Commerce Clause

Puppies and Kittens Trump the Constitution

The new federal ban on animal cruelty converts the Commerce Clause into a general police power.

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I guess I should say at the outset that I do not favor torturing puppies and kittens. But there is a difference between opposing cruelty to animals, which is already illegal in all 50 states, and supporting a law that makes such conduct a federal felony.

That distinction seems to have eluded every member of Congress, which unanimously approved the Preventing Animal Cruelty and Torture (PACT) Act, a bill that President Donald Trump is expected to sign soon. The PACT Act exemplifies the widely accepted but pernicious belief that Congress has free-ranging authority to address anything that bothers its members, regardless of whether it is already addressed by state law and regardless of whether it plausibly fits within their enumerated powers.

The bill, which the House passed by a voice vote last month and the Senate passed by unanimous consent last week, makes it a crime, punishable by up to seven years in prison, "for any person to purposely engage in animal crushing in or affecting interstate or foreign commerce." The PACT Act counterintuitively defines "animal crushing" to include not only crushing but also burning, drowning, suffocation, impalement, or any other action that causes "serious bodily injury."

That puzzling nomenclature reflects the bill's roots in the Animal Crush Video Prohibition Act, a 2010 law that criminalized production and distribution of images that cater to a highly specific sexual fetish epitomized by the deployment of high-heeled shoes against small furry creatures. That law banned the trade in such videos, provided they qualify as "obscene," but it did not address the acts they record.

Although critics who thought the 2010 law did not go far enough saw that omission as a glaring defect, there was a constitutional rationale for limiting the ban to images "distributed in, or using a means or facility of, interstate or foreign commerce." In passing the ban, Congress was relying on its power to "regulate commerce with foreign nations, and among the several states."

Under the PACT Act, by contrast, Congress is not simply regulating interstate commerce. It is purporting to prohibit any act of animal cruelty "affecting" interstate commerce, whatever that means. This understanding of the Commerce Clause converts it into the sort of general police power that the Constitution reserves to the states.

While the Supreme Court for many years has stretched the Commerce Clause to accommodate nearly everything Congress might want to do, there are still supposed to be some limits. In 1995, for instance, the Court struck down a federal law that made it a crime to possess a gun near a school, which the government defended based on the same sort of tenuous relationship to interstate commerce invoked by the PACT Act.

"If we were to accept the Government's arguments," Chief Justice William Rehnquist observed in the majority opinion, "we are hard pressed to posit any activity by an individual that Congress is without power to regulate." The Court said the Commerce Clause extends only to "the use of the channels of interstate commerce," regulation of "instrumentalities of interstate commerce, or person or things in interstate commerce," and local commercial activity that has a "substantial relation" to interstate commerce.

Congress subsequently amended the Gun-Free School Zones Act, specifying that it applies only to a firearm "that has moved in or that otherwise affects interstate or foreign commerce." According to several federal appeals courts, that tiny jurisdictional fig leaf was enough to save the law.

If those courts are right, the PACT Act may well be constitutional. But if merely alluding to interstate commerce is enough to justify congressional action that is not otherwise proscribed, "the Federal Government is no longer one of limited and enumerated powers," as Justice Clarence Thomas warned in a 2005 Commerce Clause case.

Republican legislators who claim to defend the Constitution, including its limits on their own power, once viewed that prospect with alarm. The PACT Act shows that is no longer true.

© Copyright 2019 by Creators Syndicate Inc.

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  1. The PACT Act exemplifies the widely accepted but pernicious belief that Congress has free-ranging authority to address anything that bothers its members

    Why, where would they get such an idea? Oh, that’s right. They’ve gotten away with it over and over.

    Both R and D are undermining the Constitution in ways that suit them, hoping they’re the last party standing when it all comes down.

    1. In my letter to my Georgia US Senators, I warned them that along with the many reasons for this Bill being unconstitutional, a law like this will be twisted against Georgia hunters and meat eaters someday.

      They voted unanimously for this Bill.

      US Senator Johnny Isakson checked out years ago.

  2. I wonder if we could satisfy the crush video fetishists by crushing politicians instead. Very pointy high heels. Slowly, starting with each toe joint, to prevent them crawling away then the finger joints. But I don’t insist on the specific order.

    1. I have a few pairs of heels that might be up to the task… I’d hate to ruin them over something as shabby as a politician, regardless of any satisfaction one might get from it…

      “Is that a person’s toe impaled on your heel?”

