seems stronger than their argument in the br i just want to say why i think that and haveu respond to it. Had understood in yours that you are putting a lot of on the that this is in the pleadings stage and you were just sa look, the pleatin requirements have been satisfied, we should go on and do t hd work at su judgment, or a tr or something. If i uand your answers to of these questions, i honestly dont uand how you think califoould win. At summagment or a trial. So, i guess my quesn to you is, is that fair . Is yourment basically, california cant win . And if not, what ld say to win. Well, fi all, her brief made two po about the asserted local interests of lifornia. Whether with respect to the moral interest speed, like a pretty clearly said, califs moral opposition, philosal opposition count. Cant count. This question was your answer to Justice Sotomayor,. On the one hand you say the there is then the health and we havent really talked about that much. But then answering Justice Sotomayor, you said, it really doe matter if the traditions are rbout the tracing and about, you know, whether they couldgate different kinds of products. That just doesnt matter because thersort of c, an effect on product processes. Suppose that gets into Justice Barretts comments that is just getting to sound a more per se. I didnt mean that costs are irrelev i think costs are an important factor under pike bo and across at least jurors that are elledge are substantial. But i also think the alleged are ntial because commissioner bishop has this point about the difficulty of segregation, given the nature of the indus if that turns out not to be true, does california then when . Can califoran when . Theres still the cause of the individual part produ having to reconfigure their firms. And so, the ability to trade is only part of the question. There ar allegations and declarations may expanding to 24 feet or group pens rather than individual. The adverse effects that may have on both the productivity and the health of the fouls, when there are a lot of competing consideraons. I want to be fair to say should lose this case . Lifornia on whether their health andon safety rationale wou prevail. The fact that calia has not relied on that the plausible allegations we think, d the complaint, do require that the plaintiffs be given a ance to present their case. But this statute is also ual in that its trying to project californias lo other states, which, for example, carbon. Not just bourbon. Thats the problem. Justice gorsuch . Thank you. Mr. Nadler, you place a lot of stress on the fact that there will be increased cost to certain producers out of state. What if all of those costs are borne by california consumers, who are willing to pay hier price for certain kinds of product. Planet with their moms. D in t is there any reason, would that pose a problem . Under your the lets say all of the costs are boring by california i dont think, excuse me, i think in the main that pike analysis would turn on how the costs played out. I mean, for example, youve got thats the case, then this is really an argument about protecting certain modes of production by certain manufacturers from out of state. Play out even if som otherrke persons might come into the market or might already be in the market to fill that need at a higher price, we still have an interstate commerce problem. First point i wantmake is a tariff might decrease the costs and consumers in california might be willing to pay,. But that doesnt render it okay under thecommerce laws. I just want to understand your argument. All the costs of this law, alld of it, its still a problem. Yes because again california is, s instance,is regulating conduct as iunderstand californias position charitably, its that californians,63 of them, voted for this law. Hey dont wish to have californiawe complicit, even indirectly, inlivestock practices that they find abhorrent. Wherever they occur in california or anywhereelse. Why isnt that a correct understanding of californias sort of moralinterest . And why isnt that an in state interests . First of all its individuals whodinarily have moral ctions d on, lets put that aside then. A state canact a law regulatnduct within the state on thebasis of morals. Wecan put that aside. But when it comes to conduct outside the state, that would openhuge invitation and i think greatly undermined the Commerce Clause because a lot of regulation can bescribed it with prs are in california, this law would be okay. Its just because picked ers are by and large mostly out ofstate that this poses a problem . California hasindependently imposed an pork production i understand that. Answer uestion, if you will. If pork producers in state, this law wou okay. Its just because theyreout of state that it poses a pr yes. If thats the case, again, why is it on charitable . Why is in uncharitable suggestion try to regulate out of state conduct when might just be seeing, we dont to participate in this at all, wherever it occurs . Whether its slavery orhorse feed, or pick production. I that is, you know, i think that there are ain