Pamela Vesiland, Preempting Humanity: Why National Meat Ass'n v. Harris Answered the Wrong Question, 65 Me. L. Rev. 685 (2013).
National Meat Ass’n v. Harris is poised to become a significant legal barrier to industrial animal agriculture reform. Although Congress has historically refrained from setting even minimal protections for animals raised in industrial operations, the Supreme Court’s 2012 opinion laid the foundation for expanding Congress’s Commerce Clause authority to set national limits to state animal welfare standards. National Meat asked whether USDA slaughterhouse and packing plant regulations under the Federal Meat Inspection Act preempted California’s newly-raised standards for handling disabled (or “downed”) livestock. In answering this question, the Court misconstrued federal legislative and regulatory history and improperly conflated the state’s animal cruelty regulations with its food safety regulations and the USDA’s food safety regulations. Taking the resulting opinion to its logical conclusion, Congress and the USDA have unprecedented supremacy to limit state farmed animal welfare and anti-cruelty standards. This unfortunate consequence might have been avoided had National Meat asked a better question: Whether California’s welfare standards for downed livestock violated the “dormant” Commerce Clause. Mounting tensions between meat and dairy corporations and organizations representing animal welfare, food safety, and consumer protection interests will eventually force congressional action. Unless its preemptive authority in the area of farmed animal welfare is correctly defined, Congress will continue to impose artificial limits on state police authority to define what is “humane.”