By Mike Dorf
As reported on HuffPo over the weekend, a group of 14 law professors (including Prof. Colb and me) recently sent a letter to key members of Congress sounding the alarm about a provision of the pending House version of the Farm Bill, originally proposed as an amendment by Iowa Rep. Steve King (R), supposedly in response to a California measure governing the treatment of hens who produce eggs for sale in that state. What does the provision say? Here, look for yourself:
The letter makes several objections, among them that the King Amendment has a much wider sweep than simply targeting California's Prop 2 and related legislation (which regulate the eggs that can be sold in California). The letter also notes that the King Amendment is so poorly worded that as a literal matter it would prevent a state from regulating the production of any agricultural product--even in its own state--if any state in the Union does not regulate that product as strictly.
I think that's probably not the best reading of the King Amendment (although a textualist-minded court might disagree), but even the most likely alternative reading is highly problematic. The alternative reading would say that a state may regulate production of an agricultural product in that state but may not impose the same conditions on similar products from out of state, even if they are offered for sale in the importing state.
Rep. King has asserted that the King Amendment merely "clarifies and reaffirms" what he describes as a background constitutional principle forbidding states to regulate extraterritorially. But if he believes that, he either doesn't understand his own provision or doesn't understand the background law. It's true that a state cannot regulate wholly extraterritorial conduct, but every state has long had the authority to regulate the sale of products within the state, even if in doing so it uses as its regulatory criterion matters that occur in another state--so long as it does not violate the Dormant Commerce Clause.
Let me give an example of a state law that would clearly be valid under the Dormant Commerce Clause but invalid under the King Amendment. Suppose that a certain kind of mushroom is potentially toxic if it is not treated in a particular way while it is growing, so State X has a law banning the sale of that kind of mushroom unless it has been treated that way while growing. It is quite clear that this law would not violate the dormant Commerce Clause because it is neither discriminatory nor does it pose an "undue burden" on interstate commerce, in light of the health benefits of the regulation. So State X would ordinarily be permitted to apply the law to ban the sale of untreated mushrooms coming from State Y, which, by hypothesis, has no such law. Rep. King's provision does not "clarify" or "reaffirm" anything. It imposes a dramatic new limitation on each state's ability to protect the health and welfare of its citizens.
Is the King Amendment constitutional? Maybe. Certainly, there is federal power under the Commerce Clause to preempt much if not all state law governing the sale and production of agricultural products. But the King Amendment is not a straightforward federal preemption provision. It also tells states that their laws are, in some circumstances, preempted by the laws of their sister states. Is that permissible?
Some years ago I wrote a law review article addressing the circumstances under which one polity may validly "dynamically incorporate" the law of another polity--including some discussion of federal laws that dynamically incorporate state laws. (By "dynamic" incorporation, I mean that when the law of the incorporated jurisdiction changes, the law of the incorporating jurisdiction automatically changes as well.) There are many examples of federal law dynamically incorporating state law, typically but not always as a matter of common law doctrine. So--although my article identifies genuine policy costs that arise out of dynamic incorporation--this sort of vertical dynamic incorporation (a kind of delegation downward) is not per se forbidden.
Thus it might be thought that the King Amendment, if read in the narrower (but still quite sweeping) way I have described just above, would be valid as a combination of the federal power to preempt legislation combined with the federal power to dynamically incorporate state law. That is plausible, I admit, although it's a sufficiently novel form of federal legislation that I could also see a court finding it invalid as an unprecedented intrusion on state sovereignty. Moreover, even when two elements of a law are each individually constitutional, their combination may be unconstitutional. (An example from the Dormant Commerce Clause context is the combination of a permissible discriminatory subsidy with a permissible non-discriminatory tax: the combination of these two permissible laws was held unconstitutional in the West Lynn Creamery case.) In any event, even if the King Amendment is constitutional, it is so destabilizing of state regulatory authority, that it ought to be rejected on policy grounds--especially by lawmakers who care about federalism (and to their credit, some Repubicans have taken a stand against the King Amendment on just that basis).
Finally, although I was asked to sign the letter opposing the King Amendment because of my views about how humans treat other animals, my main concern is actually the legal form the provision uses and its implications for federalism generally. Indeed, as I have noted previously, I am ambivalent about many state animal welfare laws. I do not oppose them, but I doubt that they do much good and worry that some of them may even be counterproductive: by falsely assuring consumers that the animal foods they eat are the product of humane practices, animal welfare laws may entrench rather than dislodge existing practices and preferences (although as I noted last week, this is a complex empirical question). The main point here, though, is that whatever one thinks about animal welfare laws, the King Amendment goes well beyond that topic and does so in a very bad way.