The opinion
In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 07-2658
CAVEL INTERNATIONAL, INC., et al.,
Plaintiffs-Appellants,
v.
LISA MADIGAN, et al.,
Defendants-Appellees.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Western Division.
No. 07 C 50100—Frederick J. Kapala, Judge.
____________
ARGUED AUGUST 16, 2007—DECIDED SEPTEMBER 21, 2007
____________
Before EASTERBROOK, Chief Judge, and POSNER and
ROVNER, Circuit Judges.
POSNER, Circuit Judge. Horse meat was until recently an
accepted part of the American diet—the Harvard Faculty
Club served horse-meat steaks until the 1970s. No longer
is horse meat eaten by Americans, Christa Weil, “We Eat
Horses, Don’t We?,” New York Times, Mar. 5, 2007, p. A19,
though it is eaten by people in a number of other coun-
tries, including countries in Europe; in some countries it
is a delicacy. Meat from American horses is especially
prized because our ample grazing land enables them to eat
2 No. 07-2658
natural grasses, which enhances the flavor of their meat.
Mary Jacoby, “Why Belgians Shoot Horses in Texas For
Dining in Europe,” Wall St. J., Sept. 21, 2005, p. 1.
Cavel International, the plaintiff in this case, owns and
operates the only facility in the United States for slaugh-
tering horses. Until recently it was one of three such
facilities, but the other two, both in Texas, stopped slaugh-
tering horses after the Fifth Circuit upheld a Texas
law similar to the Illinois law challenged in this case.
Empacadora de Carnes de Fresnillo, S.A. de C.V. v. Curry,
476 F.3d 326, 336-37 (5th Cir. 2007).
Cavel’s slaughterhouse, located in DeKalb, Illinois,
near Chicago, has some sixty employees and slaughters
some 40,000 to 60,000 horses a year, out of a total of about
700,000 horses that either are killed or die of natural causes
in the United States annually. Cavel buys its horses for
about $300 apiece from brokers who obtain them at auc-
tions. The company has been in operation for 20 years
and has some $20 million in annual revenues.
Horses are the only animals that Cavel slaughters, and
it represented to us without contradiction that if it loses
this case it will have to shut down. The Texas slaughter-
houses were more eclectic—they slaughtered, besides
horses, such sources of “atypical meat products” as bison
and ostrich. But they too represented to the courts that if
forbidden to slaughter horses they would have to shut
down, though it appears that after a brief shutdown they
reopened, adding cattle to their menu, as it were. Illinois
House Bill 1711, Bill for an Act Concerning Horses, 95th
General Assembly 16 (April 18, 2007) (statement of Rep-
resentative Molaro).
In the United States, horses are killed in slaughter-
houses only when the horses’ flesh is destined for eating
No. 07-2658 3
by human beings or (a detail to be considered later) zoo
animals. The flesh of horses that is intended for pet food
is obtained from the corpses hauled to rendering plants
for disposal; the plants also produce glue and other
products from the carcasses. (All these businesses are in
terminal decline. Jeffrey McMurray, “Some Horses Left to
Starve as Market for Meat Shrivels,” Chi. Tribune, Mar. 15,
2007, p. 3.) Unlike Cavel’s slaughterhouse, a rendering
plant’s methods of producing meat from dead horses do
not have to comply with the requirements that the federal
Meat Inspection Act, 21 U.S.C. § 601, prescribes for the
production of meat, expressly including horse meat,
§§ 601(j), (w), intended for human consumption. The Act
is fully applicable to Cavel, see 21 U.S.C. § 617, even
though, because there is no U.S. domestic market for
horse meat as a human food, Cavel’s entire output is
exported to such countries as Belgium, France, and Japan.
Indeed, Cavel is the subsidiary of a Belgian company.
On May 24 of this year, the Illinois Horse Meat Act, 225
ILCS 635, was amended to make it unlawful for any person
in the state either “to slaughter a horse if that person knows
or should know that any of the horse meat will be used for
human consumption,” § 635/1.5(a), or “to import into or
export from this State, or to sell, buy, give away, hold, or
accept any horse meat if that person knows or should know
that the horse meat will be used for human consumption.”
