Making a federal case out of cat care

Clark Neily Senior Attorney, Institute for Justice
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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.”

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.