interest in the end. What im saying isthat the Commerce Clause and our system of horizontal ralism generally cany not allow for that use it would create the very nization of not just commercial reon, but retaliatory commercial regulation between states. As one state tries mit sales and sales are a way of regulating, a way of ting by prohibiting sales in the state state where it was produced in the way they dont agree wi produced by union labor, ed by non union , produced not paying a sufficient minimum not paying e for milk, th not disposing of their waist in a way that an acting state finds reasonable. All those could be described in moral terms. The Justice Kavanaugh . O questions. One, the flipside of justice omass question. If cos and the president agreedilifornias moral judgment, could they pass a w regulating how pigs our house, at least pigs that arolved in the interstate market . Sure. Can definitely do that. Second, you saw this law unusual. Can you elaborate on that . How unusual is i from the perspectf the United States, concerned about how useful it would be c californias law is upheld . I think there would be a concern about invitate laws regulating co in another state. The fact that itne through sale is outriohibition, this court made a simila point in the National Meat asson case ten years ago, the preemption case, where the court said, california could implement its pref policies with respect to pork houses by making the regulation on sales rather n a provision. So, the locas cant be enough to justify the actio so, what we have here is basically an attemp california to regulate whats happening in other state and as i said, that is a proposition that once unleashed would be to contain. Justice barrett . Final question, mr. Na i asked mr. Bishop how many laws this might affect if we said that it was not permissible, the salre the extra territoriality princ or the pike balancing, how many other laws would fall that might affect . He said california, as i understood, in the state california is having tried to do this. You are talking what might happen in the future if we allowed california to do it, opening up a can of worms of retaliation. What about the question i asked mr. Bishop . Are there other laws like this that really the case . You know, just give given the example pesticide and the treatment of firewood. I mean, what we have to worry about calling into ques lot of lies that are pretty common . No, i donthk so. With respect to the specific conduct, contactse, there are states that band raising pigs that are using just station lets say. Most of those just limited to the state whee pigs are being raised. Massachusetts also has t extra ban. But in other cases, for exampl in a firewood case, state a legitimate interest, unlike here. We think on the moral basis, has a legitimate interest in otecting against the entry of firewood if there are pests in there that might, in fact all the cases that youre aware of, that wo normal safety and Health Professionals rather than more legislation . Weak effort in moral they would be judged unde pike balancing and if there is a legitimate state interest, and there wasnt a less invasive way to control the problem, then the state may well be able to do that. Protect against the country of products into the state. Thats what pike bouncing is four and the way we think the court should decide the case. Justice jackson . Mr. Mueller, youve sa couple times that the Commerce Clause doesnt offer what it is that california is doing in this situation. To me and i know that you have been trying to disclaim any reliance on the sort of extraterritorial principles that you say we d proceed under pike balancing. But i also hear you making a claim that soundse like an extra territorialitnciple. Can you just focus your attention on that for a second . I think that the petitioners have actually introduced two different kinds of extra territoriality principles. In their brief, they say that the rules should be the state not acting laws that have a practical effect in withholding conduct and i worried about that when i read tef because the extent were talking about effects, it introduces all kinds of questions of how much, how significant doesnt sound like a bright line rule anymore, to me. But here today, the petitioners kind of move away a little bit from the controlling effect idea and they say, the state rule should be essentially focused on the natu the regulation that the state law, that condition sales on out of state busi operating in a certain way is the principal. Thats the one that you seem to be agreeing with. To the extent that you say that the problem is that a state who has a morality interest cant havea morality interest that is directed at the manner in whicther state is conducting its business or other businesses are operating. Why is it that the same thing, that the petitioners are saying with respect to their extra territoriality principle and therefore doesnt the goent agree with him . Well, with respect to a regulation like this,when it saysowing california to do what its doing would be a serious problem