“To regulate Commerce… in animal cruelty?”

The President recently signed a bill into law which makes animal cruelty “in interstate commerce” a federal felony.

Kenneth Owen has an interesting analysis of this new law under the Commerce Clause here. The New Deal-era Supreme Court greatly expanded Congressional power under the Commerce Clause in the 1930s-40s. The Rehnquist Court narrowed this power beginning with U.S. v. Lopez in 1995, which struck down the Gun Free School Zones Act. Following the Lopez decision, the Act was amended to include the language “in interstate commerce.” The Court has not revisited the constitutionality of the amended Act. Owen’s post focuses attention on the “in interstate commerce” language, and whether or not such language is sufficient to warrant regulation under the Commerce Clause. But I would argue that, regardless of the jurisdictional “hook” language, the recent law is valid under the Court’s holding in Gonzales v. Raich (2005).

In Raich, the Court held that Congress had the power to regulate intrastate marijuana growth for personal use. Justice Stevens delivered the majority opinion, and Justice Scalia filed a concurrence. I think that the majority and concurrence are consistent with each other, but Justice Scalia’s articulation is more succinct than Justice Stevens’. As such, I will adopt Justice Scalia’s analysis and apply it to the animal cruelty law.

Raich involved California’s Compassionate Use Act, which legalized medical marijuana use in the state. But that law conflicted with the Controlled Substances Act (CSA), a federal statutory scheme.

Congress has broad power to regulate under the Commerce Clause. Pursuant to this power, it passed the CSA. Under Justice Scalia’s rationale, the Necessary and Proper clause grants Congress the power to regulate intrastate activity if it is necessary to achieve the goal of the broader scheme, the CSA.

The recent prohibition on animal cruelty is justifiable under Raich. Congress already legislates and regulates the interstate transportation and sale of animals. Such laws are within Congress’s regulatory power under the Commerce Clause. The prohibition on animal cruelty is necessary and proper to the broader regulation of animals moving in interstate commerce. Similar to the personal marijuana use in Raich, it is certainly rational for Congress to believe that animal abuse will have a substantial effect on interstate commerce.

For conservative legal scholars, the Rehnquist Court’s Commerce Clause jurisprudence left much to be desired. When the Court decided Lopez, many thought that the decision marked the beginning of a massive reduction in federal power. There is a consensus that this prediction never came to total fruition. Ultimately, I agree with Owen that any reduction in congressional power is unlikely to come via the recent animal cruelty prohibition.