On December 19, 2017 and June 9, 2018, we blogged about the challenges 13 states had launched against California’s minimum space requirements for egg-laying hens. They also challenged a similar law in Massachusetts.  The petition sought leave to challenge those requirements via an action in the Supreme Court under the Court’s original jurisdiction.

On May 29, 2018, and June 20, 2018, we blogged about the challenges to California’s ban on traditionally produced foie gras, in which several producers asked the Court to grant a petition for certiorari. In both cases, the Court asked for the views of the Solicitor General.  In both cases, the SG sided with California.

In the egg case, petitioners argued that (a) the Egg Products Inspection Act (EPIA) preempted the state laws at issue; and (b) that California and Massachusetts were violating the dormant commerce clause by attempting to regulate economic activity in other states.

The SG’s principal argument was that the Court should exercise its discretion to decline an original action. The Court rarely exercises such jurisdiction, he argued, and the grounds set forth by the plaintiffs here did not satisfy the requirements for original jurisdiction.

The first ground was that the states and their citizens were forced to pay higher prices for eggs as a result of California’s space requirements. The SG argued that, because many other factors affect the price of eggs, this injury was not sufficiently direct.  The second ground was that federalism concerns were core sovereign issues.  The SG retorted that the Court had never held that such interests, standing alone, warranted the exercise of original jurisdiction.  The third ground was that allowing California egg inspectors to inspect egg farms in other states infringed their sovereignty.  The SG argued that no such concerns existed if the owners of the farms invited the inspection so they could legally sell in California.

Separately, the SG argued that an action in the district court would be a much superior alternative to an original action in the Supreme Court. The states and their egg farmers would have standing to file such a suit.  And the complex and difficult factual issues surrounding the dormant commerce clause claim could be much more easily addressed by a court that regularly dealt with fact finding.

The SG did briefly argue that the EPIA did not preempt California’s egg law, but that argument was very much of an afterthought.

In the foie gras case, petitioners argued that the federal Poultry Products Inspection Act (PPIA) preempted California’s ban on foie gas produced by force-feeding. The PPIA prohibits states from imposing different or additional requirements on “ingredients” in poultry.  The SG argues that the word refers to the physical or chemical properties of the food, whereas California only regulates a method by which the product is produced.  The producers argued that the effect of that regulation would be to ban all types of foie gras.  The SG responded that nothing in the record suggests that force-feeding is necessary to produce foie gras.

The SG acknowledged that the issue would be closer if, in fact, force-feeding was the only way to produce foie gras. As we previously explained, the Court had held that the National Meat Inspection Act (NMIA), which contains a preemption provision almost identical to that in the PPIA, did preempt a California statute that banned the slighter of certain kinds of cattle.  Given the absence of evidence that only force-feeding could produce foie gras, the Court did not need to answer that hypothetical.

The SG argued that the NMIA did not control this case, even though the wording is the same, because its prior ruling dealt with a different part of the NMIA. The SG gave similarly short shrift to petitioners’ other preemption arguments.

Given the deference that the Court affords the SG, his position on both cases does not augur well for success.