§ 635/1.5(b). (Prior to the amendment, the statute merely
required a license to slaughter horses and imposed various
inspection, labeling, and other regulatory restrictions on
licensees. The prohibition has made these provisions
academic). Cavel claims that the amendment violates both
the federal Meat Inspection Act and the commerce
clause—the provision in Article I, section 8, of the federal
Constitution that in terms merely empowers Congress to
4 No. 07-2658
regulate interstate and foreign commerce but that has been
interpreted to limit the power of states to regulate interstate
and foreign commerce even in the absence of federal
legislation inconsistent with the state regulation. Willson v.
Black Bird Creek Marsh Co., 27 U.S. (2 Pet.) 245, 252 (1829)
(Marshall, C.J.); United Haulers Ass’n, Inc. v. Oneida-
Herkimer Solid Waste Management Authority, 127 S. Ct. 1786,
1792-93 (2007).
Cavel moved for a preliminary injunction against the
enforcement of the amendment. The district court de-
clined to issue it, on the ground that Cavel had failed to
make a strong showing that it was likely to prevail on the
merits. Cavel appealed, and we enjoined the application
of the amendment to Cavel pending our decision of its
appeal, 2007 WL 2239215 (7th Cir. July 18, 2007), Chief
Judge Easterbook dissenting.
The challenge based on the Meat Inspection Act need
detain us only briefly. Cavel points to the Act’s preemp-
tion clause—“requirements within the scope of this Act
with respect to premises, facilities and operations of any
establishment at which inspection is provided under title
I of this Act [including facilities at which horses are
slaughtered, 21 U.S.C. §§ 601(d), (j)] which are in addition
to, or different than those made under this Act may not
be imposed by any State or Territory or the District of
Columbia,” § 678—and argues that it signifies Congress’s
decision to sweep aside any state law that would render
the federal requirements inapplicable to Cavel’s slaughter-
house by forbidding horses to be slaughtered. The argu-
ment confuses a premise with a conclusion. When the
Meat Inspection Act was passed (and indeed to this day),
it was lawful in some states to produce horse meat for
human consumption, and since the federal government
No. 07-2658 5
has a legitimate interest in regulating the production of
human food whether intended for domestic consump-
tion or for export—exporting meat unfit for human con-
sumption would be highly damaging to the nation’s
foreign commerce—it was natural to make the Act ap-
plicable to horse meat. That was not a decision that
states must allow horses to be slaughtered for human
consumption. The government taxes income from gam-
bling that violates state law; that doesn’t mean the state
must permit the gambling to continue. Given that horse
meat is produced for human consumption, its produc-
tion must comply with the Meat Inspection Act. But if it
is not produced, there is nothing, so far as horse meat is
concerned, for the Act to work upon.
Of course in a literal sense a state law that shuts down
any “premises, facilities and operations of any establish-
ment at which inspection is provided” is “different” from
the federal requirements for such premises, but so literal
a reading is untenable. If despite its title the Meat Inspec-
tion Act were intended to forbid states to shut down
slaughterhouses, it would have to set forth standards
and procedures for determining whether a particular
slaughterhouse or class of slaughterhouses should be
shut down; and it does not. The Act is concerned with
inspecting premises at which meat is produced for
human consumption, see, e.g., 21 U.S.C. § 606, rather than
with preserving the production of particular types of meat
for people to eat. Empacadora de Carnes de Fresnillo, S.A.
de C.V. v. Curry, supra, 476 F.3d at 333.
The more difficult question is whether the horse-meat
amendment violates the commerce clause as interpreted to
prohibit state regulations that unduly interfere with the
foreign commerce of the United States. Cavel fastens on
6 No. 07-2658
subsection (b) of the Illinois amendment, which forbids
the importing and exporting of horse meat for human
consumption. But that provision is not addressed to Cavel;
it is addressed to a middleman who having procured horse
meat from Cavel tries to export it, or that imports horse
meat to Illinois hoping to induce Americans to eat it. (We
assume that the terms “import” and “export” refer to
bringing horse meat into Illinois from another state, or
shipping it to another state, as well as to importing
horse meat from and exporting it to a foreign country.)
