Opposition Brief — Cavel International, Inc. v. Madigan (No. 07-962)
Supreme Court brief2007
Ask Donna
What actually matters in this document.
Text
45 ; Le
!
MAY 1 § 2008
®D OFFICE OF THE CLERK
SUPREME CO
No. 07-962 COURT, U.S.
In the
Supreme Court of the United States
CAVEL INTERNATIONAL, INC., ET AL., PETITIONERS,
v.
LISA MADIGAN, ATTORNEY GENERAL OF ILLINOIS;
RON MATEKAITIS, DEKALB COUNTY STATE’S ATTORNEY;
AND TOM JENNINGS, ACTING DIRECTOR,
ILLINOIS DEPARTMENT OF AGRICULTURE, RESPONDENTS.
On Petition for a Writ of Certiorari
to the United States Court of Appeals
for the Seventh Circuit
BRIEF IN OPPOSITION
RON MATEKAITIS LISA MADIGAN
DeKalb County Attorney General of Illinois
State’s Attorney MICHAEL A. SCODRO
JOHN FARRELL Solicitor General
Assistant State’s Attorney Mary E. WELSH*
200 North Main Street Assistant Attorney General i
Sycamore, Illinois 60178 100 West Randolph Street he
(815) 895-7164 Chicago, Illinois 60601
(312) 814-2106
*Counsel of Record
Counsel for Respondents
i
QUESTION PRESENTED
A 2007 amendment to the Illinois Horse Meat Act
(the “Amendment”) prohibits the possession and sale of
horse meat for human consumption, as well as its
import into (and export from) Illinois and the slaughter
\ of horses for this purpose. 225 ILCS 635/1.5 (2007).
The question this case presents is:
Whether the Seventh Circuit correctly held that
petitioners failed to present evidence that the
Amendment violates the Foreign Commerce Clause by
(a) discriminating facially or in effect against foreign
commerce in horse meat for human consumption,
lacking any rational basis, or posing more than a
“slight” burden on foreign commerce that is “clearly
excessive” in relation to the State’s legitimate and
substantial interests, and (b) impairing the national
government’s ability to speak with one voice about
foreign commerce in horse meat for human
consumption.
ra
ee |
il
TABLE OF CONTENTS
Page
QUESTION PRESENTED .................... i
py Re tg yg yO |. ra v
EMEEE BEM AIEEWOLLION 6 occ ccc ccc eee wines 1
ae soe ko iid a died os wc aebaidy a eevee 3
REASONS FOR DENYING THE PETITION .... 10
I. The Seventh Circuit's Opinion Is Correct,
Breaks No New Ground, and Is Fully
Consistent with This and Other Courts’
Commerce Clause Jurisprudence .......... 11
A. Pike, Japan Line, and Their Progeny
Have Created and Refined the
Analytical Framework for Foreign
Commerce Clause Claims .............. 12
B. The Seventh Circuit Applied These
Well-Established Principles to the
Evidentiary Record Developed Below .... 13
ili
. The Seventh Circuit’s Decision
That the Amendment Does Not
Facially Discriminate Against
Foreign Commerce in Horse
Meat Is Fully Consistent with
Hughes, Natsios, and
MO 5 oo 5 SES bee es
. The Seventh Circuit Applied
Established Law in Determining
That the Amendment Does Not
Discriminate in Effect ...........
. The Purported Confusion § or
Circuit Split Concerning
Application of the Rational Basis
ee ae Te ee ce cs ox
. The Purported Circuit Split
Involving the Pike Balancing
Test Is Illusory and Would Not
Be Implicated by This Case in
Pa PE os kh hack ee es
. There Is No Confusion or Circuit
Split About Japan Line’s “One
REE se ne a hs yoo
. Japan Line Requires No
Additional Articulation ..........
II. Petitioners’ Amici May Neither Supplement
the Evidence in the Record Nor Raise Issues
the Petition Does Not
iv
III. This Case Is Not a Proper Vehicle for
Resolving the Questions the Petition
I ak 6 kaa awe Ee 0 EKO oe UTG SED 35
TABLE OF AUTHORITIES
Cases: Page
Am. Trucking Ass’ns v. Mich. Pub. Serv. Comm'n,
545 U8. S88 C006) 5 oie 17, 23, 28
Antilles Cement Corp. v. Acevedo Vila,
406 F.3a 4) (ist Cir, 9006)... 2. ew 30
Bankers Life & Cas. Co. v. Crenshaw,
ME eR ed CDG Ag eo kk Oe cee ceases 21
Barclays Bank PLC v. Franchise Tax Bd.,
Ee Be POE) icc cee cceeees 1, 26, 28
Champion v. Ames,
REI AMID 5 bok coed see eee ad ceases 18
Chem. Waste Mgmt., Inc. v. Hunt,
BOG Tie re Che a eke ews 13,14, 15, 16
City of Cleburne v. Cleburne Living Ctr., Inc.,
re re I ooo bee hehe ee ba oe 19
Container Corp. of Am. v. Franchise Tax Bd.,
on SMe ga” | re 13, 26, 27
Corus Staal BV v. United States,
305 F.3d 1343 (Fed. Cir. 2005). °*........... 34
Craig v. Boren, 429 U.S. 190 (1976) ............ 19
Bae
bio
ge
te
.
vi
Crosby v. Nat'l Foreign Trade Council,
ek Oe ee Pe eer eee 33
CTS Corp. v. Dynamics Corp. of Am.,
(AG. OO G08. ................ SA 21
Delta Airlines, Inc. v. August,
450 U.S. 346 (1981) ........ fois ei a aw eats 32
Empacadora de Carnes de Fresnillo,
S.A. de C.V. v. Curry,476 F.3d 326 (5th Cir.),
cert. denied, 127 S. Ct. 2443 (2007) ..... passim
Exxon Corp. v. Governor of Md.,
ee te A a os wa sb ese cn es 12,17
F.C.C. v. Beach Commce'ns,
ee ee ae 20
Hartford Enters., Inc. v. Coty,
529 F. Supp. 2d 95 (D. Me. 2008)........... 31
Hughes v. Oklahoma,
OBR So Sa) oy) ae 14, 15, 19, 30
Humane Soc’y of the United States v. Johanns,
No. 06-625 (D.D.C., March 28, 2007),
on appeal sub nom.
Humane Soc’y of the United States v.
Cavel Int7, Inc., No. 07-5120
(D.C. Cir., March 31, 2008) ..... 3, 9, 26, 27, 35
ITC Ltd. v. Punchgini, Inc.,
462 F.3d 136 Ga Cir. 2007) .......2..2.0.. 33
Vii
Japan Line, Ltd. v. County of Los Angeles,
BGT 5i 50 MR MMOOE 6a vs onc ee kkce cos passim
Kamen v. Kemper Fin. Servs., Inc.,
er ns so a ed ce 32
K.S.B. Tech. Sales uv. N. Jersey Dist. Water Supply 7
Comm’n,381 A.2d 774 (N.J. 1977) .......... 29
Medellin v. Texas, 128 S. Ct. 13846 (2008) ....... 33
Nat Foreign Trade Council v. Natsios,
181 F.3d 38 (1st Cir. 1999), affd on other
grounds sub nom. Crosby v. Nat'l Foreign
Trade Council, 531 U.S. 363 (2000) .... 1, 15, 16
Nat'l Solid Wastes Mgmt. Ass’n v. Charter
County of Wayne, 303 F. Supp. 2d 835
TR, I eco eas rs ce ee ess 29
Nev. Dep't of Human Res. v. Hibbs
Se PE GU na kb S er Se becuse ss aes 21
Nicchia v. New York,
Se So be be eae ek eee 18
Nordlinger v. Hahn,
I ng Sy ale n'y boo 21
Norfolk S. Corp. v. Oberly,
822 F.2d 388 (Sd Cir. 1987) ............ 29, 30
NSK Ltd. v. United States,
510 F.3d 13768 (Ped. Cir. 2007) ............. 34
Vili
Or. Waste Sys., Inc. v. Dep’t of Envtl. Quality of Or.,
OAS BF ee Cae oe i ee eae Es 12
Paris Adult Theater I v. Slaton,
Gi Re OD gf hak os oe kw evade eek 18
Pike v. Bruce Church, Inc.,
OT Maite BOP EAOTUD clk ce ewe wn passim
South Dakota v. Bourland,
ee Ek hk ie ae eka ce wes 34
Thompson v. W. States Med. Ctr.,
Se ari ee CE a ocd ede be ee eees 21
United Haulers Ass’n, Inc. v. Oneida-Herkimer
Solid Waste Mgmt. Auth.,
EBT Pe ee OE ko a a ee hee 12
United States v. Clark,
435 F.3d 1100 (9th Cir. 2006) ............. 30
United States Dep't of Agric. v. Moreno,
MiB TS. BRS Gree ok se eh eS 19
United States R.R. Ret. Bd. v. Fritz,
S60 TB WO Clee 5 ho ko hae eee ee 21
ix
Constitutional Provisions, Statutes, and Rules:
ee ETE GED bc cccccsconedas passim
Consol. Appropriations Act, 2008, Pub. L. 110-161,
ge ie 3, 10, 27
PURI PE EOE boc ciccccsaccccscee 2, 31
rm rane a 34
os kak eeh des kha eae oe 32-33
PRET OEE A 34
EE Dns", ks od ae sae.p ede aen eeee 34
eRe MEME 5 bo cc cec de rnceceivianaee’s 4
EE 95s 5d. obo wap p0ebsas0cd ed 6 baad 27
TO. gs co cccedccsdtcteverenads 34
i Ses es EEE bc dire veescesecenaew¥ een 5
225 ILCS 6356/1 - 635/18 (2007) ................ 3
225 ILCS 635/1.5 (2007) .............06.-- passim
Other Authorities:
95th Gen. Assem., Trans. of House Debates,
RE, £5666 bids be eke e On ane se eeeee 4
95th Gen. Assem., Trans. of Senate Debates,
i eee Ca ain ee Pe peeks Waa oe + 0:4 4
Kenneth M. Casebeer, The Power to Regulate
‘Commerce with Foreign Nations’ in a Global
Economy and the Future of American
Democracy: An Essay,
56 U. Miami L. Rev. 25 (2001) .............. 30
Erwin Chemerinsky, Constitutional Law:
Principles and Policies (3d ed. 2006) ........ 31
Eugene Gressman, et al., Supreme Court
Practice (Oth ed. 2007) ..............5.- 9, 25
Horse Illustrated (July 2002) ................. 22
l
BRIEF IN OPPOSITION
Petitioners’ case failed below for want of proof.