iwas focusing on tral justification, which is a philosophical political disagreement with whats happening in other states, which we think is t the useful language ofpike. A local interest of califo isnt that the same thing youre seeing when he says this is the place where i think the two arguments might converge. And infact, in this courts position the court said that the Commerce Clause has two prinprohibitions, prohibitionagainst discrimiand a prohibition against undo these are exceptions are variations the extraterritorially principle, as it becomes stronger in a caseke this, puttinlth and safety on one side, could be seen as an independentargument, which is they petitioners are pres, it and simplya particularly strong n of pike balancing where youre comparing the effect interstate commerce since what under this rationale, its an insubstantial or not a significant state interests . An, counsel general manga . Mr. Chief justice, proposition 12 guard the instate sale of Certain Court products. California voters ch to local interest refusing to provid a Market Product they viewed as morally objectionable and potentially unsafe. The Commerce Clause does not prohibit that choice. Prop 12 is not protectionist or discriminatory, it doesnt implicate the rule involved when it doesnt l prices in other states, and it doesnt violate the general principle aga regulating holy extraterritorial commerce. That princas not been understood to bar states from setting standards w the goods sold within their borders are manufactured or produced. States routinely act that of law and Justice Barrett, at least 24 states done so to serve local moral interests. Sales restris often have upstream out of state effects. But theyre permissible as long sales focuses on the actual ess for producing the goods sold in the regulating states. In this case, prop 12 restrictions a tied to the production process for lifornia bound pork. The only address the particular that are literally the pork and the market th the pion process is a sis for differentiating between ps. Thats why source cell grade three port. The prop 12 places no restriction on how our citizens of produce port for sale and show that producers cantions continue selling fork to other states using different production methods. If petit think prop wealth raises policy concern, the solution the framers provided was for them to ask ngress to regulate under the express form of the commerce laws, not for courts to expand the dormant Commerce Clause. Mr. Mungen, doesnt matter whether or not you focus rely on the upstream effects . If thats the point of the legislation as opposed to a collateral effect of you legislation. Your honor, what matt is whether the state is regulating with respect to the goods sold within its borders and setting production standards, manufacturing standards, those goods. So, it doesnt matter that the purpose could be to have the upstream effect . Well, your honor, i think in this case and what will often be the case is these laws are ivated by in state, local interests. And here, there are two interests that were reflected in the ballot material. One of them is a local interest. The stat not wanting its sourd markets to be complicit in selling a product that a substantial majority of the voters do view as a moral. Many consumers and retailers as well, as evidenced by the to create free pork. How far would you carry that . Other than beyond the health and safetyconcerns that you might have here. S a moral concerns, could it extend to a state that has, for example, different political ews on certain issues that areimportant to hear voters . I dont think so, your honor. If im understanding the etical correctly. So, for example, if estate were to bar the importation ofgoods from another state, because that state hasa particular policy, that would be a facially discriminatory law. It would be equivalen to an embargoand that is the ant Commerce Clause problem. Its quite different from a ral in state sales restrictionof the type which ite common across the country. T allows all producers to freely compete so long as they produce goods thatsatisfy the mr. Mungen, a lot of policy disputes can be incorporated into like yours. O, mr. Mueller gave example of the field, you know . One california you have to bepro labor and teasan do laws saying pro labor union, texas kandulas at say, you have to be anti labor unou know . Closed shop, open shop. You could have states making immigraon policy, essentially, through these laws. You could have states doing a wideriety of things through the mechanism ofying, well, unless comply,u cannot sell goods in our market. , you know, we live in divided country and the vulcanizationat the framers were concerned about is surely present today and i think that the real power of mr. Nadlers examplesre, you know, do we want to live in a world where were tantly at each otr throats . Know, texas is at war with california, and californias at war with texas. Right, i certainly understand ncern, your honor. I think there is and should be a constitutional check on , which is that a state regu of a