I’ve never met a chicken that knew much about the U.S. Constitution, but over the years chickens have managed to get themselves mixed up in more than their fair share of debates over what the Constitution says and means.

Back in the 1930s, it was a case involving the sale of diseased chickens in Brooklyn that led the U.S. Supreme Court to invalidate the most important parts of Franklin D. Roosevelt’s early New Deal. More recently, there have been disputes in every region of the country over the constitutional rights of homeowners to keep poultry in their backyards against neighbors’ wishes. Now there’s a full-dress constitutional debate about the conditions under which chickens and other animals are raised and the authority of states to decide when those conditions should be considered inhumane.

The current legal debate actually goes back a decade, to a ballot measure in California mandating that any chicken raised commercially in the state had to have enough room to lie down, stand up, turn around and extend its limbs. It was an easy winner at the polls. California poultry farmers didn’t like it, but most of them accepted it. What really made the industry mad was a law passed by the legislature two years later, in 2010. This law took the whole issue national: It prohibited the sale in California of eggs produced anywhere in the country under conditions that didn’t meet its humaneness test.

Although the law was phased in gradually, it hit growers hard in states such as Iowa, Missouri and Nebraska, which produce a majority of the eggs that California stores sell. Iowa alone was the source of nearly a third of the eggs imported into California each year. So six of the egg-producing states got together and sued California, using an old warhorse of an argument. They invoked Article 1, Section 8, Clause 3 of the Constitution: the Commerce Clause.

That’s the part of the Constitution that basically says that Congress possesses the power to regulate commerce among the states. The egg-producing states argued that only Congress had the right to do this -- no state had any business telling another state what its farmers could sell across state lines.

It was an intriguing argument, but the court didn’t buy it. A three-judge panel of the 9th Circuit Court of Appeals in San Francisco ruled in 2016 that it wasn’t the states that were being harmed by the California laws -- it was individual farmers. The farmers could bring suit if they wanted to. Until then, there was nothing to talk about.

But that decision has emboldened animal rights activists in other parts of the country. In November 2016, voters in Massachusetts were presented with a ballot measure tougher than California’s. It banned the sale of eggs from animals in any state “confined in a cruel manner.” That could be read to mean no chickens in cages, which is where most farmers in this country still raise them. And it applied the strict rules not just to poultry, but to pigs and calves as well. This broadened the scope of the opposition. Opponents of this measure said it would not only raise prices but also deprive Massachusetts consumers of badly needed protein. They said farmers knew better than activists what was best for the animals. That argument got them nowhere. The measure passed.

This brings us to the present, and to the challenge to both the California and Massachusetts laws that critics hope to take to the U.S. Supreme Court. Thirteen states are parties to the challenge. They claim that the California laws have cost consumers in the state $350 million in higher egg prices and that the Massachusetts law will have a similar effect.

In the end, it’s the same approach that didn’t work the first time around. The Supreme Court declined to take up the appeal of that decision. Still, it’s always possible that a more conservative Supreme Court might be more congenial to the argument than a liberal appeals panel in San Francisco was. We’ll see.

While this moves forward, animal rights activists are taking another shot at California. Spearheaded by the Humane Society of the United States, they have launched an initiative for this November’s state ballot that bars cruelty to any farm animals, including chickens, pigs and calves. At the moment, it’s legal in California to keep these animals in a crate or cage as long as it meets minimum size standards. This measure would end that practice everywhere in the state by 2021. 

 

In many ways, it’s the return of the Commerce Clause that’s the most striking element in all this maneuvering. The clause is a piece of constitutional India rubber that can be stretched as far as any clever litigant in any particular decade is willing to stretch it to please the justices of the moment.

In the early years of the republic, the Supreme Court read the clause as a broad grant of power to the federal government. “The power of Congress,” Chief Justice John Marshall wrote, “does not stop at the jurisdictional lines of the several states.” Later in the 19th century, the tide turned. Conservative Supreme Court majorities blocked the federal government from intruding on state commerce jurisdiction.

In those days, and well into the 20th century, it was conservatives who wanted to keep the federal commerce power on a short leash. They achieved that in Schechter Poultry Corp. v. United States, with the Supreme Court holding in 1935 that the Roosevelt administration lacked the legal authority to regulate the price of chickens raised and sold in New York state or to punish poultry dealers who sold inferior chickens. None of the Schechter animals were marketed outside the state, and the court decreed that the Commerce Clause, plainly written to govern commerce “among the several states,” simply didn’t apply. The decision knocked out the whole scheme of price and wage regulation that had been the core of New Deal policy up until then.

That state of affairs didn’t last long, however. Within a couple of years, a more liberal Supreme Court was giving the federal government carte blanche to use the Commerce Clause any way it wanted: to regulate economic activity even if the interstate connection was flimsy and even if the activity barely constituted commerce in any meaningful sense.

And so we went through about half a century in which the Commerce Clause was essentially a loophole for liberal activism. Conservatives didn’t like that, but there was little they could do about it. That changed slightly in 1995, when the court surprised legal scholars by actually finding something the clause didn’t permit: federal regulation of guns on school property. Gun ownership, according to Chief Justice William Rehnquist, didn’t fall within the sphere of commerce. Congress couldn’t use the Commerce Clause to deal with it.

The clause was breathing again -- but not all that lustily. In 2005, the court found that while guns in schoolyards might not be part of interstate commerce, marijuana grown in someone’s backyard was, even when it was grown entirely for local use. It was held to be fair game for the feds.

Justice Clarence Thomas was the most vocal dissenter in the marijuana case, and has been the most insistent voice arguing that the anti-New Deal justices had it right all along. The Commerce Clause wasn’t supposed to be a free pass for federal activism. “If Congress can regulate this under the Commerce Clause,” Thomas wrote, “then it can regulate virtually anything … quilting bees, clothes drives and potluck suppers.” 

That’s about where we stand as the chickens return to the stage -- except for one rather intriguing irony. For just about all of the past century, conservatives have wanted to rein in the Commerce Clause to control the excesses of the federal government. Now the egg plaintiffs want to use the feds to counter the liberal initiatives of the states. They want the Supreme Court to rule that the federal government not only has the authority to regulate commerce among the states -- it has the exclusive authority. “No state has the right to dictate how other states choose to regulate business opportunities and manufacturing processes within their own borders,” says Indiana Attorney General Curtis Hill, a Republican who is one of the leaders on the plaintiffs’ side.

The Humane Society dismisses the current challenge to the California and Massachusetts laws as a “legal Hail Mary,” even if it has 13 states behind it. But a number of nonpartisan observers are beginning to take the challenge more seriously. “If you read what the Commerce Clause actually says,” Purdue University economist Jayson Lusk told me, “this could be a violation of it.”

But if the legal technicalities of egg regulation are a bit abstruse, the politics of the issue are not. Given an opportunity to vote for almost any proposition that promotes humane treatment of animals, the public will buy it. The original egg regulation initiative, in California in 2008, got 63 percent of the vote. The one in Massachusetts in 2016 got 78 percent. “Voters tend to look at them favorably if they are framed as anti-cruelty,” Lusk says. ”I don’t know if one’s ever been defeated.”

The courts may not be a high-percentage option for the chicken-and-egg people at this point. But they may be the only option.