The provision directed at Cavel is subsection (a), which
forbids the slaughtering of horses for human consump-
tion. If that subsection is valid, Cavel loses its case.
The clearest case of a state law that violates the com-
merce clause is a law that discriminates in favor of local
firms. E.g., Chemical Waste Management, Inc. v. Hunt, 504
U.S. 334 (1992); Bendix Autolite Corp. v. Midwesco Enterprises,
Inc., 486 U.S. 888 (1988); American Trucking Ass’ns v.
Scheiner, 483 U.S. 266 (1987); Baldwin v. G.A.F. Seelig, Inc.,
294 U.S. 511, 521-22 (1935) (Cardozo, J.). Suppose a
state passed a law that forbade the importation of wild
baitfish. That would be a discrimination against inter-
state and foreign commerce. This would not make the
law unconstitutional per se, because the state might be
able to prove that it needed the law in order to protect
“unique and fragile fisheries” from parasites prevalent in
out-of-state fisheries and that there was “no satisfactory
way to inspect shipments of live baitfish” for those
parasites—that is Maine v. Taylor, 477 U.S. 131, 141 (1986).
The case turned on factual issues of a kind that a court
can resolve without undue risk of error.
There is no discrimination in the present case insofar as
the prohibition against slaughter is concerned. If a local
firm (remember that Cavel is foreign-owned) wanted to
No. 07-2658 7
slaughter horses, it could not do so. No local merchant or
producer benefits from the ban on slaughter. Compare
Hunt v. Washington State Apple Advertising Comm’n, 432
U.S. 333 (1977), with Exxon Corp. v. Governor of Maryland,
437 U.S. 117 (1978).
The absence of outright discrimination does not termi-
nate inquiry into a possible violation of the commerce
clause. There are situations in which states by ostensibly
local regulations distort the operation of interstate markets.
An example is a severance tax on a raw material, such as
oil or coal, of which the state (perhaps in conjunction
with other states) has a monopoly or near monopoly and
which is almost entirely exported rather than consumed
locally. The incidence of the tax will fall on the con-
sumers in other states, who have no voice in the politics
of the producing state, and the result may be a level of
taxation and resulting price to consumers that greatly
exceeds the cost of the services the state provides to
producers of the raw material, and that by doing so bur-
dens the export of the raw material to other states. Or
imagine a state’s imposing onerous taxes on all trucks
that use its highways, knowing that almost all the truck
traffic originates and terminates in other states and exploit-
ing a locational monopoly to shift the costs of public
services unrelated to highway maintenance to suppliers
and consumers in other states.
Such cases present more difficult factual issues than
cases of outright discrimination. Plaintiffs have some-
times prevailed, at least if the impact on commerce is
evident. E.g., Raymond Motor Transportation, Inc. v. Rice, 434
U.S. 429 (1978); Kassel v. Consolidated Freightways Corp., 450
U.S. 662, 664 (1981); but see South Carolina State Highway
Department v. Barnwell Bros., Inc., 303 U.S. 177 (1938). But
in the case of the severance tax the “local” character of the
8 No. 07-2658
activity taxed, although it does not immunize the tax from
scrutiny, Commonwealth Edison Co. v. Montana, 453 U.S. 609,
617 (1981), causes a judicial hiccup, see id. at 618-19, even
though the incidence of the tax is not local. In this case, too,
the activity restricted by the state—the slaughter of horses
in Illinois—has a local character but primarily foreign
consequences. There can be harmful effects on free trade
among the states that do not stem from even a mild
disparity in treatment—as in this case, or the highway
cases that we cited earlier, where there is no discrimina-
tion in favor of a local supplier. But the plaintiff has a
steep hill to climb. “Where the statute regulates even-
handedly to effectuate a legitimate local public interest,
and its effects on interstate commerce are only incidental,
it will be upheld unless the burden imposed on such
commerce is clearly excessive in relation to the putative
local benefits.” Pike v. Bruce Church, Inc., 397 U.S. 137, 142
(1970) (emphasis added); see also Minnesota v. Clover Leaf
Creamery Co., 449 U.S. 456, 471-74 (1981).
