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Commerce Clause Case Analysis

Although the court reaffirms prior holdings that a statute can pass muster under the dormant commerce clause, even if it has no discriminatory effect on interstate commerce, if it lacks any rational justification at all, it is difficult to imagine how a plaintiff could meet this standard after this case.

The state’s purported justification for the statute is minimal, and is, quite likely, a post-factum justification anyway.

When the court granted the injunction against enforcement of the statute pending appeal, it noted, “the statute does not seem to be intended to protect horses. (The object of the statute is totally obscure.) … all that will happen is that horses will be slaughtered elsewhere to meet the demands of the European gourmets.”

Later, the court observed, “Indeed, it is difficult to see what harm would ensure from permanently abrogating the statute if the welfare of horses would not be affected, as it might well not be.”

Still later, the court wrote, “the only ground that Illinois advances for the horsemeat amendment is ‘public morality.’”

Because the court found that Cavel’s commerce clause argument was “not negligible,” it enjoined enforcement pending appeal.

Thus, it appears that the State’s argument that the statute prolongs the lives of horses was not the real justification, but was formulated after the injunction, lest “public morality” prove an insufficient basis to support the statute.

However, the State needn’t have bothered; in the decision on the merits, the court concluded that, even if the statute does nothing to protect horses, the public’s “disgust” and “distaste” for others eating horses is still a sufficient justification.

The court expressly stated that “A follower of John Stuart Mill would disapprove of a law that restricted the activities of other people … on the basis merely of distaste, but American governments are not constrained by Mill’s doctrine.”

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The decision thus goes well beyond prior Seventh Circuit precedent. In National Paint & Coatings Ass’n. v. City of Chicago, 45 F.3d 1124 (7th Cir. 1995), the statute at issue was a city ordinance barring the sale of spray paint, as an anti-graffiti measure.

Because the city employed full-time crews to remove graffiti, and 5 million square feet of public space in Chicago was covered in graffiti, the court concluded that the burden the ordinance imposed on interstate commerce was not clearly excessive in relation to the public benefit.

The decision in the case at bar goes much further, concluding that, even in the absence of any public benefit from banning a commercial activity, public distaste for a practice is legitimate grounds to ban it.

In light of the opinion’s discussion of public distaste, the City of Chicago’s infamous ban on foie gras would clearly survive a constitutional challenge, as would any similar ordinance if enacted in Wisconsin.

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David Ziemer can be reached by email.

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