Who should the Solicitor General of the United States support in the Proposition 12 dispute that is currently before the U.S. Supreme Court?  Sometimes called the 10th Justice, the solicitor general’s opinion sometimes has an influence on the Court.

The United States solicitor general represents the federal government before the U.S. Supreme Court.

Among those who believe it’s better to have the Solicitor General on their side are Senators Dianne Feinstein, D-CA, Alex Padilla, D-CA, Cory Booker, D-NJ, and 13 other senators, who’ve asked  Solicitor General Elizabeth Prelogar to support California’s Proposition 12 before the U.S. Supreme Court.

Proposition 12  bans the sales of pork, eggs, and veal products bred in tight quarters at locations both inside and outside of the  State of  California. The National Pork Producers Council and the American Farm Bureau Federation say the Prop 13 restrictions on out-of-state farms are unconstitutional.

That assertion is why the Supreme Court granted the Pork Producers and Farm Bureau a writ of certiorari for High Court review of the case. The Senators sought the Solicitor’s support in a letter.

 “We write to urge you to support California’s Proposition 12, which is intended to prevent animal cruelty, protect the health and safety of California consumers, and decrease the risk of foodborne illness, when it comes before the Supreme Court. As you know, on March 28, 2022, the Supreme Court agreed to hear National Pork Producers Council v. Ross, a challenge to California’s Proposition 12 that sets humane standards for farm animal products sold in California.

“We believe that the previous administration’s position on Proposition 12 was based on a misconception of the law. As is stated in the ballot measure text itself, the purpose of California’s Proposition 12 was not only to improve animal welfare but to ‘phase out extreme methods of farm animal confinement, which also threaten the health and safety of California consumers and increase the risk of foodborne illness and associated negative fiscal impacts on the State of California.’ Notably, although the basis for Proposition 12 is scientifically validated, existing case law (Maine v. Taylor, 477 U.S. 131, 148; 1986) also empowers states to address risks even though they “may ultimately prove to be negligible.”

“Expanding the Commerce Clause as the National Pork Producers Council (NPPC) seeks to do in this case would have ramifications far beyond the pork, egg, and veal industries. Proposition 12 only regulates in-state sales of egg, pork, and veal products and does not regulate out-of-state producers, but the NPPC’s argument claims a state law is unconstitutional any time it could indirectly cause businesses to adjust out-of-state operations. If adopted, this ruling could allow large, multi-state corporations to evade numerous state laws that focus on harms to their constituents, including those addressing wildlife trafficking, climate change, renewable energy, stolen property trafficking, and labor abuses.

In addition to  Feinstein, Padilla, and Booker, the letter was signed by Senators Debbie Stabenow, D-MI, Tammy Duckworth, D-IL, Brian Schatz, D-HI, Edward J. Markey, D-MA, Richard Blumenthal, D-CT, Elizabeth Warren, D-MA, Bernie Sanders, I-VT, Gary Peters, D-MI, Ron Wyden, D-OR, Chris Van Hollen, D-MD, Bob Menendez, D-NJ, Patrick Leahy, D-VT, and Jeff Merkley, D-OR.

Prelogar is a former Miss Idaho who began taking college courses at Boise State University at age 12. She studied at Harvard Law School and earned a Juris Doctor manga cum laude in 2008.  She was acting solicitor general prior to her permanent appointment.

California, which consumes 13 percent of the nation’s pork production through interconnected national markets, only houses about 0.2 percent of the nation’s breeding sows.

Twenty state governments, 14 business and farm associations from outside California, The Canadian Pork Council, and the National Association of Manufacturers want to keep Prop 12 from applying to areas outside the state.

California voters overwhelmingly approved it in 2018, but it did not become fully effective until this year.

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