Ernest Hemingway’s house on Key West is now a museum where descendants of his famous six-toed cat, Snowball, roam the grounds. The federal government has tried to put the kibosh on these free-range felines, and the question is whether it has the authority to do so. Casting aside the Framers’ plan for limited government, the 11th U.S. Circuit Court of Appeals recently said yes.
The U.S. Constitution lists Congress’s powers in some detail, and they include things like coining money and punishing pirates. Pet care is not among them. But the U.S. Supreme Court has been asleep at the switch for 75 years, abetting a steady series of usurpations that have transformed the federal government from one of “few and defined” powers to the insatiable behemoth it is today. The Court should seize this opportunity to reverse course and tell the feds that some things are none of their business.
The case began nine years ago when the U.S. Department of Agriculture, acting on a tip, dispatched one of its veterinarians to Key West to determine whether the Hemingway Home & Museum met the department’s exacting standards for outdoor cat accommodation. Determining that the museum was an “exhibitor” of animals under federal law, the department launched a two-year investigation involving six visits to Key West by four different inspectors who appear to have left no stone unturned in their quest to rescue the Hemingway cats from the privations of their bucolic existence. The inspectors’ recommendations included stuffing the cats into cages, constructing elevated “resting surfaces,” and hiring a security guard to watch over them at night.
In the face of withering publicity, the Department of Agriculture finally issued the museum an exhibitor’s license despite its unresolved cat-containment qualms. The museum accepted the license under protest and promptly filed suit challenging the department’s licensing authority.
The ostensible source of that authority is the Animal Welfare Act, passed by Congress in 1966 to protect animals in places like laboratories, circuses and zoos. It requires a federal license for anyone who publicly exhibits animals that “were purchased in commerce or the intended distribution of which will affect commerce.”
“Commerce” is the word Congress sprinkles liberally into statutes when it wants to exercise powers not listed in the Constitution. That’s because courts have held that doing so transforms Congress’s enumerated power to regulate interstate commerce into a constitutional wild card that it may use to control anything that moves — or helps or encourages other things to move — across state lines.
Just one small problem with the Hemingway cats: They are marooned on an island in Florida and have never been bought, sold or distributed. Thus, they fall neither within the language of the Animal Welfare Act — which applies only to animals that are purchased or distributed — nor the Constitution, which authorizes Congress to regulate commerce “among the several States.”