product has be sufficiently tied to the process of ucing that product. And i thint of the hypotheticals that my nd pointed to that youve just ed, in addition likely having some preemption problems, which im happy to speak but also deal with an in state sales condition that is not sufficiened to production. Where doeat come from . I mean, youre saying that in response to Justice Kagan. Ve said it a couple times that youve empathized this restriction on how the pork, how the are raised is tied to oduct itself. But why hat necessary . I mean, you know, ind on the other side says, well, you availability of the market to th production of Certain Health services. Could you have california pass a law that were not going to buy any pork from companies that dont require all their emp to be vaccinated . Fund gender affirming caret surgery . Whats the imnce and where does it come from if its tied to the product . So, your honor, as of those hypotheticals an if i can get back to the first part of the question, i thhose would be problematic because what you have there is a condition on te sales thats focused on a general company wide policy, with respect to all of that companys activities, wherever it does busiincluding the production of ts totally different states. Its nused on [inaudible]. ,. ,. , . ,. ,,,. ,. , . ,. ,. . . ,. ,,. ,,. . ,. ,, . , ,. ,,. ,, . ,,,. , . ,,, . , . ,. ,. ,. ,. . , . ,. ,. ,,. ,,. , . . ,, . ,,. ,. . ,,. ,. ,. . ,. ,. ,. ,. ,. , differentiating between the large number of valid instate sales restrictionsand some of the more problematic, hypothetical is thatwe have heard today. So, youre saying that its only impermissibleif its wholly extraterritorial, as identified byit being conditihats not related at all to theactual product your honor, i think thats about right. To the look out of r example friend reference in th seventh circuit. So theyou have an in state sale condition on vaping products, but the feature that most concerns the day 3 ofte talks between the ud china wrap up in beijing. As scorching temperatures sweep both china and United States. Theyok here in washington d. C. Also coming up this hour, global business. Americans continue to d despite high prices. Well lo how the Younger Generation is choosg o allocate their dollars. And artificia intelligence in the United Nations makes its first attempt at understanding how to contain the hile balancing the benefits of the a. I. Im sorry, we begin looking at day 3 aimed at, im sorry, bear with me one 2nd here, i apologize for all of this. A meeting of g20 f ministers and Central Bank Governors in the indian state of gandhi nadal hasd without a final agreement. The indiannce minister told reporters there is, quote, no common ge in the crisis in ukraine. Been made on debt restructuring r poor countries. Creditors should handle debt. And use their ten accordance with the princ of common action and fair burden. China said meanwhile over 2 days to finance chiefs also discuss performing multilateral demand meant. Banks, tech issues, cryptocurrency regulations as financing for climate change. Now it is day 3 of talks and climate cooperation between United States secret hinged on sheila has more on u. Mate on board john s visit to beijing. John kerrys 3rd visit beijing began with chinese senior diplomat, yi, where they h a nearly 2 hours earlier this morning. Said that he pushing for te cooperation. Quote, my hogs are marked with my farm identification n that premise and to be segregated from other product. From produce and create freeport. He talked about i contract for the and supply ts going to be paid a price youre going to the evidence, i thought we had the motion to distage. I understand that that might be declarations that Say Something different, but were supposed to be confined to the corners of tmplaint with respect to what is happening in this try. I certainly understand a degree with, that your honor. But i think even within the corners of the complaint, the declarations attached to the complaint in paragraph 297 to 299 acknowledge that this is feasible and available and is evd in the market, which is why we have preet freeport organic pork availablein grocery stores. Ey acknowledged to create free pork part of the industry, i think the burdenultimately, her, its one that will fall on california consumers. And thats not a burden that should heavily, at all, in any pike balancing. Suppose theport producing state and pork consuming state get matted because of this. Can they decide, okay, fine, turn around, its fair play. Going to adopt integrates concerns in t marketplace. Ne thing, is if you adopt a regulatit is just too burdensome comply with, and the industry will stop serving thestate and the state has to decide, want a regulation or do we want pork . Are youconcerned about, about this because its suchad giant that you can wield this power . Wyomingcouldnt do, it most other couldnt do it but you can doit. You can believe the other states, youre notreally that concerned about retaliation. Its a part of your position . No, your honor, thats not how bad put it. Think this is a concern