Judge Ketanji Brown Jackson’s Regulatory Red Meat The Supreme Court nominee’s ruling in a USDA case misapplied the law and bowed to regulators.
Judge Ketanji Brown Jackson has been less expansive even than most Supreme Court nominees this week as she faces the Senate. She says she has a judicial “methodology” but not a philosophy, and her record as a judge is thin. But one case that offers some insight is her 2013 ruling as a trial judge upholding a U.S. Department of Agriculture country-of-origin rule for meat.
Congress in 2008 required grocery stores to provide country-of-origin information on meat and directed the USDA to write the regulation. The purpose was to promote U.S. livestock. USDA required meat to be labeled with the countries where the animal was born, raised and slaughtered. It also barred processors from “commingling” meat from different countries—a common industry practice of mixing animals from different producers together for slaughter and packaging—in the name of simplifying its labeling regime.
The American Meat Institute (AMI v. USDA) contended that the rule violated the First Amendment and Administrative Procedure Act. Under the Supreme Court’s Zauderer precedent, the government may require companies to disclose “purely factual and uncontroversial information” in advertising to prevent consumer deception. But the USDA rule didn’t apply to advertising and wasn’t needed to prevent consumer deception.
Judge Jackson nonetheless accepted the policy purpose that the USDA put forth only after it was sued: that the rule would prevent consumer confusion and correct misleading speech. In doing so, she misapplied the Supreme Court’s precedent on commercial speech and administrative law, which doesn’t allow regulators to provide post-hoc explanations after being sued.
She also ruled the USDA could ban commingling meat though Congress didn’t authorize it. The absence of the word “commingling” from the text, she wrote, “renders doubtful Plaintiffs’ assertion that Congress clearly intended to address, and to protect, the practice.” In other words, if Congress doesn’t explicitly forbid regulators from doing something, they can do it.
A panel on the D.C. Circuit Court of Appeals went further by declaring that the government can compel businesses to disclose any purely factual information so long as it serves a reasonable government purpose. This is an extremely permissive standard.
The D.C. Circuit also ruled for the USDA en banc without addressing the commingling issue. Brett Kavanaugh, then a circuit judge, showed his populist streak by concurring in the judgment, noting the agency’s long history of supporting American industry through country-of-origin labeling. It was probably his worst opinion as a circuit judge.
A separate D.C. Circuit panel later repudiated the AMI logic in blocking a Securities and Exchange Commission conflict-minerals disclosure rule in 2015. This means the appellate court has competing opinions on the standard to use in reviewing rules that compel commercial speech.
The issue will be litigated again as the SEC seeks to force public companies to report climate and other ESG (environmental, social and governance) information, and the Supreme Court may be asked to weigh in.
Maybe a Senator should ask Judge Jackson what she thinks the standard should be. In any case, her AMI opinion suggests she’d give liberal rein to regulators.
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