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.

But judges can be quite creative in rationalizing government power, and this case is no exception. Noting that the museum features the Hemingway cats on its website and in promotional videos, the 11th Circuit held that the museum “‘distributes’ the cats in a manner affecting commerce every time it exhibits them to the public for compensation.” And because people come from all over the country to visit the museum — which mentions the cats during tours and sells cat-related merchandise in its gift shop — the exhibition of the Hemingway cats “substantially affects interstate commerce” and throws open the door to federal micromanagement.

The Supreme Court should not let that decision stand. Perhaps it won’t. This summer, Chief Justice Roberts began his opinion in the Obamacare case by emphasizing that the federal government “possesses only limited powers; the States and the people retain the remainder.” Unfortunately, because he joined four other justices to uphold the healthcare law as a valid exercise of Congress’s taxing power, it remains to be seen whether those words have any real substance.

There’s a huge difference between theoretically limited government and meaningfully limited government. Let’s hope the Supreme Court figures that out before it’s too late. Getting the feds out of the cat-wrangling business at the Hemingway house in Key West, Florida seems like a suitably surreal place to start.

Clark Neily is a senior attorney with the Institute for Justice, which represents entrepreneurs nationwide.