We have expressed doubt that even this tough test
is available to plaintiffs unless they show at least “mild”
discrimination against interstate commerce; Pike seems to
require that at least “incidental” “effects on interstate
commerce be shown.” National Paint & Coatings Ass’n v.
City of Chicago, 45 F.3d 1124, 1131 (7th Cir. 1995); Grant’s
Dairy-Maine, LLC v. Commissioner of Maine Dep’t of Agricul-
ture, Food & Rural Resources, 232 F.3d 8, 18 (1st Cir. 2000);
Automated Salvage Transport, Inc. v. Wheelabrator Environ-
mental Systems, Inc., 155 F.3d 59, 75 (2d Cir. 1998); Instruc-
tional Systems, Inc. v. Computer Curriculum Corp., 35 F.3d
813, 825-26 (3d Cir. 1994). Some cases disagree, and take
“even-handedly” at face value, Eastern Kentucky Resources
v. Fiscal Court, 127 F.3d 532, 544-45 (6th Cir. 1997); American
Target Advertising, Inc. v. Giani, 199 F.3d 1241, 1254 (10th
No. 07-2658 9
Cir. 2000), heartened by a footnote in GMC v. Tracy, 519
U.S. 278, 299 n. 12 (1997), in which the Supreme Court
noted that “a small number of our [i.e., the Supreme
Court’s] cases have invalidated state laws under the
dormant Commerce Clause that appear to have been
genuinely nondiscriminatory, in the sense that they did
not impose disparate treatment on similarly situated in-
state and out-of-state interests, where such laws under-
mined a compelling need for national uniformity in
regulation.”
There may be no real disagreement in the case law.
National Paint & Coatings Ass’n acknowledges that even
in the absence of discrimination, a burden on interstate
commerce that had no rational justification would be
invalid. 45 F.3d at 1131. An example is the Illinois mud-
guard law invalidated in Bibb v. Navajo Freight Lines, Inc.,
359 U.S. 520 (1959). The law required all trucks in the
state, thus including those traveling interstate, to be
equipped with curved mudguards that the district court
had found not only conferred “no” safety benefits over
straight ones but actually created “hazards previously
unknown.” Id. at 525. The law impeded interstate com-
merce—though maybe local commerce just as much—and
because it lacked a rational basis it was invalid despite the
lack of proof of a disparate impact. National Paint &
Coatings Ass’n v. City of Chicago, supra, 45 F.3d at 1131;
Norfolk Southern Corp. v. Oberly, 822 F.2d 388, 404-05 (3d
Cir. 1987).
Any law, moreover, that irrationally burdens property
rights can, quite apart from the commerce clause, be
challenged as a deprivation of property without due
process of law. Lingle v. Chevron U.S.A., Inc., 544 U.S. 528,
540-45 (2005); Greater Chicago Combine & Center, Inc. v. City
of Chicago, 431 F.3d 1065, 1071-72 (7th Cir. 2005). That
10 No. 07-2658
makes us wonder just what work Pike does, but that is
not an issue we need pursue.
