Under the guise of a health and safety rationale, a recent trend has seen individual states regulating aspects of agricultural production in a way that applies equally to products produced in state and out of state. These regulations, such as labelling laws and animal welfare restrictions, apply to products sold in the state enacting the regulation. But the regulations also have a much broader impact on the industry that extends beyond the borders of that state.
The dormant Commerce Clause doctrine has long prohibited regulation that burdens interstate commerce. The history of dormant Commerce Clause litigation includes challenges to regulations regarding safety features on highway vehicles, species of fish, and produce packaging. In considering these regulations, courts weigh the incidental burden on interstate commerce against the local benefit.
Both litigation, which ultimately uses the burden against benefit balancing test, and congressional action can resolve questions about the constitutionality of agricultural regulations under the Commerce Clause. Various state regulations prescribing laying hen cage sizes have provided some of the more recent opportunities for courts to conduct the balancing test; in one case, the Ninth Circuit dismissed a challenge to a California cage size law in November 2016. In contrast, a Vermont “genetically modified organism” (“GMO”) labelling law was challenged through litigation, but Congress reached a nationwide solution. This national solution preempted Vermont’s state law and reduced the burden on manufacturers by creating a uniform national standard. Because of the difficulty and expense of litigating each instance individually, resolving the constitutionality of agricultural regulations through congressional action is superior to litigating state actions. Therefore, Congress should enact legislation prohibiting states from regulating agricultural production in a way that puts an excessive burden on interstate commerce; this could be accomplished either through a specific federal law for cage sizes that would preempt state laws or a more general federal law about state regulation of products in interstate commerce.