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.