held by cnia and many other states including states who are pork, producing michigan illinois, who filed that and because brief on our side. Nicholas tucker featu ofthe Sovereign Authority to control the products that are sold within our borders. One of the guments id like you to respond to, made by petitioner, big companiescan comply with this, no problem. Shut t of the market all the small companies. Youre,r if i could offer a formal se to that, focused on complaint. And more practical response. Theyve ged that, i think, the exxon case is that thatin type of concern is not thepe of burden that the dormant commer clause is concerned with. Delivery and the methods of operation in an try. I think the practical responses that thatstually not what were seeing and smaller producers can choose whether to get bstantial premium for producing thie of specialty product or create freepo continueoducing for other states, 49 other states, exactly as many of their own members thplai acknowledges ha decided to do. Justice thomas . J kagan . Justice goch . Do you accept pike as a president of this court or are you aski r it to be overruled . Not asking for to be overruled, your honor. Thank Justice Barrett . Justice jackson . Thank you counsel. 12 has a tradition that has beenrespected for nium, theyreconsuming me is a product of and will cruelty itself immoral. California chose to rig its market that there was a moral products and the hiding that revolutionary women in a closet is simply an affirmative grant ofauthority to congress. They did they impose more demanding health and safety proof environments. I welcome the courts questions. Counsel, how broadly would you de whats immoral . Your honorthink when it comes to the product, you would at the closeness of the relationship between the regulatio and the product itself. In this case, theyery you can look at three considerations in parti first, the market distinguishes between these cts. They distinguish and regulas well. Between quake raised pork that is inhumd humanely raised pork. I mean the term, the definition of the term immoral. A immoral. I think in l, id be my second considerations. One of the s it might look at was whether the states traditional s regulation. You try to think russia product from being morth is a moral. And here, hically bound. Major religions, that theyve reconid for millennia that products cimmoral because theyre a product of animal cruelty, in particular for food. That o of the features we we also look at whether the market gnized existing prodased on their morality. And the markre, regulators here, distinguish huy humanely raised pork. T from Companies Like, that if Companies Like from burger king to woods that make that distinction. Regulators make the distinti. Usdasf f i. S. Regulates labels. You are suggesting that the distinction is universally held and if it wereould think the market would have already accounted for it every the problem, as i hear your friend saying, that iowa, for example, rees. Iowa does not believe that port is being i dont know what iowa actually believes, but assume we have a state that thinks it is not a moral to hold their house in a particular way. To what extent does califor get to control what iowa with respect to the housing its pork . It does not. The question in this ca who decides that appears on california Grocery Sales t approved by california. When anothete has a lesser standard, its a d by california crucia cells . Why ca solve its california morality issue in a dint way. If it assumes that its gonna california to ban all iowa pork on the grounds that california disagrees with how iowa produces pork, why shouldnt the ballidies be to simply allow california to express its morality interest through a less burdensome means like segregating i was pork when it comes in, putting a big label over it that says this is and that wont hurt iowa asr. Much. Why cant we say thats the way they should be . I shbe clear, if it were a different between iowa pork, and other, pork it would be discriminatory. It doesnto distinguish between inhumane. Pork all right, fine, atever the distinction is, the question is, why does california get to ban it when it has all of the implications on commerce with respect to the supply chain . Why is the solution that california just gets to nounce. Theres answer into parts. The first is california has an inter in banning a moral products its own markets. It doesnt serve that in to say, well, put labels. On it because it hasnt been from the market. Why do they ban . It is not just not trust california consumers . If they agree, right, there a problem earlier a how do we know how many cors agree or disagree with the morainterest . But in the best be served where we would know based on labeling it. And if it doesnt get sold, than there we. Are well it still leaves fornias market available for products that californ has deemed immoral. Californias oer interests, which is ensuring that of all lifornians have access to morally acce pork, even if they dont have the resources, they dont havehe luxury of studying labels or going to the