Making a federal case out of cat care

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Clark Neily
Senior Attorney, Institute for Justice
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      Clark Neily

      Clark Neily joined the Institute for Justice as a senior attorney in 2000. He litigates economic liberty, property rights, school choice, First Amendment and other constitutional cases in both federal and state courts.

      He served as counsel in a successful challenge to Nevada’s limousine licensing practices, which effectively prevented small business-persons from operating their own limousine services in the Las Vegas area. He was the lead attorney in the Institute’s successful defense of the Mackinac Center for Public Policy against a lawsuit by the Michigan Education Association challenging the Center’s right to quote the MEA’s president in fundraising literature, and he is currently leading IJ’s opposition to a nationwide effort to cartelize the interior design industry through unnecessary and unreasonable occupational licensing.

      Clark is also the leader of the Institute’s school choice team. Besides representing parents and children in defense of Florida’s Opportunity Scholarship Program and school choice programs in Arizona, Milwaukee, and elsewhere, he has made numerous public appearances and participated in many debates in support of school choice.

      In his private capacity, Clark served as co-counsel for the plaintiffs in District of Columbia v. Heller, the historic case in which the Supreme Court announced for the first time that the Second Amendment protects an individual right to keep guns at home for self-defense.

      Before joining the Institute for Justice, Clark spent four years as a litigator at the Dallas-based firm Thompson & Knight, where he received first-chair trial experience and worked on a wide variety of matters including professional malpractice, First Amendment and media-related matters, complex commercial cases and intellectual property litigation.

      Clark received his undergraduate and law degrees from the University of Texas, where he was Chief Articles Editor of the Texas Law Review. After law school, he clerked for Judge Royce Lamberth on the U.S. District Court for the District of Columbia.

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.”