Petitioners did not show that the Amendment's total
ban on horse meat for human consumption either
discriminates against foreign commerce facially or in
effect, or that it has no rational basis. They also failed
to present empirical evidence that the Amendment
imposes more than a “slight” burden on such
commerce, much less that this slight burden
“excessively outweighs” the State’s legitimate animal
welfare and other interests. Accordingly, the Seventh
Circuit’s rejection of petitioners’ challenge to the
Amendment was fully consistent with the Court’s
precedents, including Pike v. Bruce Church, Inc., 397
U.S. 137 (1970), and with Empacadora de Carnes de
Fresnillo, S.A. de C.V. v. Curry, 476 F.3d 326 (5th Cir.),
cert. denied, 127 S. Ct. 2443 (2007), which upheld a
similar law.
Likewise, petitioners failed to present required
evidence that the Amendment impairs the national
government's ability to “speak with one voice” about
foreign commerce in horse meat for human
consumption. Thus, the Seventh Circuit’s decision was
also fully consistent with the Court’s Foreign
Commerce Clause precedents, including Japan Line,
Ltd. v. County of Los Angeles, 441 U.S. 434 (1979), and
Barclays Bank PLC v. Franchise Tax Bd., 512 U.S. 298
(1994), as well as with NatT Foreign Trade Council v.
Natsios, 181 F.3d 38 (1st Cir. 1999), affd on other
grounds sub nom. Crosby v. Natl Foreign Trade
Council, 531 U.S. 363 (2000), which held that a state
ban on investment in Burma facially discriminated
against commerce with Burma and violated a clear
2
federal directive about commerce with that country.
Rather than creating new law, as petitioners claim, the
Seventh Circuit followed the Court’s Foreign
Commerce Clause precedents step-by-step, including
application of the rational basis standard to state laws
that do not discriminate against out-of-state commerce
facially or in effect. The Seventh Circuit’s decision is
thus a straightforward application of what petitioners
themselves call “longstanding precedents” (Pet. 4) to
the scant evidence petitioners presented at trial. And»
while petitioners attempt to create a question over
whether the Seventh Circuit allegedly came up with its
own, “inducement” rationale for the Amendment (Pet.
26-28), this was not the only (or even the primary)
rationale on which the court upheld the Amendment,
and the State’s reasons for the Amendment embodied
the court’s “inducement” rationale in any event.
The attempts by amici to inject several new issues
into this case—whether the Amendment (a) violates
the United States’ obligations under three trade
treaties; (b) unconstitutionally burdens interstate
commerce in horses as livestock; or (c) “interferes” with
enforcement of the federal Humane Methods of
Slaughter Act (7 U.S.C. §§ 1901-1907)—should be
rebuffed. Not only is an amicus prohibited from
smuggling in issues not raised in a petition, but also
these issues were not preserved below. Likewise,
Belgium’s attempt to augment the record with new,
evidence to bolster petitioners’ argument that the
Amendment'’s effect on foreign commerce in horse meat
is more than “slight” should be firmly rejected, for the
Court’s review is limited to the evidentiary record at
trial.
3
A separate and independent ground also counsels
against granting the petition. In the 2008 fiscal year,
Congress explicitly stated the federal policy toward
slaughter of horses for human consumption by refusing
to fund the United States Department of Agriculture’s
inspection regime under which horses must be
slaughtered. Consol. Appropriations Act, 2008, Pub.
L. 110-161, § 741, 121 Stat. 1844, 1881 (2007). A
federal district court enjoined the USDA’s substitute
fee-for-service inspection system (Humane Soc’y of the
United States v. Johanns, No. 06-625 (D.D.C., March
28, 2007)), and although Cavel obtained a stay of that
injunction pending its appeal, that appeal was recently
dismissed (Humane Soc’y of the United States v. Cavel
Int'l, Inc., No. 07-5120 (D.C. Cir., March 31, 2008) (per
curlam)). Cavel’s petition for rehearing en banc is
pending as of the filing of this brief. Under these
circumstances, this case presents an exceptionally poor
vehicle for resolving petitioners’ Foreign Commerce
Clause claim, because a victory would be unlikely to
have any effect whatsoever on Cavel’s operations.
For all these reasons, this Court should deny the
petition.
STATEMENT
1. In May 2007, the Illinois Horse Meat Act (225
ILCS 635/1 — 635/18 (2007)) was amended to, among
other things, prohibit the possession, sale, or purchase
in Illinois, and the export from (and import into)
Illinois, of horse meat for human consumption, as well
as slaughtering horses for this purpose. 225 ILCS
635/1.5 (2007).
4
During the legislative debates, one representative
observed that Illinois law defines horses as “companion
animals,” like dogs and cats, and stated that they
should be allowed to die of natural causes or be
euthanized, distinguishing “feed animals.” 95th Gen.
Assem., Trans. of House Debates, April 18, 2007, at
123, 133-34. He added that “[i]t doesn’t make sense” to
permit the slaughter of horses for human consumption
when consumption of the meat is banned. 7d. at 116-
17. One senator stated, “plain and simple, this is an
animal cruelty,” to permit a horse to be slaughtered for
human consumption merely because it was no longer
of economic use, emphasizing that few States permit
this practice. 95th Gen. Assem., Trans. of Senate
Debates, May 16, 2007, at 207. Another legislator
expressed concern, after the bill was passed, that
“[pjeople were selling horses not knowing that they
were being used and treated like livestock and ended
up on the slaughter room floor.” Resp. la.
2. The day after the Amendment became effective,
Cavel and some of its employees filed an eight-count
complaint against respondents, who are state and
county officials, seeking declaratory and injunctive
relief. Pet. 6-8. Among other things, petitioners
alleged that the Amendment violated the Foreign
Commerce Clause, was preempted by the Federal Meat
Inspection Act (FMIA) (21 U.S.C. §§ 601-695), and
constituted an unlawful use of police power. Pet. 8.
The district court entered a temporary restraining
order, finding that petitioners had “just cleared” the
“low threshold” of a “better than negligible chance of
succeeding” on the merits, but only on their Foreign
Commerce Clause claim. Doc. 30 at 2-4.
5
At a hearing pursuant to Civil Rule 65(a)(2),
petitioners called only one witness, Cavel’s general
manager, who stated that over 99% of Cavel’s business
is in horsemeat for human consumption, none of which
is sold in the United States. Pet. 19a-20a. He did not
know whether the United States produces even 0.8% of
the horsemeat consumed worldwide. Doc. 134 at 54.
Petitioners’ only other evidence consisted of five
exhibits. Jd. at 56-63. One was a letter to Illinois
Governor Rod Blagojevich from Belgium’s Minister of
Foreign Affairs, stating that Belgium “will be carefully
scrutinizing the compatibility of Horse [sic] Bill 1711
with international trade rules, including those existing
under the World Trade Organisation.” Resp. 4a-5a.
