Jun
17
One Man’s Meat Is Another Man’s Forbidden Export
Posted by Clif Burns at 8:33 pm on June 17, 2008
Category: General
It’s not often that we get to talk about horse meat at Export Law Blog, but that’s exactly what we’ll be talking about today. Yesterday, the Supreme Court denied certiorari in Cavel International v. Madigan, leaving in place a decision of the Seventh Circuit Court of Appeals upholding the constitutionality of an Illinois statue which, among other things, banned the export of horse meat for human consumption.
Now you should see why we’re serving up a platter of filet de cheval, sauce au poivre vert. Normally a state law banning a foreign export of any product (horse meat included) would raise serious questions under the U.S. Constitution’s Commerce Clause.
So why did the Supreme Court let the decision upholding the Illinois statute stand? Because Judge Posner, who wrote the opinion for the Seventh Circuit, deftly avoided the constitutionality of the anti-export provisions under the Illinois law.
The Illinois law banned the slaughter of horses for human consumption and banned the export of horse meat for human consumption. In the case before the Seventh Circuit, the plaintiff was a horse slaughterhouse and not an exporter. (Foreign exports were handled, apparently, solely by the middlemen.) So the plaintiff only had standing to challenge the anti-slaughter provision, not the anti-export provision, and the Seventh Circuit, therefore, had no occasion to decide whether the anti-export provision of the Illinois statute was unconstitutional, although there’s plenty in Judge Posner’s decision to suggest that the court had problems with the anti-export provision.
Although I don’t agree with everything in the the erudite Judge Posner’s opinion, it’s a fascinating and entertaining read, vividly written and argued, and it’s probably the only opinion of a federal appeals court (or any other court, for that matter) with a picture of a lion in a Texas zoo eating a “birthday cake” made of horse meat and decorated with whipped cream icing and a carrot candle.
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Copyright © 2008 Clif Burns. All Rights Reserved.
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8 Comments:
Not to nag but the US has a visceral soft spot as to equines. The EAR requires licenses for export of horses by sea to all destinations (ECCN 0A980 & Sec 754.5). If for the purpose of slaughter the license will be denied. The exporter is required to certify the intention for a long and presumably happy life.
Apparently, horses are now being exported by land to Mexico where the slaughterhouses have relocated.
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Since they are not being transported by sea, ECCN 0A980 doesn’t apply.
Michael,
Actually 0A980 was implemented as a humanitarian control. The practice of shipping horses by ocean resulted in a large number dying in transit, hence the restrictions.
As usual, Judge Posner takes his own suppositions as fact, and ignores the legislative facts that most folks, including myself, have relied upon in supporting similar legislation in Congress. Unlike what Posner presumes, most horses presented for slaughter are not aged horses whose owners no longer “have a use” for them. Real horsemen gently euthanize their friends when continued life is too painful and then bury or cremate them. (In Tennessee, cremation by the Dept. of Ag. is free if the horseowner asks requests a necropsy). Almost all horses presented for slaughter are bought by “meatmen” at auctions, and a high proportion of the horses sold in auctions are stolen. The other sources of horses sold at auction come from racing stables or farms that use horses for medical purposes (most notably, mares whose urine is used to make harmone replacement drugs), industries known for their cruelty and inhumanity. Horse thieving has remained a serious problem precisely because of horse slaughterers. Many if not most horse owners have their horses microchipped because the slaughter-house demand for horses provides a market for stolen property that by definition destroys the object stolen and thereby renders the theft untraceable in short order.
For all his wordiness, Posner is no scholar, he is just a presumptious peasant who is terribly impressed with himself.
Calabrese argued the law was passed to discriminate against a foreign country. The law as written, treats imports and exports the same and is therefore, not discriminatory and valid. This was the same ruling in the 5th district court as well as the 7th circuit court of appeals. Obviously the Supreme Court agreed. I guess everyone is wrong but Cavel. It’s quite simple. If Belgium doesn’t like our laws, don’t do business here. We passed the law because we don’t want our horses slaughtered. If these foreign countries want to eat horse meat, they can slaughter their own horses.
Vicki, the Supreme Court’s denial of cert. isn’t necessarily an indication that it agreed with the 7th circuit’s opinion, but could also reflect the fact that there was no split in the circuits that needed to be resolved.
Cliff, true. I’m not a lawyer but just recall the argument because I attended the trail @ the 5th distric court. I reviewed the notes I took and the arguments by both sides and the consensus among lawyer friends was what I posted. There is also the precendent that I didn’t mention from the two kill houses in Texas. They also appealed to the Supreme Court last year with the same argument and were refused a hearing. I also understand that it is a rarity that the Supreme Court will go against a unanimous decision by a high state court. Thanks!
Dear Professor Burns,
Greetings from Tokyo! However legally irrelevant it may be, raw horse meat is served as a common side dish to complement beer at traditional Japanese pubs (izakaya).
