Cat Lovers Beware! You have been “Wickarded”.

The Eleventh Circuit of US Courts of Appeal issued a decision that the Animal Welfare Act, passed under the egis of the Commerce Clause, gives authority to the USDA to regulate Hemingway’s cats (or at least the progeny of Hemingway’s cats).   For those that have not visited Key West and Hemingway’s house there, it is important to the story that the six-toed cats are a fixture—a living and roaming exhibit of the museum.  After all, there are well over fifty kitties roaming the grounds.  Apparently, several years ago a visitor to the museum thought that the cats were not being cared for appropriately and filed a complaint.  This complaint resulted in a district court and then appeals court ruling, both times in favor of the government and the regulation.

The Animal Welfare Act regulates circuses, zoos, and traveling animal shows of all kinds.  The museum may be housed intrastate, but Key West is a travel destination and the museum, much like the motel in Heart of Atlanta v. U.S. 379 US 241 (1964), serves interstate travelers and uses the cats to market to those visitors.  Indeed, without tourists traveling to Key West and get a sense of Margaritaville, the museum would not be a viable enterprise.  Given this substantial connection to interstate commerce, Wickard v. Filburn 317 US 111 (1942)applies.  Harm to the cats is equivalent to the harm to interstate commerce.  Based upon the ruling, the museum must either house all the cats in cages overnight or erect a much higher fence keeping the cats within the borders of the museum for their own safety.   And, if the USDA does not already, they clearly have the ability to regulate the housing and care of all the show animals in the various local, state, regional, and national competitions as well as those 4H animals that head off to the county and state fairs.

The lower courts were clearly following precedent, but would the justices of the Supreme Court be equally deferential?  Yes the majority cited Wickard in Gonzalez v. Raich 545 US 1 (2005) to justify striking California’s medical marijuana law.  That the substantial effect was on the black market rather than the legal market was not a concern for the justices.  Here though, could we see them taking an alternative route?  Distinguishing the Six-toed Cat Case from Heart of Atlanta or Wickard? 

In Heart of Atlanta, the justices made the reasonable argument that if you cannot find a place to stay while traveling you are less likely to travel.  However, are the cats similar?  If the federal government does not come in and regulate the cats, will people stop flocking to the sunny Florida Key?  Or is this situation another example of overreach by the federal bureaucracy as it tries to get its hands (paws) on a local police powers issue?

It is not known whether the museum will appeal to the justices for relief.  I hope so.  And, I hope the justices take it and reverse the lower courts.  Why?  Because I want to be able to talk about the Six-toed cat case right along side the Sick Chicken case.

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Filed under Federalism, The Commerce Power

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