Another was a press release from Governor
Blagojevich, issued the day the Amendment became
effective. Resp. la-3a. A third was the federal
defendants’ one-sentence response to a court order in
Humane Society seeking their position on Cavel’s
motion to stay the injunction pending appeal, which
merely provided that defendants “support[ed] the
Motion” but gave no reason. Resp. 6a. The other two
exhibits were a 1987 document from the United States
Department of Agriculture (USDA), stating that
inspection service was granted for Cavel because a
survey of its facility indicated compliance with FMIA,
and a copy of an Illinois House of Representatives
debate on the Amendment. Doc. 134 at 56-63.
The district court entered judgment for
respondents on the three claims petitioners raised at
the hearing. Pet. 16a-40a, 41a. Relying on
Empacadora, the court first rejected petitioners’ FMIA
preemption claim, finding that the federal law
concerned pre- and post-slaughter inspection, whereas
6
the Amendment regulates which meats people may
possess or consume. Pet. 23a-27a. It also rejected
petitioners’ claim that the Amendment had no rational
basis, stressing that the rational basis test required
that the Amendment be upheld so long as there was
“any reasonably conceivable state of facts that could
provide a _ rational basis,” including “rational
speculation unsupported by evidence or empirical
data.” Pet. 37a-40a (internal quotation marks
omitted). The court found that the Illinois legislature
could have rationally concluded that a_ horse’s
temperament, agility, and wariness made it more
difficult to kill methodically than livestock, which in
turn made it inhumane to slaughter a horse before its
useful life ends and more humane to euthanise it with
drugs and then dispose of the carcass by rendering or
other means. Pet. 38a. The court further found that
the Illinois legislature could have rationally concluded
that the Amendment was a reasonable regulation of
food for human consumption, given our country’s
cultural history and views about consuming companion
animals, such as cats, dogs, and horses, unlike animals
that are raised for food. Pet. 37a-40a.
The court also rejected petitioners’ Foreign
Commerce Clause claim. Pet. 27a-37a. It first found
that the Amendment’s complete ban on horsemeat for
human consumption does not discriminate against
foreign or interstate commerce. Pet. 28a-31a. Next, it
found that the record did not include evidence the court
would need to assess whether the Amendment placed
any burden on foreign commerce in horse meat, noting
that petitioners presented no evidence of how much
Illinois horse meat Belgians consume or what
percentage of all horse meat consumed in Belgium is
7
produced in Illinois. Pet. 3la-33a. The court also
found significant that petitioners had neither proven
what percentage of the world’s horse meat supply
comes from Cavel nor quantified Cavel’s exports, either
in total or to any particular country. Pet. 33a.
Finally, the court found that petitioners failed to
prove that the Amendment impedes the federal
government’s ability to “speak with one voice” about
foreign commerce in horse meat for human
consumption, as Japan Line required, for their
evidence did not permit the court even to begin to
assess any risk of a conflict with any other country.
Pet. 32a-33a. Addressing petitioners’ only evidence on
this point, i.e., the Belgium Foreign Affairs Minister’s
letter, the court found that the “mere mention of an
intent to examine [the Amendment] does not, in and of
itself, indicate a substantial risk of [such] conflict.”
Pet. 32a. The.court also found significant petitioners’
concession that they knew of no formal or informal
action by any trading partner in response to the
Amendment. Pet. 32a.
Petitioners’ motion for an injunction pending
appeal was denied (Pet. 44a), but, over a dissent, the
Seventh Circuit granted their motion for an injunction
pending appeal (Pet. 43a-51a).
3. The Seventh Circuit unanimously affirmed the
judgment. Pet. la-15a.
Addressing petitioners’ Commerce Clause claim,
the court first held that the only provision of the
Amendment applicable to Cavel was the ban on the
slaughter of horses for human consumption, which did
not facially discriminate in favor of Illinois producers
8
or merchants. Pet. 6a-7a. Nor does the law have a
constitutionally proscribed effect on interstate
commerce, the court concluded, so long as it satisfies
the test set forth in Pike: “Where the statute regulates
evenhandedly 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.” Pet. 8a
(quoting Pike, 397 U.S. at 142) (emphasis in Cavel).
The court then concluded that petitioners’ evidence
revealed that the Amendment’s burden on commerce
was only “slight” and that “States have a legitimate
interest in prolonging the lives of animals that their
population happens to like,” citing bans on bullfights
and cockfights as well as on animal abuse and neglect.
Pet. lla. Evenif the Amendment did not in fact result
in horses living longer lives, the court continued, a
State “is permitted, within reason, to express disgust
at what people do with the dead,” such as banning the
slaughter of dogs and cats for human consumption.
Pet. 12a. The court also held that Illinois may balance
these interests against those of its residents, and may
do soa step atatime. Pet. 1la. For these reasons, the
court also concluded: that petitioners failed to prove
that the Amendment has no rational basis. Pet. 10a.
Turning to Japan Line’s analytical framework, the
court stressed that petitioners never presented
evidence of the Amendment’s effect on foreign
commerce, or even evidence of Cavel’s share of the
European market for horse meat. Pet. 13a-14a. The
court also found significant that petitioners presented
no evidence of any risk of conflict: the Belgium Foreign
9
Affairs Minister’s letter did not say that Belgium
opposed the law, and petitioners presented no evidence
of opposition by either another foreign government or
the federal government. Pet. 14a. Concluding that the
Amendment was nondiscriminatory facially and in
effect, interfered only minimally with the nation’s
foreign commerce in horse meat for human
consumption, and could not be said to lack a rational
basis, the court affirmed the judgment. Pet. 14a-15a.
No petition for rehearing was filed.
4. Meanwhile, after Congress refused to
appropriate funds for the USDA’s mandatory
inspections for horse slaughtering, the USDA enacted
regulations creating a fee-for-services inspection
program, which was enjoined in March 2007.' Humane
Soc’y of the United States, No. 06-625 (D.D.C., March
28, 2007). The federal defendants did not appeal the
injunction. Cavel, which had intervened as a
defendant in that case, did appeal, and on May 1, 2007,
the D.C. Circuit granted Cavel’s motion to stay the
injunction pending appeal, based in part on Cavel’s
assertion that it would “go out of business absent a
stay, because it will be unable to operate during the
pendency of this appeal as a result of the district
court’s order.” Humane Soc’y of the United States, No.
07-5120, 2007 WL 4723381, at *1 (D.C. Cir., May 1,
2007). Cavel’s appeal was dismissed as moot on March
31, 2008, but its petition for rehearing and rehearing
en banc is pending as of the filing of the instant brief.
' The Court may take judicial notice of these
court records. Eugene Gressman et al., Supreme Court
Practice, 727-28 (9th ed. 2007).
10
Congress again prohibited the use of federal funds
for the USDA fee-for-service inspections in the 2008
fiscal year. Consol. Appropriations Act, 2008, Pub. L.
110-161, § 741, 121 Stat. 1844, 1881 (2007). Without
these inspections, no one may slaughter horses for
human consumption in the United States.
REASONS FOR DENYING THE PETITION
This case doesinot warrant Supreme Court review.
The Seventh Circuit’s decision adheres to Pike and
Japan Line and their progeny, and it breaks no new
ground. It is also fully consistent with Natsios, which
struck down a facially discriminatory statute barring
state dealings with a particular country and in direct
conflict with a clear congressional directive. Nor is this
case a vehicle for addressing alleged confusion over the
best articulation of the framework for evaluating
Foreign Commerce Clause challenges, for—despite
occasional dicta about the ongoing role of Pike and
Japan Line—the Seventh Circuit reached its
conclusions only by rigorously applying those
precedents. And there is nothing to petitioners’
complaint that the Seventh Circuit purportedly came
up with its own rationale for the Amendment, when
that was not the only rationale on which the court
relied in upholding the law, and it was embodied by
the State’s articulated reasons for the legislation in
any event.
The amici seek to add issues to the case and fill
obvious gaps in the evidentiary record, but their
belated attempts should be firmly rebuffed. And even
if those new questions—involving trade treaty
obligations, the Humane Methods of Slaughter Act,
RTP yO Pee SS ee ee ee ee Oe eee Fey eee a Le oe et ewe es pee eee eS Se eee ee a Ce wr es
1]
and interstate commerce in_ livestock—were
considered, none requires the Court’s attention.
Lastly, but critically, petitioners ask the Court to
resolve legal issues that are unlikely to have any effect
on them, given Congress’s refusal to fund USDA
inspections for horse slaughter and Cavel’s
unsuccessful litigation to defend USDA regulations
that would circumvent that refusal. Certiorari should
be denied.
I. The Seventh Circuit’s Opinion Is Correct,
Breaks No New Ground, and Is Fully
Consistent with This and Other Courts’
Commerce Clause Jurisprudence.
