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Legal Challenge to Massachusetts Housing Ballot Restrictions


On November 6th 2016, Massachusetts voters adopted Question #3 in a ballot which passed by a 3 to 1 margin. The measure closely followed  California Proposition #2 enacted in November 2008 placing restrictions on housing of poultry and livestock. `The law restricted not only Massachusetts producers from confining livestock according to specifications but as with California AB 1347 enacted in 2009, prevented the sale of veal, pork, and eggs not produced in conformity with Massachusetts regulations.


A brief petitioning the U.S. Supreme Court to review the constitutionality of Massachusetts Question #3 was filed on Wednesday December 19th. The petitioners in the case include the Attorneys General of 13 states.  At issue is the Commerce Clause of the Constitution that denies states the right to impose restrictions on interstate transport of goods.


According to an article by Daniel Flynn in the December 21st edition of the American Spectator, the brief requests the Court to intervene to prevent Massachusetts from imposing restrictions on the petitioning states and also “to resolve the broader question of where the Commerce Clause permits states to close their markets to products created under disfavored conditions having no relation to the quality of the product itself.”


Gary Baise an attorney representing Protect the Harvest, a nonprofit dedicated to support the freedom of consumers and livestock producers, regards the Massachusetts law as unconstitutional.  Quoted in The American Spectator article he stated, “In 1787, we were an agricultural society.  The Commerce Clause countered the states putting up barriers and we created a national free-trade zone.


What remain to be seen is whether the Supreme Court will issue an opinion concerning their willingness to hear the case that has been litigated without resolution in lower courts.