whole foods market. This ensures that all pork, in california, meets a certain level of moral sensibility. Can i ask you about moral . Im sorry to interrupt. Our time is ru. Out you told us that the ition of moral, youre saying to Justice Jackson, things about californias moral, terest you told Justice Thomas that your definif morality would be rooted in cultural traditions, tha sort of thing. Is your suggestion that states can only regulate based on moral . It sounds like the due process clause . It is supported by history and traditions of american people, but other kinds of moral edgy or new ones would not be permissible . No, and i think what youre asking is the next question the court would ask you. About when youre asking if california is regulating th or if its so divorce from thea, nature of the product, the regulation, what it is doin reaching across the line and attempting to control something that is fully out of state. Which, my, do i dont think is the Commerce Clause because telephony, for example, couldnt regulate high sc curriculums in texas. Even it has nothing to do with commerce. When youre making that, distinction you look at the oseness between if its somehow immoral, things you would look at it is the, market regulatory stinctions. Which is priceless isolate the case. Here you look e distinction between two rooted historical distinctions. We understand that our food, moral or immoral, based on whether its a product of animal cruelty. Might look at heer or not its a common feature to a state law, and for example, nine states from louisiana to nevada, to virginia, the instate sales of cosmetics tested animals. I dont tand a distinction you are drawing between regulations that go the nature of the product and regulations that control the way in which the product is produced. Put aside the healt issues, the sake of argument that pork produced in the way i mostly produced, is just as safe as pork produced in accordance with californi regulations. If you analyze the pork, to porch, ops one is made one way, one is produced another way, the product is exactly the same. Your honor, how the product is produced and whether it is done in human fashion does distinguish the product. Consumers recoghe difference. United states of america recognizes a difference. It bans blood diamonds, come but not ordinary diamonds. Weve banne things that are made by slaves. I just dont understand how gonna draw distinction the tween the California Law, for example, the law that says you cancel product interstate if it was produced by workers who did have the right to work. I prevent the state from banning a prod that grounds when you have alternative. The answer is the st just like the United States, re allowed to say certain products have a factoto them that renders them immoral. They deny access to the market. In other words weve d a lot about morality. People insome states, maybe the one produce a lot of pork north carolina, indiana, they think th a cost source of protein toa low people, ma particularly at times of rising prices. But under your sis, it is californias view of morality that prs over the views of people inr states. Because of market powerat they have, so isnt that consideration we should take into effect . In analyzing this . If more of al use onna be significants economic. Once why is that something th we should be sensitive to under congress law . It states that they ca do that in their own state. T a law that is only consumed in the state of california. But the reason they have this law isse they dont have pork produn california. So nois hurt from that point ew. And to they want to affect conduct in other states. They pork producers in iowa and noarolina and indiana to have to produce pork the way theyant them to. Not to sell them the wey want twn pork producers to they dont have very many producers. First, exxon makes clear that what th Commerce Clause protects is intee commerce, not particular methods of production or orgaion of industry. That makes sense. If what matters here, and what the Commerce Clause is, the instrumentality of mos in interstate co. Once you move to protect the methods of production and the cost of prod, you have now moved to affecting commerce in a wicker and versus philippine kind a way that stdoesnt have a role macomb to cutting off authority. If we st making those judgments thisurt puts itself back in the role of ing to decide, how good is the states limit. Is there another state limit. Cifrnia does something only for within california. Thank you. [inaudible] health and safety aspects of your claim . Absolutely not. You said all of your argument on the moral issue. E product of having ten minutes. Th and safety, the key pois that its a huge burden under the they have to show that its not ble, not arguable that there is health andsafety interest here. The complaint doesnt come close to beating. That because first, it admits right at the outset,it admits that there is stalking density, in condensed confinement,rrelates with higher salmonella rate for growing pigs. Theo reason to think thats irratio when you talk about