According to petitioners, this Court’s review is
required to resolve purported “confusion” in the lower
courts over the proper Commerce Clause inquiry,
confusion that petitioners attribute to the Court’s
“inconsistent” Interstate Commerce Clause cases and
its “undeveloped” Foreign Commerce Clause
jurisprudence. Pet. 15-19. As described more fully
below, however, the questions that petitioners seek to
have this case answer are simply not presented here:
there is no debate over the proper framework for
resolving Foreign Commerce Clause cases, and even if
there were confusion along the lines that petitioners
describe, it would not be implicated in this case; nor
does this case provide an opportunity to revisit the
ongoing viability of Pike and Japan Line, or of Pike’s
application in the absence of discrimination, for the
Seventh Circuit expressly applied both Pike and Japan
Line, meaning petitioners received the benefit of the
very rules whose application petitioners (incorrectly)
suggest are in question.
12
In fact, the bedrock principles of Commerce Clause
analysis, both foreign and interstate, are well-
established, and the Seventh Circuit applied those
principles step-by-step to the evidence presented below.
A. Pike, Japan Line, and Their Progeny
Have Created and Refined the Analytical
Framework for Foreign Commerce
Clause Claims.
In its “dormant” form, the Commerce Clause (U.S.
Const. art. I, § 8, cl. 3) has been held to implicitly
restrain state authority to regulate commerce. See,
e.g., United Haulers Ass’n, Inc. v. Oneida-Herkimer
Solid Waste Mgmt. Auth., 127 S. Ct. 1786, 1792-93
(2007). The general principles governing dormant
Commerce Clause analysis are well-established. Alaw
that discriminates against interstate or foreign
commerce “is virtually per se invalid. By contrast,
nondiscriminatory regulations that have only
incidental effects on commerce are valid unless ‘the
burden imposed on such commerce is clearly excessive
in relation to the putative local benefits,” under the
Pike balancing test. Or. Waste Sys., Inc. v. Dep't of
Envtl. Quality of Or., 511 U.S. 93, 99 (1994) (quoting
Pike, 397 U.S. at 142) (citations omitted). The Court
has defined “discrimination” in this context as
“differential treatment of in-state and out-of-state
economic interests that benefits the former and
burdens the latter.” Jd. at 99. Of significance here are
two additional principles: the Commerce Clause
forbids discrimination against commerce, protecting
the market as a whole rather than any particular
enterprise (Exxon Corp. v. Governor of Md., 437 U.S.
117, 127-28 (1978)), and a complete ban on a product
13
discriminates against that product, not against
commerce therein (Chem. Waste Mgmt., Inc. v. Hunt,
504 U.S. 334, 347 n.11 (1992)).
It is equally established that Foreign Commerce
Clause claims require a more extensive inquiry—
whether a state law will impair federal uniformity by
preventing the national government from “speaking
with one voice when regulating commercial relations
with foreign governments.” Japan Line., 441 U.S. at
448-51 & n.14, 446. A state law survives this “one
voice” inquiry so long as it neither implicates foreign
policy issues that must be left to the federal
government nor violates a clear federal directive.
Container Corp. of Am. v. Franchise Tax Bd., 463 U.S.
159, 194 (1983).
In sum, the general principles for Foreign
Commerce Clause claims are well established. The
Seventh Circuit’s decision adhered to those principles.
B. The Seventh Circuit Applied These Well-
Established Principles to the Evidentiary
Record Developed Below.
The Seventh Circuit properly applied Pike, Japan
Line, and their progeny and held that petitioners failed
to show that the Amendment'’s total ban on horse meat
for human consumption discriminates against
commerce, either facially or in effect, or that it has no
rational basis. Likewise, the court held that
petitioners failed to present evidence that the
Amendment posed a burden on commerce that was
more than “slight,” much less a burden that was
“clearly excessive” in relation to the State’s interest in
animal welfare, as Pike required. Lastly, the court
14
held that petitioners failed to present evidence that the
Amendment impairs the federal government’s ability
to speak with “one voice,” applying Japan Line. These
rulings are fully consistent with Foreign Commerce
Clause precedent. Indeed, the confusion or debate over
the Clause that petitioners attempt to show in the
lower courts is entirely manufactured, and the issues
that petitioners identify for this Court’s resolution
would not be implicated in this case in any event.
1. The Seventh Circuit’s Decision That
the Amendment Does Not Facially
Discriminate Against Foreign
Commerce in Horse Meat Is Fully
Consistent with Hughes, Natsios, and
Empacadora.
As explained above, the first step in Commerce
Clause analysis is to determine whether a state law
discriminates against commerce facially or in effect.
Because the Amendment completely bans horsemeat
for human consumption in Illinois (Pet. 56a), it
manifests hostility to this product, not to commerce
therein, so it is “at least nondiscriminatory.” Chem.
Waste Mgmt., 504 U.S. at 347 n.11. Accordingly, the
Seventh Circuit’s conclusion that the Amendment’s
prohibition against slaughtering horses does not
facially discriminate against commerce in horsemeat
for human consumption (Pet. 7a) was dictated by
Chem. Waste Mgmt.
Petitioners nevertheless complain that this holding
conflicts with Hughes v. Oklahoma, 441 U.S. 322
(1979), which struck down a state law they call
“indistinguishable” from the Amendment. Pet. 19-20.
But the Oklahoma law facially discriminated against
Ss a4
15
interstate commerce, permitting intrastate commerce
in minnows while prohibiting interstate commerce
therein. 441 U.S. at 336-37. In stark contrast, the
Amendment prohibits al] commerce in (or possession
of) horse meat for human consumption, whether
intrastate, interstate, or foreign. Thus, the
Amendment is easily distinguished from Hughes's
facially discriminatory ban on interstate commerce.
Indeed, to call the Amendment facially discriminatory
would conflict with Chem. Waste Mgmt.’s rule that
total bans on a product are “at least
nondiscriminatory.” 504 U.S. at 347 n.11 (emphasis
added). The same is true of amicus Belgium’s
complaint that the Amendment discriminates against
foreign commerce in horse meat by acting as an export
ban. Belgium 4. Furthermore, under Belgium’s
argument, the Commerce Clause would require Illinois
to permit the production of an item it bans for its
residents, e.g., dog and cat meat for human
consumption or pornography, whenever it is produced
only for export. None of the Court’s precedents
permits, much less requires, this absurd result.
Petitioners also contend that the Seventh Circuit’s
decision “stands in tension with” Natsios’s holding that
a law need not distinguish between foreign and
domestic producers to be facially invalid. Pet. 20-21
(citing 181 F.3d at 67). But Natsios merely held that
the law at issue there, which prohibited any and all
investment in Burma, was facially discriminatory
because it was designed to limit commerce with a
particular country. 181 F.3d at 67-68. Like the
facially discriminatory law in Hughes, the facially
discriminatory law in Natsios stands in sharp contrast
to the Amendment, which is not a “direct attempt to
16
regulate the flow of foreign commerce” in horse meat
for human consumption. In short, there is no “tension”
between Natsios and the Seventh Circuit’s decision.
Furthermore, the Seventh Circuit’s decision is in
accord with Empacadora, to which petitioners give
short shrift because a Foreign Commerce Clause claim
was not implicated there. Pet. 21 n.5. But the first
step in all Commerce Clause cases, including
Empacadora and the instant case, is to determine
whether a state law discriminates against out-of-state
commerce, and Empacadora held that Texas’s ban on
processing and selling horse meat for human
consumption was not facially discriminatory because it
was a “blanket prohibition” against this product. 476
F.3d at 335. This decision, like the Seventh Circuit’s,
was mandated by Chem. Waste Mgmt.’s holding that
total bans are “nondiscriminatory.” 504 U.S. at 347
n.11.
2. The Seventh Circuit Applied
Established Law in Determining
That the Amendment Does Not
Discriminate in Effect.
Having concluded that the Amendment is facially
nondiscriminatory, the Seventh Circuit turned to
whether it nevertheless discriminates against foreign
commerce “in effect,” and concluded that petitioners
failed to present evidence sufficient to support this
argument. Pet. 7a-8a. To the extent that petitioners
now argue that the Amendment’s effect on Cavel,
specifically, demonstrates discriminatory effect on
foreign commerce in horse meat (Pet. 20), that
argument would run afoul of Exxon’s rule that the
17
Commerce Clause does not protect any particular
interstate enterprise. 437 U.S. at 127-28.
In the end, at issue here is merely an evidentiary
dispute, for the Seventh Circuit concluded that
petitioners failed to present evidence that Cavel’s
closing would have any non-trivial effect on foreign
commerce in horse meat. Pet. 7a-8a. Indeed, the court
held that petitioners’ evidence showed at best a “slight” .
effect on such commerce. Pet. 14a. Given the dearth
of petitioners’ evidence, this decision was fully
consistent with the Court’s rule that empirical
evidence must be presented to support a claim of
discriminatory or burdensome effect on commerce. Am.
