The Constitutionality of Eating Horses

Not precisely, but it makes a flashier headline than something legal, aka boring, about injunctions pending appeal.

Cavel International v. Madigan is one of the best Seventh Circuit opinions to come out this summer. Cavel is just some ordinary joe schmo business producing horsemeat for human consumption. Most Americans don't like horsemeat, though, so all of Cavel's horse-ventory is shipped to Europe, where apparently the people are more religiously confident that if it were actually morally wrong to eat horses, God almighty wouldn't have chosen to construct them out of meat, but I digress.

Illinois sniffed out Cavel, though, and passed the "Illinois Horse Meat Act." Surprise surprise, no more slaughtering horses in Illinois either for consumption there or for exportation. Looks like Cavel's race has been run.

But no, they challenge valiently in the Fifth Circuit (the procedure is a little janky, I promise, I'm rushing to the white meat), where they are told that their quest for an unconstitutional disposition is molar-deep in the horse's mouth. They appeal, of course, claiming it was their foot, not their case, in the horse's mouth, and the Seventh Circuit opinion takes up the injunction against enforcement of the statute pending Cavel's appeal of the negative judgment. Whew.

Posner, writing for the majority, is apparently a horse meat aficionado:

The only ground that Illinois advances for the horsemeat amendment is “public morality.” The state has a recognized interest in the humane treatment of animals within its borders, and we can assume that this interest embraces the life of the animals and not just a concern that they not be killed gratuitously or in a painful manner. But as we noted earlier, the Illinois statute does not forbid the killing of horses, but only the killing of them for human consumption of their meat. If Cavel could (as apparently it cannot) develop a market for its horsemeat as pet food, there would be no violation of the statute. So it is possible that the burden that the statute places on the foreign commerce of the United States is not offset by a legitimate state interest, in which event the statute is unconstitutional.

If Dicky P has to go to the pet food aisle to get his horse meat marinated in whatever the disgusting shit is they put in pet food cans, hey, he's a loyal man. Also, the implicit "my dog can eat it but I can't?" is a nice strike against narrow tailoredness, especially since most dogs eat poo.

Judge Easterbrook, really a pork guy, wasn't amused in his dissent. He thinks Cavel should've been required to make a stronger showing that they could win on the merits since the Fifth Circuit has already denied their claim:

So I ask (as my colleagues do not) whether plaintiff has made out a “strong showing” that this court is likely to reverse on the merits. It has not done so... That no one in Illinois wants to eat horse flesh means that all of Cavel’s product is exported, but this does not convert a law regulating horse slaughter (an intrastate activity) into one that discriminates against commerce.

The Nor'Easterbrook v. Richard "Not a" Pos(n)er in a Seventh Circuit clash of the titans sure to create a sixth great lake. The issue of Illinois' horse consumption is clearly the sticking point.

However, in a little nod to his economically-minded colleague, Gregg substitutes some game theory lingo in for common sense, a move Mr. Monahan will undoubtedly appreciate:

Almost all laws cause injury; very few statutes are Pareto-superior (meaning that no one loses in the process, and at least some people gain).

Yes big E, most laws stop someone from doing something they'd otherwise like to.