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National Meat Association v. Harris

The opinion pages of the Law Weekly have recently been abuzz with talk of National Meat Association v. Harris.  Georgetown students have weighed in on the Georgetown Supreme Court Institute’s policy of permitting advocates to request closed-door moot courts, which the National Meat Association (“Petitioner”) did in this case.  The animal rights community is strongly invested in the case because the Petitioner is bringing a preemption challenge to a California law that requires humane treatment of animals above and beyond the requirements of the Federal Meat Inspection Act (“FMIA”).  So far, the debate has centered on the Supreme Court Institute’s policies and the questionable behavior of the meatpacking industry.  Little has been said about the legal merits of the case.

            The issue presented to the Supreme Court is whether a California law requiring slaughterhouses to “immediately euthanize” any nonambulatory animal on its premises, rather than to hold and inspect them, is preempted by federal law.

Background and Procedural History

            The California law in question is California Penal Code § 599f, which was enacted in response to video footage, released by the Humane Society in 2008, depicting slaughterhouse workers kicking, electrocuting, dragging, and ramming “downer” cows – those that are non-ambulatory.  The footage also shows workers spraying pressurized water into cows’ nostrils in an attempt to get them to stand.  The slaughterhouse engaged in this practice to comply with the FMIA, which allows the slaughterhouse to slaughter and sell as meat those cows that can walk on their own power.

            California passed § 599f to alleviate concerns that downer cows were more likely to be diseased.  The law bans the receipt and slaughter of downer animals (not limited to cows), and requires the humane handling of those animals.  The Petitioner, which represents producers of swine livestock and pork products, filed a lawsuit in the Eastern District of California seeking a preliminary injunction to prevent the State from enforcing the law.  The district judge granted the injunction on preemption grounds.

            The opinion below, written by Chief Judge Alex Kozinski of the Ninth Circuit Court of Appeals, reversed the District Court and held that neither express nor implied preemption invalidated § 599f.  The Chief Judge began by noting that there is a “strong presumption against preemption, especially when the state law deals with matters like health and animal welfare, which have historically been regulated by states.”  Then, in two sections, the court rejected preemption of the receipt and slaughter ban, and the humane handling requirement.

            The crux of the Ninth Circuit’s ruling is that the California law does not fall within the province of the FMIA’s express preemption clause, but does fall within the Act’s savings clause. 

            First, the preemption clause, 21 U.S.C. § 678, states, in relevant part, that “[r]equirements within the scope of this chapter with respect to … operations of any establishment at which inspection is provided … which are in addition to, or different than those made under this chapter may not be imposed by any State…”  Because the FMIA regulates the receipt and slaughter of animals, and calls for the humane treatment of animals, the Petitioner argued that the different or additional terms of § 599f were preempted by § 678 of the FMIA. 

Chief Judge Kozinski rejected this view, arguing instead that the California law only regulated the type of animal that could be slaughtered, an approach taken by other Courts of Appeals in Cavel Int’l, Inc. v. Madigan and Empacadora de Carnes de Fresnillo v. Curry, both of which upheld state laws banning the slaughter of horses for meat.  Under this view, the regulations of § 599f were outside the scope of the FMIA, and therefore not preempted.

            Second, the Chief Judge argued that implied field preemption did not apply because the FMIA contains a savings clause, also contained in § 678, which specifies “[t]his chapter shall not preclude any State … from making requirement[s] or taking other action, consistent with this chapter, with respect to any other matters regulated under this chapter.”  In his words, the clause “shows that Congress didn’t intend to occupy the field of slaughterhouse regulation.” 

Furthermore, conflict preemption did not apply because “[i]t’s not physically impossible to comply with both section 599f and the FMIA.”  The court therefore rejected Petitioner’s challenge, and Petitioner appealed the holding on express preemption.

Oral Arguments

            On Wednesday, November 9, the Nine heard oral arguments in Harris.  Counsel for the Petitioner and the Deputy Solicitor General split time arguing in favor of preemption, and the California Deputy Attorney General argued the other side.

            The course of the oral arguments suggested that the Supreme Court would reverse the Ninth Circuit and hold that § 599f is expressly preempted by the FMIA. 

Counsel for the Petitioner and the amicus had a relatively easy time answering questions.  The Justices were mostly concerned with identifying the contours of the Petitioner’s argument, such as whether California could regulate the sale of animals prior to their entering the slaughterhouse gates.  The Petitioner’s counsel answered that this would be permissible because the scope of the FMIA only covers activities once the animals arrive at the slaughterhouse.

            Continuing in the line of questioning designed to determine at what point the states can regulate meatpacking, the Justices also investigated the distinction between cases like Cavel and Empacadora and Harris.  Counsel explained that the difference between a prohibition on slaughtering horses and humane-treatment and sale requirements for meat animals is that, whereas a horse is always easily identified as such, a non-ambulatory animal is less easily identified as being non-ambulatory, and the condition of being non-ambulatory might only present itself within the slaughterhouse gates.  If slaughterhouse workers and inspectors first identify a non-ambulatory animal within the gates, then the inspection is an “operation” and therefore falls within the scope of the FMIA.

            Respondent dealt with issues that were far more critical to the case, but struggled to convince the Justices.  Counsel argued that the scope of the FMIA was limited to animals that would become meat.  As soon as an animal became non-ambulatory, it fell outside of the scope because it would never become meat.  But as Justice Scalia pointed out, the FMIA actually does regulate the treatment of those animals, despite the fact that they might not become meat – it calls for their humane treatment and for their re-inspection.  And the Chief Justice added that “you don’t know whether they are going to become meat until after the federal process of post-mortem inspection.”

            Justice Breyer made a comment that indicated that the Bench was frustrated with Respondent’s argument.  He told counsel that Petitioner was making an “obvious, simple argument” and asked for Respondent’s “obvious, simple answer.”  If such an answer was forthcoming, it did not appear satisfactory to the Justices. 

            In a line that could sum up the Court’s holding, Justice Scalia said, “I don’t know how you can get around that fact that [immediate euthanasia] is an additional requirement.”

Impact on Animal Rights

            It is not immediately clear why the animal rights movement considers § 599f such an important law.  The FMIA already calls for the humane treatment of downer animals, and its mandate that downer animals be inspected prior to being euthanized allows inspectors to screen for diseases within the anima population.

            Wayne Pacelle, the CEO of the Humane Society, recently discussed the case in a blog post entitled “Farm Animal Protection in Jeopardy at the Supreme Court.”  Pacelle’s argument is that, in lieu of Congress’ lack of willingness to create stronger regulatory protections for animals, only the States can take action.  Pacelle accused the Obama administration of giving the “agribusiness industry” “yet another valentine,” and said that the USDA could not be trusted to adequately enforce existing protections.

            He also expressed concerns that if the Court invalidates the California law, state laws prohibiting the slaughter of horses might be next. 

            Georgetown Law will be hosting a post-argument panel discussion on Tuesday, November 15 in Hotung 2000 from 12:10 – 1:10 pm.

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