Trucking Ass’ns v. Mich. Pub. Serv. Comm’n, 545 U.S.
429, 436 (2005).
3. The Purported Confusion or Circuit
Split Concerning Application of the
Rational Basis Test Is Illusory.
Petitioners focus on statements by the court prior
to its ultimate decision on appeal, including two select
statements from a panelist at oral argument, to
suggest that the Seventh Circuit harbors doubts about
the State’s interest in the Amendment. See, e.g., Pet.
27-28 (citing Pet. 80a, 82a). But of course it is only the
court’s ultimate decision that has the force of law, and
in that decision the court affirmatively rejected
petitioners’ claim that the Amendment lacks a rational
basis. Pet. 15a, 10a. This conclusion followed from a
straightforward application of this Court’s and circuit
precedent.
Petitioners also complain that the court articulated
its own rationale for the Amendment—“ending an
Fe ON) Lae SEE AN SRS ee ee Ae aN he eee Soe tae SAE Se he Boe Ie
18 ;
inducement to slaughter” horses (Pet. 26)—and even
suggest that this is itself grounds for review (Pet. i, 27).
But this suggestion fails for multiple reasons. First, as
set out below (at pp. 20-21), the rational basis test
considers any “hypothesized justifications” for a law.
Second, the court did not-rely on this “inducement”
theory as the sole (or even the primary) rational basis
for the Amendment. Rather, the court ultimately
concluded that the Amendment was a _ proper
expression of “disgust at what people do with the dead,
whether dead human beings or dead animals.” Pet.
12a.? Finally, the State had, in fact, identified an
interest in preventing the slaughter of these
companion animals (see supra p. 4; Pet. 37a-40a), and
petitioners’ willingness to pay money for horses is not
? Petitioners contend that “the moral judgment
of the government majority” is insufficient for the |
rational basis test (Pet. 28), but they make no
meaningful argument to this effect, and indeed any
such argument would conflict with the rule that “[t]he
States have the power to make a morally neutral
judgment that... commerce in [certain] material, has
a tendency to injure the community as a whole, to
endanger the public safety, or to jeopardize in Mr.
Chief Justice Warren’s words, the States’ right .. . to
maintain a decent society.” Paris Adult Theater I v.
Slaton, 413 U.S. 49, 69 (1973) Gnternal quotation
marks omitted). Indeed, it is well established that
regulation of morals is a valid state interest
(Champion v. Ames, 188 U.S. 321, 356-57 (1903)), as is
regulation of animals (Nicchia v. New York, 254 U.S.
228, 230-31 (1920)), and compassion for them (Paris
Adult Theater I, 413 U.S. at 69 n.15).
19
some distinct problem articulated for the first time in
the appellate court; it is simply the reason why,
without the Amendment, horses would be tendered to
petitioners for slaughter.
Petitioners also imply that the Court has reserved
the question of whether a State’s counsel may propose
a “post hoc rationalization.” Pet. 27. For the reasons
just stated, however, the “inducement” rationale was
not a post hoc rationalization, nor was it the primary
rational basis on which the Seventh Circuit relied. In
any event, both cases petitioners cite on this score
concern facially discriminatory laws that were not
subject to the rational basis test in the first place:
Hughes (facial discrimination against interstate
commerce); and Craig v. Boren, 429 U.S. 190, 197-98
(1976) (overt gender discrimination). Petitioners’ other
two authorities are likewise in accord with the Seventh
Circuit’s rational basis analysis and finding. Those
cases involved laws that had no conceivable relation to
their proffered rationales. In City of Cleburne v.
Cleburne Living Ctr., Inc., 473 U.S. 432, 449-50 (1985),
a zoning ordinance that required special use permits
for group homes for the mentally retarded, but not for
other multiple dwellings, was not rationally related to
the government’s asserted interests, i.e.,
unsubstantiated fears of elderly residents, negative
views of nearby property owners, proximity to a school
(with mentally retarded students), the possibility of a
flood, and the size of the home. Similarly, in United
States Dep’t of Agric. v. Moreno, 413 U.S. 528 (1973),
denying food stamps to households that included
- someone unrelated to another household member was
not rationally related to the asserted interests in
20
maintaining adequate nutrition, stimulating the
agricultural economy, and minimizing fraud.
Here, by contrast, there are several plausible,
reasonable policy reasons for the Amendment, some of
which were even explicitly articulated by Illinois
legislators, and the relationship between those policies
and the Amendment is not attenuated in a way that
would render the Amendment arbitrary or irrational.
Indeed, the legislature provided multiple reasons for
the Amendment: ensuring that horses, like cats and
dogs and other companion animals, are allowed to die
of natural causes or be euthanized, and preventing
‘animal cruelty, in the form of slaughtering horses just
because they have outlived their economic usefulness.
See supra p. 4. Respondents asserted animal welfare
as a basis for the Amendment throughout the
litigation, and the district court relied on that interest.
Pet. 37a-40a. Similarly, the Seventh Circuit relied on
(among other things) the State’s interest in animal
welfare, analogizing the Amendment to bans on
bullfighting, cockfighting, and animal abuse and
neglect. Pet. lla-12a. (Empacadora suggested still
other rational bases when it upheld the similar Texas
law: preserving horses, preventing the consumption of
horse meat, and removing an incentive for horse theft.
476 F.3d at 336.)
In the end, petitioners are merely criticizing the
level of deference afforded by the rational basis test
itself; a law “is not subject to courtroom factfinding
and may be based on rational speculation unsupported
by evidence or empirical data.” F.C.C. v. Beach
Commce’ns, 508 U.S. 307, 315 (1983) (emphasis added).
Even “hypothesized justifications” may be used
21
(Thompson v. W. States Med. Ctr., 535 U.S. 357, 373
(2002)), and the government need not “actually
articulate at any time the purpose or rationale
supporting its classification” (Nordlinger v. Hahn, 505
U.S. 1, 15 (1992) (emphasis added)). Moreover,
whether a “reasonably conceivable” basis was the
legislature’s actual rationale is “constitutionally
irrelevant.” United States R.R. Ret. Bd. v. Fritz, 449
U.S. 166, 179 (1980) (internal quotation . marks
omitted). The rational basis test is satisfied whenever
“there is a plausible policy reason for the classification,
the . . . facts on which the classification is apparently
based rationally may have been considered to be true
by the governmental decisionmaker, and _ the
relationship of the classification to its goal is not so
attenuated as to render the distinction arbitrary or
irrational.” Nordlinger, 505 U.S. at 11.
The amici, too, disregard these well-established
standards when they assert that the Amendment lacks
a rational basis because, they say, ultimately it will
not achieve its goal. American Quarterhorse 8-19.
That argument, ‘however, conflicts with several
rational basis test principles: (1) courts may not
second-guess a legislature’s empirical judgments (CTS
Corp. v. Dynamics Corp. of Am., 481 U.S. 69, 92
(1987)); (2) an imperfect fit between a law and its
effects does not render it unconstitutional (Bankers
Life & Cas. Co. v. Crenshaw, 486 U.S. 71, 85 (1988));
and (3) a law’s rationale may be “probably not true” in
most cases’ (Nev. Dep't of Human Resources v. Hibbs
> Amici’s speculation about unintended
consequences of the Amendment (Horsemen's Council
22
538 U.S. 721, 735 (2003) (internal quotation marks
omitted)). And although some amici claim that the
Amendment is the final step rather than the first
(Horsemen’s Council 19-22), the rational basis test
asks only whether the Illinois General Assembly could
have reasonably believed that at least some of the
many thousands of horses that would otherwise be
slaughtered by Cavel are not killed before the end of
their useful lives. Moreover, if the Amendment should
prove as ineffective as petitioners and their amici
claim, the legislature may take additional measures.
4. The Purported Circuit Split Involving
the Pike Balancing Test Is Illusory
and Would Not Be Implicated by This
Case in Any Event.
After holding that petitioners failed to show that
the Amendment discriminates facially or in effect, or
that it failed the rational biisis test, the lower courts
properly applied the Pike balancing test, under which
the Amendment must be upheld unless petitioners
showed that any burden it places on commerce is
“clearly excessive in relation to the putative local
5-22) is contrary to experience elsewhere. In 1999,
California banned selling horses for slaughter for
human consumption, but saw no increase in neglected
or starved horses. Horse Illustrated, July 2002 at 96
(quoting Carolyn Stull, Ph.D., an animal welfare
specialist at the Veterinary Medical Extension of the
University of California, Davis). And although horses
could be transported to neighboring states for
slaughter, this would decrease the profit and thus was
unlikely. Id. at 98.
oe
23
benefits.” 397 U.S. at 142. As noted above, petitioners
were obliged to present empirical evidence of this
burden (Am. Trucking, 545 U.S. at 436), yet they did
not (Pet. 32a-33a, 14a). Because petitioners’ evidence
showed that the Amendment’s burden on foreign
commerce was no more than “slight” — perhaps even
less than 1% worldwide — that de minimis burden by
definition could not “excessively outweigh” the State’s
interests in animal welfare. Under these
circumstances, petitioners’ complaint that the Seventh
Circuit did not explicitly consider how to achieve the
State’s purpose with less impact on the market, as Pike
requires (Pet. 29 n.7 (citing 397 U.S. at 142)), makes
little sense. Moreover, the Seventh Circuit’s conclusion
(unlike petitioners’ argument) was wholly consistent
with that of the only other circuit court to address this
issue: Empacadora held that the State’s interest in
animal welfare was advanced by completely banning
horse meat for human consumption, and that “it is a
matter of commonsense” that this interest was not
being served by the existing alternatives. 476 F.3d at
336.