Cavel argues, in the spirit of Bibb, that Illinois’s ban on
slaughtering horses for human consumption serves no
purpose at all. The horses will be killed anyway when
they are too old to be useful and what difference does it
make whether they are eaten by people or by cats and
dogs? But the horse meat used in pet food is produced
by rendering plants from carcasses rather than by the
slaughter of horses, and the difference bears on the effect
of the Illinois statute. Cavel pays for horses; rendering
plants do not. If your horse dies, or if you have it
euthanized, you must pay to have it hauled to the ren-
dering plant, and you must also pay to have it euthanized
if it didn’t just die on you. So when your horse is no longer
useful to you, you have a choice between selling it for
slaughter and either keeping it until it dies or having
it killed. The option of selling the animal for slaughter
is thus financially more advantageous to the owner,
and this makes it likely that many horses (remember
that Cavel slaughters between 40,000 and 60,000 a year)
die sooner than they otherwise would because they can
be killed for their meat. States have a legitimate interest
in prolonging the lives of animals that their population
happens to like. Hughes v. Oklahoma, 441 U.S. 322, 337
(1979); cf. 7 U.S.C. § 2131; Church of the Lukumi Babalu Aye,
Inc. v. City of Hialeah, 508 U.S. 520, 538 (1993); Hoctor v. U.S.
Dept. of Agriculture, 82 F.3d 165, 168 (7th Cir. 1996). They
can ban bullfights and cockfights and the abuse and
neglect of animals.
Of course Illinois could do much more for horses than
it does—could establish old-age pastures for them, so
that they would never be killed (except by a stray cougar),
or provide them with free veterinary care. But it is permit-
No. 07-2658 11
ted to balance its interest in horses’ welfare against the
other interests of its (human) population; and it is also
permitted to take one step at a time on a road toward the
humane treatment of our fellow animals. E.g., Greater
Chicago Combine & Center, Inc. v. City of Chicago, supra, 431
F.3d at 1073; cf. Bowen v. Owens, 476 U.S. 340, 346-47 (1986);
Williamson v. Lee Optical of Oklahoma, Inc., 348 U.S. 483, 488-
89 (1955); Milner v. Apfel, 148 F.3d 812, 818-19 (7th Cir.
1998); Johnson v. Daley, 339 F.3d 582, 596 (7th Cir. 2003).
There is a wrinkle in this analysis, however, though
unremarked by the parties. Zoos feed a considerable
amount of horse meat to their charges. Brad Haynes, “Zoos
in a Pickle Over Horse Meat,” Seattle Times, Aug. 14, 2007,
http://seattletimes.nwsource.com/html/localnews/200
3835227_horsemeat14m.html (visited Sept. 18, 2007). For
living proof, we reproduce a photograph from Haynes’s
article, with its caption:
“Kwanzaa, a young South Afri-
can lion at Cameron Park Zoo
in Waco, Texas, celebrates his
birthday with a cake made
from 10 pounds of horse meat,
plus whipped cream and a
carrot.”
12 No. 07-2658
As the article explains, American zoos, seeing the hand-
writing on the wall so far as the domestic slaughter of
horses is concerned, are shifting to importing horse meat.
So the slaughter of horses will continue. For all we know,
Cavel may seek out a new market in America’s zoos. We
do not know why, with the cessation of horse slaughter-
ing at the Texas slaughterhouses, Cavel has not done so
already.
But even if no horses live longer as a result of the new
law, a state is permitted, within reason, to express disgust
at what people do with the dead, whether dead human
beings or dead animals. There would be an uproar if
restaurants in Chicago started serving cat and dog
steaks, even though millions of stray cats and dogs are
euthanized in animal shelters. A follower of John
Stuart Mill would disapprove of a law that restricted
the activities of other people (in this case not only
Cavel’s owners and employees but also its foreign con-
sumers) on the basis merely of distaste, but American
governments are not constrained by Mill’s doctrine.
The careful reader will have noted that we have so far
been discussing the legal principles governing state
burdens on interstate commerce, though the Illinois
statute burdens foreign commerce. Quite apart from
economic consequences, an interference by a state with
foreign commerce can complicate the nation’s foreign
relations, which are a monopoly of the federal govern-
ment; states are not permitted to have their own foreign
policy, their own embassies and consuls and ambassadors,
and so forth. “Foreign commerce is pre-eminently a
matter of national concern. ‘In international relations and
with respect to foreign intercourse and trade the people
of the United States act through a single government
No. 07-2658 13
with unified and adequate national power.’ Board of
Trustees v. United States, 289 U.S. 48, 59 (1933).” Japan Line,
Ltd. v. County of Los Angeles, 441 U.S. 434, 448-51 (1979); see
also Itel Containers Int’l Corp. v. Huddleston, 507 U.S. 60
(1993).
