Cavel Intern., Inc. v. Madigan

• Decision Date: 21 September 2007
• Docket Number: No. 07-2658.,07-2658.
• Parties: CAVEL INTERNATIONAL, INC., et al., Plaintiffs-Appellants, v. Lisa MADIGAN, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

500 F.3d 551

CAVEL INTERNATIONAL, INC., et al., Plaintiffs-Appellants, v. Lisa MADIGAN, et al., Defendants-Appellees.

No. 07-2658.

United States Court of Appeals, Seventh Circuit.

Argued August 16, 2007.

Decided September 21, 2007.

J. Philip Calabrese (argued), Squire Sanders & Dempsey, Cleveland, OH, for Plaintiffs-Appellants.

John E. Farrell, DeKalb County State's Attorney's Office, Sycamore, IL, Mary E. Walsh (argued), Office of the Attorney General, Civil Appeals Division, Chicago, IL, for Defendants-Appellees.

Robert C. Pottinger, Barrick, Switzer, Long, Balsley & Van Evera, Rockford, IL, for Amicus Curiae.

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 countries, 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 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 slaughtering horses. Until recently it was one of three such facilities, but the other two, both in Texas, stopped slaughtering 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 auctions. 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 slaughterhouses 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 Representative Molaro).

In the United States, horses are killed in slaughterhouses only when the horses' flesh is destined for eating 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, 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 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, 7 L.Ed. 412 (1829) (Marshall, C.J.); United Haulers Ass'n, Inc. v. Oneida-Herkimer Solid Waste Management Authority, ___ U.S. ___, 127 S.Ct. 1786, 1792-93, 167 L.Ed.2d 655 (2007).

Cavel moved for a preliminary injunction against the enforcement of the amendment. The district court declined 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, 500 F.3d 544, 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 preemption 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 slaughterhouse by forbidding horses to be slaughtered. The argument 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 has a legitimate interest in regulating the production of human food whether intended for domestic consumption or for export—exporting meat unfit for human consumption would be highly damaging to the nation's foreign commerce—it was natural to make the Act applicable to horse meat. That was not a decision that states must allow horses to be slaughtered for human consumption. The government taxes income from gambling 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 production 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 establishment 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 Inspection 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 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 consumption. If that subsection is valid, Cavel loses its case.

The clearest case of a state law that violates the commerce clause is a law that discriminates in favor of local firms. E.g., Chemical Waste Management, Inc. v. Hunt, 504 U.S. 334, 112 S.Ct. 2009, 119 L.Ed.2d 121 (1992); Bendix Autolite Corp. v. Midwesco Enterprises, Inc., 486 U.S. 888, 108 S.Ct. 2218, 100 L.Ed.2d 896 (1988); American Trucking Ass'ns v. Scheiner, 483 U.S. 266, 107 S.Ct. 2829, 97 L.Ed.2d 226 (1987); Baldwin v. G.A.F. Seelig, Inc., 294 U.S. 511, 521-22, 55 S.Ct. 497, 79 L.Ed. 1032 (1935) (Cardozo, J.). Suppose a state passed a law that forbade the importation of wild baitfish. That would be a discrimination against interstate and foreign commerce. This would not make the law unconstitutional per se, because the state might be able to...