Petitioners and their amici make much of the
Seventh Circuit’s aside that circuit courts disagree
about whether Pike is available to plaintiffs who do not
demonstrate “at least ‘mild’ discrimination.” Pet. 21-22
(citing Pet. 8a-9a). The Seventh Circuit quickly
explained, however, that any disagreement about
whether to apply Pike was academic because a law
with no rational justification is unconstitutional (under
the Due Process Clause) even if it is nondiscriminatory
(Pet. 9a-10a), and any disagreement over Pike would be
immaterial to this case in any event, for the Seventh
Circujt applied Pike (Pet. 8a-12a), meaning petitioners
.
24
obtained the benefit of its standard even without a
threshold showing of discrimination. Petitioners also
stress the Seventh Circuit’s aside about Pike’s
usefulness due to the overlap between Pike and due
process analysis, under which a law will be held
invalid if it has no rational basis (Pet. 22 (citing Pet.
10a)), but the Seventh Circuit recognized that it did
not need to pursue that question (Pet. 10a). In any
event, the Seventh Circuit applied Pike here, correctly.
5. ThereIs No Confusion or Circuit Split
About Japan Line’s “One Voice” Test.
Because the Amendment is nondiscriminatory and
passes both the rational basis test and Pike's balancing
test, petitioners could prevail only if they presented
empirical evidence on the “more extensive
constitutional inquiry” Japan Line requires for Foreign
Commerce Clause claims. They did not.
As explained above, petitioners presented no
evidence of the Amendment’s burden on foreign
commerce, not even the most fundamental fact of
all—Cavel’s share of the commerce in horse meat for
human consumption in Europe or elsewhere abroad.
Petitioners criticize the Seventh Circuit for looking at
the price of horse meat in Europe, on the ground that
the Foreign Commerce Clause protects our country’s
commerce with other countries, not global markets.
Pet. 24 (citing Pet. 14a). The court, however, merely
acknowledged the unremarkable point that a price
increase could have been empirical evidence that
demonstrated the Amendment’s effect on the supply
and thus on foreign commerce.
tp
25
Belgium attempts to rescue petitioners by
providing additional evidence of the Amendment’s
effect on foreign commerce in horse meat for human
consumption. Belgium 2. But an amicus may not
present facts relating to the case at hand that are not
already in the record. Eugene Gressman et al.,
Supreme Court Practice 727-28 (9th ed. 2007). Thus,
Belgium may not ask the Court to consider this new
evidence in the first instance. And in any event,
Belgium’s attempt fails, for it appears to cover the
period before the Texas law at issue in Empacadora
closed the other two horse slaughterhouses in the
United States, and thus may not take into account the
effect of the Texas law on commerce in horse meat for
human consumption. And even assuming Cavel alone
were the third largest supplier of horsemeat for human
consumption to Europe, as Belgium implies, its market
share may be less than 0.8% of the world market, as
the record indicates. Doc. 134 at 54. If so, the
Amendment’s effect on foreign commerce in horse meat
still would be only de minimis.
Petitioners also presented no evidence on Japan
Line’s “one voice” test, such as any formal or informal
opposition to the Amendment by the federal
government or any of its trading partners, as the
Seventh Circuit observed. Pet. 14a. Petitioners point
to the Foreign Affairs Minister's letter (Resp. 4a), but
the Seventh Circuit rightly gave the letter no weight —
the letter was not one of “protest,” which might have
demonstrated a need for federal uniformity. Pet. 14a.
Rather, it merely stated that Belgium was
“scrutinizing” the Amendment. As the district court
observed (Doc. 134 at 78), Belgium’s scrutiny could
have revealed that the Amendment was perfectly
26
compatible with the federal government’s trade
obligations.
_ As noted above, Japan Line and its progeny
require either a “clear federal directive” or a foreign
policy issue for which federal uniformity is essential to
invalidate a state law on Foreign Commerce Clause
grounds. Container Corp., 463 U.S. at 194. Petitioners
tout the federal government’s “join[ing]” Cavel’s motion
to stay the injunction order in Humane Soc’y, which
they complain the Seventh Circuit disregarded. Pet.
25-26 n.6. They insist that this single sentence, filed
only after a court order (Resp. 7a), “speaks to” the
federal interest in foreign commerce in horse meat for
human consumption. The rules at issue there, however,
concerned how inspections at horse slaughterhouses
are funded, so that one-sentence document cannot be
construed as “speaking to” commerce in horse meat for
human consumption. Moreover, to give this single
document from the executive branch dispositive weight
here would appear to conflict with Barclays Bank’s rule
that executive branch statements that lack the force of
law cannot render a state law invalid.‘ 512 U.S. at
330.
And in any event, far more telling than the federal
defendants’ tepid support for the stay in Cavel’s other
* Contrary to petitioners’ belief (Pet. 26), there
is no “tension” in the Court’s precedents on this point,
for the cases they cite merely state two sides of the
same coin: the lack of an amicus brief is not, standing
alone, enough for a State to prevail on the “one voice”
inquiry, and a statement by the executive branch is
not, standing alone, dispositive against the State.
27
appeal are that (1) the federal defendants did not
appeal the injunction, or participate in Cavel’s appeal
in any way, or file any other documents in support of
the stay, despite Cavel’s candid admission that the
stay was necessary for it to operate lawfully (Humane
Soc’y, 2007 WL 4723381, at *1); and (2) the federal
government has neither intervened nor appeared as an
amicus at any stage in the instant case (Container
Corp., 463 U.S. at 195-96). Even more telling is that
Congress refuses to fund the inspections, without
which there can be no slaughter of horses for human
consumption anywhere in the United States. Consol.
Appropriations Act, 2008, Pub. L. 110-161, § 741, 121
Stat. 1844, 1881 (2007).
Petitioners likewise complain that the Seventh
Circuit ignored the FMIA, which they call a
“congressional finding” that meat regulated by the Act
(including horse meat) substantially affects interstate
and foreign commerce. Pet. 25 (citing 21 U.S.C. § 602).
But this provision is no more than the typical
statement used to demonstrate Congress’s Commerce
Clause authority to regulate a subject matter.
Moreover, the Seventh Circuit rejected petitioners’
construction of the FMIA, holding that it does not
require States to allow horses to be slaughtered for
human consumption, and instead merely requires that
certain procedures must be followed if a State does
allow this. Pet. 5a.
Lastly, petitioners perceive two conflicts in this
area, neither of which affected the result here and
therefore are not implicated in this case. Petitioners
are troubled by the Seventh Circuit’s dicta questioning
whether Japan Line’s “one voice” test survived
28
Barclays Bank. Pet. 22-23, 24 (citing Pet. 10a, 13a-
14a). Yet the Seventh Circuit assumed that Japan
Line survived Barclays Bank and then applied it,
meaning petitioners received the benefit of its rule and
any split would not be implicated here. Pet. 13a-14a.
Petitioners also complain that the Seventh Circuit
created new law by “adopting a requirement for the
quantification of a burden to foreign commerce,” but
they appear to confuse the “burden” inquiry with
Japan Line’s “one voice” test. Pet. 24-26. Indeed, the
Seventh Circuit’s evidentiary analysis was fully
consistent with Am. Trucking Ass’ns’ rule that a
plaintiff must support its claim of a burden on
commerce with empirical evidence. 545 U.S. at 436.
In sum, the Seventh Circuit’s decision is fully
consistent with Japan Line and its progeny, for
petitioners failed to present any evidence that the
Amendment impairs the federal government’s ability
to speak with one voice about foreign commerce in
horse meat for human consumption. Indeed, it is
petitioners’ arguments that conflict with Japan Line,
Barclays Bank, and Am. Trucking Ass'ns.
6. Japan Line Requires No Additional
Articulation.
