Fear of a Supreme Court review of California’s Proposition 12 has set the state’s congressional Democrats on a different strategy. They want to recall the amicus curiae briefs the federal government dropped last year in North American Meat Institute v. Becerra in the Supreme Court and National Pork Producers  Council v.  Ross in the Ninth Circuit.

And in a letter to Secretary of Agriculture Tom Vilsack and Attorney General Merrick Garland, California congressional Democrats said they want the Biden Administration to tell the Supreme Court that it should not take up the appeal of the case.

“Prompt withdrawal of these briefs is imperative as they directly undermine decades of federalism and constitutional law precedent that preserves the states’ power to serve as laboratories of democracy, whether they can advance new politics to protect their citizens,” says the letter.

A petition for certiorari from the North American Meat Institute is currently pending in the Supreme Court, challenging the constitutionality of Prop 12. Amicus curiae briefs supporting NSMI were filed in March by 20 states.

The states said there are constitutional questions that cry out for an answer from the high court. A big  question is:

“Whether the Constitution permits California to extend its police powers beyond its territorial borders by banning the sale of wholesome pork and veal products imported into California unless out-of-state farmers restructure their facilities to meet animal-confinement standards dictated by California.”

If approved, Prop 12 would dictate confinement rules for animals outside  California by prohibiting the sale of their products from any states that do not follow its ways. A U.S. district court and the 9th U.S. Circuit Court of appeals upheld Prop 12.

The  Ninth Circuit ruled that California may regulate “extraterritorial commercial conduct so long as it does not use price-control or price-affirmation statutes.” The 20 states filing the amici say the 9th’s ruling “is wrong” and “presents an issue of enormous doctrinal and practical importance.” 

“The court’s precedents squarely establish that the Commerce Clause prohibits states from directly regulating any commercial conduct — not merely pricing — that occurs entirely in other states,” the state’s brief says.

“The Ninth Circuit’s contrary decision here departs not only from those precedents but also from the decisions of five other federal circuit courts. And this lopsided circuit split means most states are at a regulatory disadvantage compared to the states of the Ninth Circuit. The decision below therefore not only threatens economic balkanization among States but also upends the fundamental principle of equal state sovereignty. “

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Editor’s note: This story was updated to clarify when the amicus curiae briefs were filed.