Congress Tortures the Constitution To Obtain Permission for a Federal Animal Cruelty Law

Where does Congress get the authority to redundantly criminalize abuse of mammals, birds, amphibians, and reptiles?

Yesterday the House of Representatives unanimously approved a bill that would make "animal crushing" a federal felony punishable by up to seven years in prison. The Preventing Animal Cruelty and Torture (PACT) Act exemplifies the 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 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." But in case you're worried that stepping on a cockroach or a spider could expose you to federal prosecution, the PACT Act applies only to mammals, birds, reptiles, and amphibians.

The case for a federal statute criminalizing animal cruelty consists mostly of the observation that there currently is no such law. Since every state already has an animal cruelty law and the republic has managed to survive for 243 years without a federal version, you may not find that argument persuasive.

But perhaps you did not realize that "abused animals are sometimes taken across state lines," as Sara Amundson, president of the Humane Society Legislative Fund, points out. According to Amundson (as paraphrased by The New York Times), interstate transportation "complicat[es] the prosecution of such cases."

The Times adds that "there is the issue of resources," an argument that could be used both for and against pretty much any federal statute that duplicates state laws. Supporters of the PACT Act also note that animal abuse is often a precursor to violence against humans, although it's not clear what that has to do with the purported need for a federal law.

If the public policy case for the PACT Act is fuzzy, the constitutional justification is even harder to understand. The bill applies to "animal crushing in or
affecting interstate or foreign commerce," which the Constitution gives Congress the power to "regulate." The power to regulate interstate commerce, of course, is not the same as the power to regulate anything that can be said to affect interstate commerce, although you could be forgiven for concluding otherwise after reading the Supreme Court's precedents in this area.

Even based on the Court's absurdly broad reading of the Commerce Clause, it is rather mysterious how prosecutors and judges are supposed to decide whether boiling a bunny, flaying a frog, or waterboarding a weasel "affects" interstate commerce enough to invoke that provision. The most important argument against the bill—one that apparently did not occur to a single legislator—is that Congress simply does not have the constitutional authority to broadly criminalize such actions, however abhorrent they may be.

The roots of the PACT Act can be traced to United States v. Stevens, the 2010 case in which the Supreme Court overturned a 1999 law aimed at "crush videos," which cater to a highly specific sexual fetish involving high heels deployed against little furry creatures. That law made it a crime to produce, sell, or possess "a depiction of animal cruelty," defined as one "in which a living animal is intentionally maimed, mutilated, tortured, wounded, or killed" when that conduct violates federal or state law. Noting that depictions of animal cruelty are not categorically unprotected by the First Amendment, eight justices concluded that the ban was unconstitutionally overbroad.

In response to that decision, Congress passed the Animal Crush Video Prohibition Act, which President Barack Obama signed into law in December 2010. The replacement law applies only to production and distribution, and it defines "animal crush video" more narrowly to mean "any photograph, motion-picture film, video or digital recording, or electronic image" that "depicts actual conduct in which 1 or more living non-human mammals, birds, reptiles, or amphibians is intentionally crushed, burned, drowned, suffocated, impaled, or otherwise subjected to serious bodily injury," provided the visual depiction is "obscene." Since obscene material, defined by a highly subjective three-part test, was already illegal, that law did not accomplish much, aside from expressing the federal government's disgust at this particular genre.

Worse, in the view of critics who thought the Animal Crush Video Prohibition Act did not go far enough, the law banned recordings of animal torture but did not address the underlying acts. The PACT Act is supposed to remedy that alleged shortcoming. The logic of its supporters is unassailable, as long as you do not pause to wonder whether it is really necessary to redundantly criminalize conduct that can already be prosecuted under state law or where Congress gets the authority to do so.