Petitioners contend that this Court’s review is
needed because Foreign Commerce Clause cases are
few, and lower courts have expressed uncertainty
about how to apply them. Pet. 15-19. Even if
petitioners were correct (and they are not), this is not
a sufficient ground for review in this case, for
petitioners do not (and cannot) claim that any method
Oe
29
for resolving this purported uncertainty would change
the result here.®
Indeed, petitioners merely complain that courts
sometimes use different locutions to describe Japan
Line’s additional considerations for Foreign Commerce
Clause claims (Pet. 15-16), but petitioners fail to
identify a single case in which different words made a
difference in the outcome. Instead, they cite a pre-
Japan Line state court case upholding a “Buy
American” provision in state contracts (K.S.B. Tech
Sales v. N. Jersey Dist. Water Supply Comm'n, 381
A.2d 774 (N.J. 1977)), and a twenty-year-old case
upholding a Delaware ban on product transfer facilities
in its coastal zone for (as here) lack of a cognizable
burden on foreign commerce (Norfolk S. Corp. uv.
Oberly, 822 F.2d 388, 405 (3d Cir. 1987)). Petitioners
also cite a district court case, and they imply
(erroneously) that it used the term “super strict”
scrutiny (it did not) (Pet. 16),° but in any event that
> Thus, for example, petitioners contend that
some courts apply the framework developed for
dormant interstate commerce cases to dormant foreign
commerce claims, rather than applying stricter review
in cases implicating foreign commerce. Pet 15. Even
if this were true, the Seventh Circuit applied Japan
Line’s stricter standard for Foreign Commerce Clause
cases, and petitioner therefore received the benefit of
the more favorable rule.
* Petitioners may be confusing Japan Line’s
“more extensive constitutional inquiry” for Foreign
Commerce Claues cases with the “strictest scrutiny”
“a! eee eae
J ¥ Sole oe
Se eae
30
case merely noted the well-established, “more
demanding” inquiry accorded Foreign Commerce
Clause claims (that is, an inquiry that goes beyond
Pike to include Japan Line's “one voice” test), in the
course of striking down a law that was discriminatory
per se. Natl Solid Wastes Mgmt. Ass’n v. Charter
County of Wayne, 303 F. Supp. 2d 835, 840-41 (E.D.
Mich. 2004). In short, petitioners’ authorities do not
support the notion that courts are “struggling” in
“uncertainty” when applying Japan Line. Pet. 17.
Petitioners also assert that courts and
commentators have indicated a need for guidance in
Commerce Clause cases, but their authorities do not
support them on this point either. Pet. 15-19. For
-example, in United States v. Clark, 435 F.3d 1100,
1103 (9th Cir. 2006), the court expressed uncertainty
about the scope of Congress’s power under the Foreign
Commerce Clause, not the States’ power. And that
some commentators may be troubled by the law being
undeveloped as to Congress’s Commerce Clause power
is of no import here. Pet. 16 (citing Kenneth M.
Casebeer, The Power to Regulate ‘Commerce with
Foreign Nations’ in a Global Economy and the Future
of American Democracy: An Essay, 56 U. Miami L.
Rev. 25 (2001)). Petitioners’ remaining citations
merely state the obvious: this Court has not decided
many Foreign Commerce Clause cases. See, e.g.,
Antilles Cement Corp. v. Acevedo Vila, 408 F.3d 41 (1st
given to laws that actually discriminate against out-of-
state commerce. Norfolk S., 822 F.2d at 400 (quoting
Hughes, 441 U.S. at 337).
31
Cir. 2005); Hartford Enters., Inc. v. Coty, 529 F. Supp.
2d 95 (D. Me. 2008).
Another commentator’s view that the Court’s cases
concerning facially neutral laws “seem quite
inconsistent” is likewise no cause for concern. Pet. 19
(citing Erwin Chemerinsky, Constitutional Law:
Principles and Policies, § 5.3, at 433 (3d ed. 2006)).
Indeed, Professor Chemerinsky later cautions that “it
is important to note that these cases do not disagree as
to the legal standard: All of the cases indicate that
proof of discriminatory impact is sufficient for a facially
neutral law to be deemed discriminatory,” and that
this requires case-by-case analysis. Jd. at 436
(emphasis added). He also lists several factors that
“seem particularly important” on this issue, none of
which is present here: excluding virtually all out-of-
staters, but not in-staters, from a market; costs on out-
of-staters that in-staters do not bear; and a
protectionist purpose. Ibid.
Lastly, the 14-year period since this Court last
decided a Foreign Commerce Clause case cuts against,
not for, petitioners’ speculation that this issue will
surely recur with “increasing frequency.” Pet. 5.
II. Petitioners’ Amici May Neither Supplement
the Evidence in the Record Nor Raise Issues
the Petition Does Not.
Apparently dissatisfied with both the legal
arguments and the factual record developed below,
petitioners’ amici make varying attemptstochangethe ~
nature of the case for the first time in this Court. One
rewrites the Questions Presented. Livestock 2-3. Two
raise arguments not asserted in the petition or decided
32
by the Seventh Circuit: @ purported burden on
interstate commerce in livestock or purported
“interference” with the Humane Methods of Slaughter
Act (7 U.S.C. §§ 1901-1907) (“Humane Slaughter Act”)
(Livestock 3-7), and purported conflicts between the
Amendment and the United States’ obligations under
various treaties (Belgium 5-6). In addition, Belgium
tries to work in new evidence about the effect of the
Amendment on foreign commerce. Belgium 4. But
questions not raised or preserved in the Seventh
Circuit are not properly raised now (Delta Airlines, Inc.
v. August, 450 U.S. 346, 362 (1981)), and it is not the
Court’s usual practice to address issues raised only by
an amicus (Kamen v. Kemper Fin. Servs., Inc., 500 U.S.
90, 97 n.4 (1991)).
Even if amici’s conduct were permitted, however,
their arguments are not certworthy. One of the new
issues the Livestock Association raises is “the critical
statutory issue” of the Amendment’s purported
“interference” with the Humane Slaughter Act, which
requires that livestock be rendered insensible to pain
prior to slaughter for human consumption. Livestock
3-5. Just as the FMIA does not require the States to
‘allow slaughter of horses for human consumption (Pet.
5a), however, nothing in the Seventh Circuit’s opinion
prohibits use of the captive bolt method when killing
horses for other purposes. The other issue the
Livestock Association seeks to inject into this case is its
own cause of action: it argues that the Amendment
impermissibly burdens interstate commerce in the
market of horses to be slaughtered for human
consumption. Livestock 4, 7.
33
Belgium’s brand new issue is that, after having
undertaken the scrutiny it suggested in the letter from
its Minister of Foreign Affairs, it has concluded that
the Amendment “may constitute a ban on exports and
fall within the scope of Article XI of the’ General
Agreement on Tariffs and Trade (GATT), though it
does not explain how. Belgium 5 (emphasis added).
This is too little, too late.
To the extent that Belgium is asking the Court to
consider the merits of an alleged GATT violation,
moreover, the Court has already held that Congress
“foreclosed suits by private persons and foreign
governments challenging a state law on the basis of
GATT in federal or state courts, allowing only the
National Government to raise such a challenge.”
Crosby, 530 U.S. at 386 n.24 (emphasis added); see also
19 U.S.C. §§ 3512(b)(2)(A), 3512(c)(1). Tellingly, the
United States has not challenged the Amendment.
Should a foreign government wish to challenge a state
law as inconsistent with the WTO agreement, it may
request consultations with the United States at the
WTO pursuant to the Understanding on Rules and
Procedures Governing the Settlement of Disputes, in
which case the United States must consult with the
State. 19 U.S.C. § 3512(b)(1)(C).
Belgium is silent about whether the GATT is self-
executing and thus binding domestic law. See Medellin
v. Texas, 128 S. Ct. 1346, 1356 & n.2 (2008). In fact,
the GATT is not self-executing. ITC Lid. v. Punchgini,
Inc., 482 F.3d 135, 161-62 (2d Cir. 2007) (holding that
GATT agreements “are not self-executing and thus
their lega) effect in the United States is governed by
implementing legislation”). Thus, even if the
34
Amendment were challenged successfully before the
WTO Dispute Settlement Body and found to be
inconsistent with the United States’ obligations under
the GATT, that decision would not be binding on the
‘United States. Corus Staal BV v. United States, 395
F.3d 1343, 1349 (Fed. Cir. 2005). Instead, the United
States Trade. Representative, in consultation with
congressional and executive bodies and agencies, is
authorized to decide whether and how to implement
that finding. Jd. at 1349 (citing 19 U.S.C. §§ 3533(),
(g), 3538); see also NSK Ltd: v. United States, 510 F.3d
1375, 1380 (Fed. Cir. 2007).
