Horse Slaughter and the Commerce Clause

When United States District Judge Frederick Kapala extended a temporary restraining order allowing an Illinois horse slaughterhouse to continue operating through June 28, the decision was characterized by many people as a statement on the morality of horse slaughter. In fact, the litigation raises a more fundamental legal question: What are the limits on the power of an individual state to regulate interstate and foreign commerce?

At issue is HB 1711, which garnered strong support among lawmakers from across Illinois and was signed by Gov. Rod Blagojevich on May 24, 2007. The law, which took effect immediately, prohibits the slaughter of horses for human consumption in Illinois, and also makes it illegal to possess, import into the state, or export out of Illinois horsemeat for human consumption. The slaughterhouse was closed until Judge Kapala issued a temporary restraining order allowing operations to continue on June 1, 2007.

Cavel International, a Belgian company that operates the DeKalb, Ill., slaughter facility, filed a lawsuit in federal court the day after HB 1711 was signed, claiming that only the United States government has the authority to regulate interstate and international commerce. (Congress adjourned last year before the Senate could consider the American Horse Slaughter Prevention Act; similar legislation was reintroduced in January 2007.) The Illinois Attorney General, on the other hand, argued that there was no evidence that foreign commerce would be harmed by the law, and that the state has the authority to regulate the treatment of animals within its borders.

Tucked away in Article I, Section 8 of the United States Constitution is the Commerce Clause, which states that "Congress shall have Power … To regulate Commerce with foreign Nations, and among the several states, and with the Indian tribes." The Commerce Clause clearly grants to Congress the power to regulate interstate and international commerce, an interpretation that has been upheld repeatedly by the United States Supreme Court. An implied, but widely recognized, corollary is the so-called "dormant" Commerce Clause, which places limits on the power of an individual state to regulate interstate and foreign commerce.

Recent Commerce Clause cases generally have involved federal regulation of businesses, but courts also have been willing to take on constitutional challenges to state laws. In 2005, for example, the United States Supreme Court relied on the Commerce Cause to invalidate laws enacted in Michigan and New York that allowed local wineries to sell their products directly to consumers while restricting the ability of out-of-state wineries to do the same thing. The merits of the activity being regulated by the state laws, the sale of wine directly to consumers, was not a factor in the decision-making process.

A strong argument can be made that HB 1711 runs afoul of the "dormant" aspect of the Commerce Clause because it regulates--to the point of extinction--interstate and foreign commerce in horsemeat for human consumption produced in Illinois. The law makes it illegal to slaughter horses to produce meat for human consumption, all of which was shipped abroad by Cavel, and also restricts the interstate shipment of such horse meat products.

To survive a Commerce Clause challenge, a state law must satisfy several criteria. The law must meet a legitimate state interest, it must not discriminate against out-of-state businesses in favor of local businesses, any regulation of interstate commerce must be incidental and minor, and any costs imposed on interstate commerce must not be excessive. While the humane treatment of horses and other animals is a legitimate state interest, no single factor is controlling. All must be considered.

Earlier this year, the Fifth Circuit Court of Appeals upheld a Texas state law that effectively closed the country’s other two horse slaughterhouses. The Texas law, which had been on the books for more than a half-century, made it illegal to sell horsemeat for human consumption or to possess horsemeat with the intent to sell it for human consumption. Unlike HB 1711, which restricted the import and export of horsemeat products aimed at dinner tables, the Texas law included no such shipment regulations. The Fifth Circuit determined that the law treated “both intrastate and interstate trade of horsemeat equally by way of a blanket prohibition” and found that the Commerce Clause was not violated. The Court also noted, however, that state laws with restrictions on import and export likely would face problems with the Commerce Clause.

About the Author

Milt Toby, JD

Milt Toby is an author and attorney who has been writing about horses and legal issues affecting the equine industry for more than 40 years. Former Chair of the Kentucky Bar Association's Equine Law Section, Milt has written eight nonfiction books, including national award winners Dancer’s Image and Noor. He teaches Equine Commercial Law in the University of Louisville's Equine Industry Program.

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