      “Oh, my gosh. I hadn’t noticed. How embarrassing!”

      They’d never let me back in the country club again… pish. 😉

    2. I have never seen or even heard of these videos before, but now I want to see it, I mean my friend wants to see one, yeah.

    3. Or transgender plus-size black heel-wearers crushing white men?

      1. Isn’t that just the latest Lizzo music video?

  3. “I do not favor torturing puppies and kittens.”

    That is the best you can come up with?

    You do not favor it. I don’t favor strawberry ice cream.

    Jacob Sullum grow a pair.

    1. Needs moar “To Be Sure”

    2. Hey, what have you got against strawberry ice cream, you bigot?

    3. I don’t really understand your objection here.

  4. I don’t know why you think Congress can’t prohibit the production of crush videos – I’m pretty sure we’ve already decided they have the authority to make everyone buy one. Well, you’d have to buy one or pay a penaltax, but same thing.

  5. Ha! A Tenth Amendment piece! How quaint….

    We confirmed a jurist to the supreme court who opined in her testimony before the senate that it would be within the government’s powers to require everyone to buy broccoli.

    I think we can all just go ahead and admit that the 10th is not only dead and buried, but also long forgotten. The name has weathered from the tombstone. It’s pining for the fjords…. This… is an ex-amendment.

    1. deceased, passed on, shuffled off this mortal coil, bereft of life it rests in peace, gone to join the bloomin’ choir invisible…

      1. “Page not found” but it sounded interesting.

        1. Needs less quoting.

          1. Thanks.

            “I have some grudging admiration for them,” said Akhil Amar, a professor of law and political science at Yale and author of a book on the Constitution. “All the more so because it’s such a bad argument. They have been politically brilliant. They needed a simplistic metaphor, and in broccoli they got it.”

            “…bad argument”. Hahaha. It was a great way to show how ridiculous the Democrat’s claim of authority was.

            I like that more and more Lefties have publicly outed themselves, so its easy to throw it back in their face in the future.

          2. Good article, thanks. Funny how the broccoli analogy confounds the greatest of legal authorities. Well, yeah, sure, but….

            Nothing personal but come on, Ginsberg, give it up already.

            1. Except it wasn’t an analogy.

              She literally said that the US government had the power to require people to buy broccoli. She said it would be a bad idea, but it was perfectly within the purview of the government.

              Anyone who can read should be able to understand the constitution well enough to know that it is written very explicitly to prevent exactly that interpretation. And any “scholar” who claims otherwise is being mendacious.

              And every Senator who voted to confirm her should have been ridden out of town on a rail. So it is our fault. We keep electing people who ignore the constitution at our own peril. (And not the Castle Anthrax sort of peril)

  6. I think almost everyone agrees with the initial premise of this legislation. Who is in favor of animal cruelty without any caveats? The problem is that the feds have no Constitutional jurisdiction. The problem also is that this sets up a slippery slope for PETA, vegans, and other such activists to push their agenda

    1. “The problem is that the feds have no Constitutional jurisdiction.”

      Ha! Tell me another one!

      Interstate Commerce Clause says the following: “If thou shalt deploy booger beam upon the land, or bloweth thy nostrils in any manner, it doth affect the Interstate Commerce in booger rags. Accordingly, before thou bloweth thy nose, thou shalt consult the Congress of the land, concerning matters of when, where, and how thou shalt bloweth upon thine nostrils.”

    2. We are already well done the slippery slope of Wickard v Filburn.

      Left the barn almost a century ago.

      1. Yep. Congress can prohibit anything.

        The Commerce Clause covers all activity, even that which you can do for yourself: cleaning your house, cooking your food, repairing your car, mowing your lawn, …

        The Penaltax covers all inactivity.

        1. You see this even with modern democrats touting things like federal labor laws. They especially seek praise for child labor laws despite most states having already passed state level laws. But congress needs to feel special sp they do the states job.

    3. Something must be done! Who cares about petty things like about jurisdiction and Constitutional authority if it gets in the way of getting things done, you anachronism!

  7. I noticed that the House did a Voice Call which evidently means that the Bill passed but the House does not have a veto-proof majority, like the US Senate does.

    There are many reasons for Trump to not sign this Bill and fucking with the Democrat controlled House of Representatives is one of them.

    1. That would be awesome! Doing shit just to fuck with the Dims. If they had brains, they might realize what he’s doing and plan around it.

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  9. Puppies and Kittens Trump the Constitution

    Freud called. He has a penis pen to sell you.