Belgium also complains that the Amendment
“impinges” on obligations in two other treaties
(Belgium 6), but this argument deserves little
attention. Belgium is not a party to the North
American Free Trade Agreement (NAFTA), of course,
and petitioners never presented evidence that any
party to NAFTA objects to the Amendment. And as
with the GATT, only the United States can challenge
a state law as inconsistent with NAFTA, and if a
NAFTA member challenged a state law inconsistent
with NAFTA, the United States must consult with the
State in any ensuing dispute settlement process. 19
U.S.C. § 3312. As for the Agreement Between the
United States of America and the European
Community on Sanitary Measures to Protect Public
and Animal Health in Trade in Live Animals and
Animal Products (Belgium 6 (citing 9 C.F.R. § 94 et
seq.)), Belgium cites no particular provision. Such
undeveloped arguments are not considered. See, e.g.,
South Dakota v. Bourland, 508 U.S. 679, 697 (1993).
aS
III. This Case Is Not a Proper Vehicle for
Resolving the Questions the Petition
Presents.
The Court’s review is unwarranted on a separate
and independent ground.
As noted above, Cavel admitted that it cannot
operate without USDA inspections, which Congress
refuses to fund. Moreover, Cavel’s appeal from a
federal district court injunction against the USDA’s
alternative inspection system has been dismissed as
moot.’ Accordingly, even if this Court were to grant
the petition, and petitioners were to prevail on their
Foreign Commerce Clause claim, it is unlikely to have
any practical effect. Without inspections, no one in the
United States may slaughter horses for human
-consumption, regardless of the Seventh Circuit’s
decision in this case.
” Cavel’s petition for rehearing and rehearing en
banc is pending as of the filing of this brief. Humane
Soc’y of the United States, No. 07-5120 (D.C. Cir.).
36
CONCLUSION
The petition for a writ of certiorari should be
denied.
Respectfully submitted,
RON MATEKAITIS LisA MADIGAN
DeKalb County Attorney General of Illinois
State’s Attorney MICHAEL A. SCODRO
JOHN FARRELL Solicitor General
Assistant State’s Attorney Mary E. WELSH*
200 North Main Street Assistant Attorney General
Sycamore, Illinois 60178 100 West Randolph Street
(815) 895-7164 Chicago, Illinois 60601
(312) 814-2106
*Counsel of Record
May 16, 2008
| APPENDIX
ree
la
OFFICE OF THE GOVERNOR
Rod R. Blagojevich * Governor
FOR IMMEDIATE RELEASE
May 24, 2007
Gov. Blagojevich signs legislation banning the
slaughter of horses in Illinois for human
consumption
SPRINGFIELD — Governor Rod R. Blagojevich today
signed legislation that bans the slaughter of horses in
Illinois for human consumption. House Bill 1711,
sponsored by State Representative Robert S. Molaro
(D-Chicago) and State Senator John Cullerton
(D-Chicago), bans importing or exporting horsemeat if
any horsemeat will be used for human consumption.
“It’s past time to stop slaughtering horses in Illinois
and sending their meat overseas. I’m proud to sign
this law that finally puts an end to this practice,” Gov.
Blagojevich said.
The Governor announced his support for the legislation
after hearing from advocates, including Bo Derek,
actress and longtime activist for the protection of
horses, in April. Violations of the new state law are
punishable by up to 30 days in jail and a fine of $1,500.
“People were selling horses not knowing that they were
being used and treated like livestock and ended up on
the slaughter room floor,” said Sen. Cullerton. “This
bill will ensure that using horses for the purpose of
human consumption is illegal throughout the State of
Illinois just as it is in 48 other states in the nation.”
2a
“IT am grateful to my colleagues and the Governor for
joining with me in ending this shameless slaughter of
these beautiful animals for the sole purpose of
ensuring fine dining in European restaurants,” said
Rep. Molaro.
“There is no domestic market for horsemeat and,
therefore, no need for this practice to continue in
Ilinois,” Agriculture Director Chuck Hartke said.
“Meat from the slaughtered horses is being shipped
overseas to places like Belgium, France and Japan.”
- Illinois is home to the sole remaining horse
slaughterhouse in the United States, Cavel
International in DeKalb. Two other horse
slaughterhouses in the country, both in Texas, closed
earlier this year after an appellate court rejected their
appeals of a lower-court ruling that the plants were
operating in violation of Texas state law.
“As both a horsewoman and a compassionate person, I
applaud the resolve of the people of Illinois to end the
cruel, bloody trade in horsemeat,” said actress Bo
Derek. “My family hails from the State of Illinois and
I know they would be proud of the actions taken on
behalf of our horses by Gov. Blagojevich, Rep. Molaro
and Sen.Cullerton.”
“With a stroke of his pen, Gov. Blagojevich has brought
the brutal slaughter of horses in the United States to
an end. Hereafter, may we only hear of horse slaughter
recounted in history books as a sign of how we have
progressed in our treatment of these majestic animals,”
said Chris Heyde, deputy legislative director for the
Society for Animal Protective Legislation.
3a
“On behalf of our national coalition that includes
thousands of Illinois horse owners, we are deeply
. grateful to Gov. Blagojevich, Rep. Molaro, Sen.
Cullerton, and all members of ‘the Illinois General
Assembly who have worked so hard to pass this
essential legislation to protect horses from the cruel
practice of horse slaughter,” said Gail Vacca of Top of
the Hill horse farm in Wilmington. “Illinois horse
owners are proud today in the knowledge that our state
legislature has set the bar in raising the standard for
the humane treatment of our nation’s horses.”
4a
Kingdom of Belgium
The Minister for Foreign Affairs
KABBZ/TL/BA/ap/
Ask for Thomas Lambert
Phone number 02/5014107
annexes) 1
datum
Governor Rod R. Blagojevich
Office of the Governor
207 State House
Springfield, IL 62706
UNITED STATES OF AMERICA
Concern : Horse Bill 1711, amending the Illinois Horse
Meat Act
Dear Sir,
Belgium is a traditional horse meat consuming and
importing country. It was brought to our attention by
Belgian horse meat importers that the State of Illinois
has recently approved an amendment to the Illinois
Horse Meat Act. This Act seeks to prohibit the
purchase, processing, transportation and _ sale
(including exportations) of horsemeat for human
consumption. We were also informed of the fact that no
consumption of horsemeat takes place in the State of
Illinois and that all current producers of horsemeat
located in Illinois export their products.
Belgium is amongst one of the destinations of
horsemeat from Illinois.
Sa
Horse Bill 1711 was enacted by the Illinois General
Assembly on May 16, 2007. Given the interest Belgium
takes in this type of exportations frum Illinois, we will
be carefully scrutinizing the compatibility of Horse Bill
1711 with international trade rules, including those
existing under the World Trade Organisation.
Attached to this letter you will find some figures about
the importance of horse meat consumption from
Belgium.
Sincerely,
Vu pour Ja legalisation de la signature de:
Gezien voor de legalisalie van de handtekening van:
De Gucht, Minister of Foreign Affairs of Belgium
Karel
Washington
N’ 4112070613012924
Cette legalisation ne garantit pas l’authenticite du
contenu du document.
Deze legalisalie waarborgt de authenticiteit van de
inhoud van he) document niet.
/s/ Karel De Gucht
13/06/2007
6a
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
THE HUMANE SOCIETY OF THE UNITED STATES,
et al., Plaintiffs
Vv.
MIKE JOHANNS, Secretary, United States
Department of Agriculture, et al., Defendants.
Civil Action No. 06-0265(CKK)
THE FEDERAL DEFENDANTS' RESPONSE
TO THE COURT'S APRIL 2, 2007 ORDER
The Federal Defendants, Mike Johanns, Secretary,
U.S. Department of Agriculture, and Barbara J.
Masters, Administrator, Food Safety and Inspection
Service, respectfully submit this response to the
Court's April 2, 2007 Order. In its Order, the Court
requested that “[t]he Federal Defendants . . . state
their position with respect to Defendant-Intervenor
Cavel International, Inc.’s Emergency Motion to Stay
by April 3, 2007, at 9:00 a.m., [also] indicating whether
they intend to file briefing on this matter.” This
morning, April 3, 2007, the Court granted the Federal
Defendants’ motion for an enlargement of time to 3:00
pm today to file their response to the €ourt's April 2,
2007 Order.
Regarding Defendant-Intervenor Cavel’s Motion,
the Federal Defendants support the Motion and the
relief requested therein, but will not file a brief as the
Ta
Federal Defendants’ previous filings comprehensively
present the Federal Defendants’ position.
Respectfully submitted,
/s/ Jeffrey A. Taylor, United States Attorney
/s/ Rudolph Contreras, Assistant United States
Attorney
‘s) Beverly M. Russell, Assistant United States
Attorney : |
U.S. Attorney’s Office for the District of Columbia,
Civil Division
555 4th Street, N.W., Rm. E-4915
Washington, D.C. 20530
Ph: (202) 307-0492
Of Counsel:
Thomas Bolick, Esq.
Rick Herndon, Esq.
U.S. Dept. of Agriculture
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.