https://www.wsj.com/articles/judge-ketanji-brown-jacksons-regulatory-red-meat-usda-american-meat-institute-11648071674?mod=opinion_lead_pos3
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.
