Some convicted defendants in South Carolina are crying foul at the application of the federal Animal Welfare Act to criminally punish the promotion of cockfighting. The statute is said to be based in the power of Congress, found in article I, section 8 of the Constitution, to “regulate commerce . . . among the several States . . . .” Federal prosecutors successfully applied the statute at the trial level, and now the case is before a three-judge panel of the U.S. Court of Appeals for the 4th Circuit.
The defendants (now appellants) argue that their conduct is not sufficiently related to interstate commerce, and is too local in character, to justify Congress’ exercise of its interstate commerce authority. Their contention in this regard is not about whether the promotion of cockfighting may be banned, but rather whether such conduct may be banned by Congress, which can only enact statutes that further its constitutionally enumerated powers. (Such conduct is largely prohibited, albeit with a lesser criminal sanction, by South Carolina law.) Their contention, moreover, appears not to be that the Animal Welfare Act as a whole is unconstitutional, but only that its application to their particular conduct exceeds Congress’s interstate commerce power.
The appellants’ arguments have a familiar ring to them. To be sure, such reasoning held meaningful sway with the Supreme Court until 1937, when a majority of the Court, after a game of chicken with FDR, relented and began recognizing greater congressional power to legislate under the Interstate Commerce Clause. Among other things, Congress could regulate activities that, in the national aggregate, substantially affected interstate commerce, regardless of whether a given activity was interstate or intrastate and regardless of Congress’ actual motives or purposes. Under this approach, not only were various New Deal statutes upheld, but so were subsequent statutes in the 1960s and 1970s concerning such matters as civil rights and environmental protection.
Over the past two decades, however, the Court has again shown a willingness to henpeck Congress regarding its commerce-based legislation. The turning point occurred in a 1995 case, United States v. Lopez, in which the Court by a 5-4 vote struck down a federal statute criminalizing gun possession within 1000 feet of a school. Five years later, in United States v. Morrison, the Court again by a 5-4 vote struck down a federal statute creating a cause of action, and authorizing civil liability, for gender-motivated violence.
Both of these statutes, said the Court, governed conduct that was not commercial in nature, and neither statute was part of a larger federal scheme of commercial regulation. Nor did either law require proof that a defendant’s conduct actually bore a relationship to interstate commerce. The Court also noted that the statutes touched on one or more areas, such as criminal law, traditionally within the legal domain of the states. Given these factors, the Court in both cases concluded that Congress had exceeded its interstate commerce authority.
In light of these recent decisions, the defendants’ arguments can hardly be characterized as frivolous, much less bird-brained. Like all litigants, however, they should be wary of counting their legal chickens before they’ve hatched. As it turns out, most statutes challenged since Lopez have not suffered the same fate as those at issue in Lopez and Morrison. Lower courts have generally been reluctant to apply the Lopez factors too strictly, and the Supreme Court itself—with the exception of Morrison—has only made suggestions of potential unconstitutionality with regard to other statutes, otherwise upholding every law it has reviewed under the Interstate Commerce Clause. In the 2005 case of Gonzales v. Raich, for example, the Court (by a different majority) upheld an application of the federal Controlled Substances Act to the intrastate cultivation and possession of marijuana used for medical purposes pursuant to a state law. Congress, meanwhile, seems to have taken at least somewhat seriously the admonitions of Lopez and Morrison and appears less likely today to enact statutes possessing the flaws of the statutes struck down in those cases.
The relevant provision of the Animal Welfare Act, 7 U.S.C. § 2156, covers a range of conduct related to “an animal fighting venture.” (This provision, among others, resulted in NFL quarterback Michael Vick’s 2007 federal conviction for financing and participating in dogfighting operations, which partly took place in South Carolina.) Taken together, § 2156’s subsections make it criminal “to knowingly sponsor or exhibit an animal in an animal fighting venture,” § 2156(a)(1); “to knowingly sell, buy, possess, train, transport, deliver, or receive any animal for purposes of having the animal participate in an animal fighting venture,” § 2156(b); “to knowingly use the mail service of the United States Postal Service or any instrumentality of interstate commerce for commercial speech for purposes of advertising an animal, or an instrument described in subsection (e), for use in an animal fighting venture, promoting or in any other manner furthering an animal fighting venture,” § 2156(c); or “to knowingly sell, buy, transport, or deliver in interstate or foreign commerce a knife, a gaff, or any other sharp instrument attached, or designed or intended to be attached, to the leg of a bird for use in an animal fighting venture,” § 2156(e). A violation of any of these subsections can lead to a fine, to imprisonment up to five years, or to both (see § 2156(j) and 18 U.S.C. § 49). The term “animal fighting venture,” though expressly excluding hunting, is defined as “any event, in or affecting interstate or foreign commerce, that involves a fight conducted or to be conducted between at least 2 animals for purposes of sport, wagering, or entertainment,” § 2156(g)(1).
Applying the Lopez and Morrison factors to § 2156, it is apparent that some of its prohibitions are clearly constitutional. Those that target inherently commercial activities such as buying and selling, and especially those that also expressly link the activity to interstate commerce or to a channel or instrumentality of interstate commerce, seem well within the judicially defined scope of Congress commerce power. Conversely, those that target activities that are not inherently commercial—for example, exhibiting or possessing—potentially stand on a weaker footing, but they do explicitly require proof that the animal or object be knowingly destined for use in an animal fighting venture that (by statutory definition) is “in or affecting interstate or foreign commerce . . . .” To be sure, the federal prosecution introduced evidence of out-of-staters that traveled to the event; of out-of-state items—including feed and a host of resources used for the fighting—that were shipped to individuals at, or seized from the scene of, the event giving rise to the convictions; and of the deposit of event proceeds into a bank account, from which funds were drawn by checks that were then processed out-of-state.
In past Supreme Court cases, most notably Katzenbach v. McClung from 1964, it has been held that Congress’ commerce power can reach a business that receives from out-of-state a portion of the goods that it then sells to customers, even if the customers are generally from in-state. Moreover, the size or amount of the actual portion of goods (or its monetary value) is generally not relevant insofar as Congress may aggregate all like activities when tallying or gauging the overall effect on interstate commerce. Nor does it matter whether or not one can plausibly characterize an activity as local rather than national or interstate. As the Court remarked in the 1942 decision of Wickard v. Filburn, “even if . . . [the] activity be local and though it may not be regarded as commerce, it may still, whatever its nature, be reached by Congress if it exerts a substantial economic effect on interstate commerce . . . .”
These are older, pre-Lopez precedents, it is true, but neither Lopez nor Morrison expressly overruled any prior decisions, and the Raich decision approvingly invoked both McClung and Wickard, drawing particular support from the latter. Indeed, in response to the challengers’ heavy reliance on the Court’s more recent cases of Lopez and Morrison, the Raich majority stated that “[i]n their myopic focus, they overlook the larger context of modern-era Commerce Clause jurisprudence preserved by those cases” and that “even in the narrow prism of [their] creation, they read those cases far too broadly.”
This could very well be the same response that the Court of Appeals, without much brooding over precedent, will give to most if not all of the appellants in their challenges to the Animal Welfare Act. It may be that the appeals court will find that one or even a few of them have reasonable arguments against the application of the statute, though probably not arguments of sufficient strength to prevail. Insofar as they all contributed to or operated a commercial operation—the interstate effects of which, if aggregated with similar operations nationwide, can plausibly be deemed substantial—the likelihood of an affirmance with regard to their convictions under the Animal Welfare Act would seem to be high. Should such an affirmance occur, one might venture to say that, in the end, the chickens will have indeed come home to roost.