Suppose Cavel were the only source of horse meat for
human consumption in Europe and the law provoked
European governments into remonstrating with our State
Department, which in response submitted to us an amicus
curiae brief denouncing the law. See Container Corp. of
America v. Franchise Tax Board, 463 U.S. 159, 195 (1983).
True, a Japan Line challenge failed in Barclays Bank PLC v.
Franchise Tax Bd., 512 U.S. 298, 324-28 (1994), even though
a number of our trading partners complained loudly
about a state law that increased the costs to foreign com-
panies of filing U.S. tax returns. But the case was special
because Congress had repeatedly refused to grant the
relief sought by those companies. Although Congress had
not explicitly authorized the state practice, the Court
ruled that Congress’s lengthy consideration, followed
by inaction, was an implicit authorization that defeated
the commerce-clause challenge.
But assuming therefore that the doctrine of Japan Line
survives the Barclays Bank case, this cannot help Cavel,
which did not tell the district court and has not told us
what percentage of the horse meat consumed by Europeans
it supplies and thus whether its being closed down is
likely to have a big effect on the price of horse meat in
Europe. And while it is true that the foreign minister of
Belgium wrote a letter to Governor Blagojevich inquiring
about the status of the bill that became the horse-meat
amendment, he did not say that his government was
opposing the bill. So far as we know, there was no follow-
14 No. 07-2658
up (we have not been told whether the letter was
answered and if so what it said); and we have heard
nothing from any other foreign government or from the
State Department.
The curtailment of foreign commerce by the amendment
is slight and we are naturally reluctant to condemn a
state law, supported if somewhat tenuously by a legiti-
mate state interest, on grounds as slight as presented by
Cavel. Yet we are not entirely happy about having to
uphold the Illinois statute. That the company is foreign-
owned and its entire output exported means that the
shareholders and consumers harmed by the amendment
have no influence in Illinois politics, though there is no
hint in the history of the amendment of local hostility to
foreigners but only of indifference to them, in the remark
of the state’s agriculture director that “there is no domestic
market for horsemeat and, therefore, no need for this
practice to continue in Illinois.” Governor’s Office Press
Release, “Gov. Blagojevich Signs Legislation Banning
the Slaughter of Horses in Illinois for Human Consump-
tion,” May 24, 2007, www.illinois.gov/PressReleases/
ShowPressRelease.cfm?SubjectID=3&RecNum=5995
(visited Sept. 5, 2007) (emphasis added).
The fact that the governor’s signing statement acknowl-
edges the role of the Hollywood actress Bo Derek, author
of the book Riding Lessons: Everything That Matters in Life
I Learned From Horses (2002), in outlawing the slaughter-
ing of horses could be thought to inject a frivolous note
into a law that forces the closing of a business that has
very little to do with the people of Illinois. But this is not
a basis for invalidating a nondiscriminatory statute that
interferes minimally with the nation’s foreign commerce
and cannot be said to have no rational basis.
No. 07-2658 15
Although the appeal is from the denial of a preliminary
injunction, the merits of Cavel’s challenge to the horse-
meat law have been fully briefed and argued and there
are no unresolved factual issues the resolution of which
in a trial would alter the result. In such a case, courts
treat the appeal as if it were from a final judgment. Mast,
Foos & Co. v. Stover Mfg. Co., 177 U.S. 485, 494-95 (1900);
Illinois Council On Long Term Care v. Bradley, 957 F.2d 305,
309-10 (7th Cir 1992); Amandola v. Town of Babylon, 251 F.3d
339, 343-44 (2d Cir. 2001) (per curiam); Solantic, LLC v. City
of Neptune Beach, 410 F.3d 1250, 1272-74 (11th Cir. 2005). So
the judgment is affirmed, the suit dismissed with prejudice,
and the injunction that we granted pending appeal dis-
solved.
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—9-21-07