  10. Flawed as it is, this may be the only act of bipartisanship in our lifetime.

  11. Bowhunters beware! I can’t tell you how many animals I and my friends have impaled over the years. Then we burn them over a fire until medium rare, then we crush them up with our teeth. Then we drown them with beer or whisky. But we don’t SUFFOCATE them!

    1. And you grind them up into little tiny bits aka sausage.

  12. Until and IF the states ever become outraged enough, the only path they will have to regaining some actual power or even a semblance of influence over the Federal government will be to invoke an Article V convention.

    I don’t see that happening any time soon. We would need to see more direct federal intervention in state government operation and politics first.

    And even IF an article V convention were to be invoked, it’s never been clear who determines when and IF state applications for a convention are valid and for what time period. The Federal government (via congress and the supreme court) could simply ignore it. (what would states do?)

    In that case Federalism would truly be dead.

    1. There is also the danger that a convention would be hijacked by a faction that wants a more centralized federal government and an effective elimination of state sovereignty in favor of a provincial system.

      1. Modeled after the EU or pretty much any government in Europe. “We are the only developed country in the world that doesn’t….”

    2. Since the states who called for it would at least want to convene, they could just do it. Any states that objected could be ignored if they didn’t show up.

  13. This seems like one of those laws that would easily be abused. Screaming Badger is actually not far off I think. Driving down the road with your fresh kill from a hunt in the truck? Are we sure you didn’t kill that while hunting and not by slowly sinking a high heel into it? Better arrest you and charge you to find out. Then you can offer the defense that you were hunting and prove it.

    From the law, definitions section:
    “(3) the term ‘euthanizing an animal’ means the humane destruction of an animal accomplished by a method that—

    “(A) produces rapid unconsciousness and subsequent death without evidence of pain or distress; or

    “(B) uses anesthesia produced by an agent that causes painless loss of consciousness and subsequent death.”.

    Lets say I make a trapping video. So if I’m dispatching a Raccoon on my trapline and when it goes into death throes when shot, is it going to be up to a jury of 12 suburban moms as to whether or not the animal died without evidence of pain or distress?

    Is the prosecutor going to spin a tale about how what I was doing was definitely not normal trapping?

    If run over and crush raccoon with my car, even though it is unintentional, is the prosecutor going to use the fact that the buggers destroy my corn as evidence of malice and therefore intent?

    I know there are the exceptions written into the law, but all of this looks like we get arrested first and then we have to prove we were doing the excepted activity.

    These laws assume that federal prosecutors will be reasonable. Most of them will be. But it only takes one asshole to ruin someone with a law like this.

    1. That’s what prosecutorial discretion is for.

      You act as though some prosecutor might use child pornography laws that are intended to protect children to prosecute a middle school girl who takes pictures of her boobs. And we all know, that would never happen.

      So what makes you think this law would be any different?

  14. “…the widely accepted but pernicious belief that Congress has free-ranging authority to address anything that bothers its members, regardless of whether it is already addressed by state law and regardless of whether it plausibly fits within their enumerated powers.”

    Only doing what The People want. Ask any HOA board.

  15. can people still eat roadkill?

  16. So the left, on the whole, believes libertarians and conservatives promote and enjoy cruelty to animals because if you don’t support the bill, you must be against it.

    1. And hate women and children. And are racist.

      1. If’n ye are not in favor of federalizing ALL production of food, clothes, and housing, then ye are against feeding, clothing, and housing the peeples!!!!

  17. This is so typical. Puppies and kittens are included in this legislation but filigreed Siberian hamsters are specifically excluded

  18. Like many federal statutes now, this one leaves to the trial court the determination of whether the perpetrator was affecting interstate commerce. In a jury trial, a jury would be asked to decide that.

  19. This is ridiculous. Not every crime rises to a Federal level.

  20. This is where they draw the line as the federal government regulating something that isn’t an enumerated power? Regardless of liberal misinterpretations of the commerce clause or general welfare clause housing, education, healthcare, environment, transportation, wages, retirement, wealth redistribution, etc… none of these are constitutionally enumerated powers. 99% of laws are unconstitutional. The federal government has the authority to establish a military, build postal roads, mint money and not a whole lot beyond that.

  21. Time to start questioning political candidates on their loyalty to this country and its foundation (The Constitution) instead of probing loaded questions at them on their favorite ice cream…

    Kudos to echospinner for the ice cream example.

    I wonder if all their answers will be, “The Constipu–What? I don’t think I understood the question..”

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