growing pigs styles. They can in the mechanism ch its a huge heal impact. Confinement, causes suppress not just he adult but the piglets. Its a rational for caia theyre entitled calif has no rational basis for thkg it has an effect, it ds not come close. There is a burden of price under to get past the comp stage. And that is that you have to show you are plausibly enti to release. The entitled to release, here the petitions need to show that is not arguable to the how the fact. They dont come close, your honor. Mr. Lincoln, i gus what troubles me is that this is a pleading staged case. So assume that moral interests count in the anal im not saying im nrily thinking, thathelets assume. It lets assume that moral interest can extend beyo labeling. The people can say, labeling is not enough. We actually want to prevent those people from eating this produc regardless whether they know what it is. So moral interest count extends beyond ng, still, you have this complaint which alleges and then whatever you want to say. On the other, hand you have a complaint that alleges great costs to the pork farmers outside of californmost all of whom are outside of california. And the en industry. I take, m mgens point, that its considerably more nuanced than the brief in this case. But you could imagi t complaint that basically made the points in the brief, could imagine the pork producers amending their mr. Bishops brief then theike complaint that they actually wrote. And in that case, what do we have to say . Okay, this is the plating stage. Pike balancing. It is very hard. What exactly are we balancing . These immeasura things . That is what our doctrine indicates should happen. So, somebody shouo that balancing. All righ i think there are o. Points the first is that i dont think they could well, second inthere is a number they come back to this, point which is what they houses lets actual a assout hercomplaint. Not a better complete just assume a stronger complaint. R exxon makes clear the methods of operation are not what the commerce cost protects. The fact that costs might go up for prod is divorced from the Commerce Clause itself which is the interstate movement of goods. Can you have thaait . That and you say im worriedrom about hh it costs to make the another states who now stepped away from the core laws, the trails of commerce in the instrumentality of commerce. You are now e land of, this is something that affects mmerce. It affects commerce in by the. Way thats just too far. The negati implication from constitution puts a limit what the state authorities can. I think exxon that quite clear. But even apart from that, the allegations lets look at this case, both sides want to exclude things from ke analysis. Right . Mr. Bishop wants to exclu our moral interests. And you want t exclude a world of economic harms, because you think that is not really what the Commerce Clause is all about. Isnt pike saying that you gets t throw them all in the mix and its really hard but somebody has to make the judgment . And it has not been made yet in this case. I think that exxon made that judgment that you do not say maybe expenses a force and ybody who is and go out of state. Operation. S restructuri no, ireland has to make the determination that they do not want the rioters to be operating gasquet shunts. Likewise, here, california gets to make the judgment withi states. It may drive up costs for caia. Serving california and payingre more thatst more for them but that simply on affecting co trouble thing. Commerce problem. Terstate it is an effective commerce problem i do not think the court should be in the middle of that sort o determination. From a negativ implication to an affirmative grant. But here under twombly he says your rationality is and your dream is to make economics. I have to comport with common with california being 13 of the market, it does not comport i do not think tha generals attempt to distinguish prop 12 from other policy conditions works at all. E are nothing that distshes prop 12 from a lawthat says you cannot sell y food the state unless it is produced by workers. Eht minimum wage, certain medical care,ose are all conditio directly relates the production of theproduct. Which comes out of stateand i have no definition of attenuating which is workable. Wh asked to the courtsto interstate market looks like. If californian condition sales on it moralor policy andery other state can do th same. W be back to the preconvention picture ere you have vulcanized markets. 450 paragraph complaint. Sted by declarations which say that there are immense costs involved e industry. Immerm to pigs it will result from complying with prop 12 and no safety benefit. Have a dozen pork farmers in the court todaywho tested of the trial. And testify that they are being forced by distributors and retailers to colwith proper 12 in a way that they think tours pigs. The harms their workers and makes it extremely difficult for them to upade their farms in the way that they think is efficient and safe for workers and pigs. And we believe that we are entitled to a trial to show that. T