November 04, 2011

National Meat Association v. Harris: More Preemption in the Supreme Court

On November 9th the Supreme Court will hear oral argument in National Meat Association v. Harris, wading once again into the mire of federal preemption. The National Meat case involves a California statute that prohibits the slaughter of non-ambulatory animals for human consumption and requires that non-ambulatory animals be immediately and humanely euthanized. A federal law, the Federal Meat Inspection Act (FMIA), thoroughly regulates, although one could question how strictly, the process of slaughtering animals for human consumption. It also contains an express preemption provision that prohibits states from making any “requirements within the scope of this chapter with respect to premises, facilities and operations of any establishment [subject to this chapter], which are in addition to, or different than those made under this chapter.” 21 U.S.C. § 678. But then it also provides that: “this chapter shall not preclude any State ... from making requirement[s] or taking other action, consistent with this chapter, with respect to any other matters regulated under this Act.” The National Meat Association filed suit for declaratory and injunctive relief against the California law as it applies to swine and the processing of pork, claiming that the California law is preempted by the federal law. The Ninth Circuit, in an opinion reflecting the inimitable style of Judge Alex Kozinski, held that the California law was not preempted. The court said that the California law merely identifies what animals may be slaughtered for human consumption, not how they are to be slaughtered. And the law’s provision requiring the euthanizing of non-ambulatory animals, the circuit court said, does not relate to the slaughtering of animals for human consumption. The Supreme Court, against the advice of the Solicitor General, granted certiorari.

Before the Court, the petitioner, the National Meat Association, rests its argument on the express preemption provision, disclaiming any reliance on obstacle preemption (the judicially created doctrine that a state law is preempted if it stands as an obstacle to the full attainment of  the goals of a federal law). The United States as amicus in support of the petitioners likewise limits its argument to express preemption, although in a footnote the government asserts that there would in any case be obstacle preemption. So, the initial issue is whether the preemption provision should be read narrowly, as respondents argue and the Ninth Circuit held, relying on Wyeth v. Levine, or broadly, as the petitioners argue, relying on an earlier FMIA case, Jones v. Rath Packing Co. Of course, neither side’s argument on this is correct. In Wyeth, the Court reaffirmed the approach that there is a presumption against federal preemption, but in that case there was no preemption provision to be construed. In Rath Packing, the Court did not give the FMIA’s preemption provision a broad reading; instead it read it according to its terms, rejecting what it called a “strained” interpretation or a “restrictive reading.” As is (or should be) always the case when there is an express preemption provision, the provision should be applied according to its terms. Here, however, the provision, combined with its savings clause, is very ambiguous. The Court utilizes different techniques to resolve ambiguities in statutes. Here there are two techniques that might be used, but they lead to different outcomes. One would be to utilize a canon of statutory construction – here, the canon that Congress is presumed to have left regulation to the states unless there is a clear and manifest intent expressed to the contrary. Here, utilizing that technique would result in the California law not being preempted. The other technique used by the Court to resolve ambiguities is to defer to the interpretation of the agency responsible for the administration of the statute – here the Department of Agriculture, on whose behalf the Solicitor General is arguing that the provision preempts California’s law. Accordingly, using this technique would result in the California law being preempted. Because the justices have divergent views on when these different approaches should be used, one might expect the Court in this case to split along these lines. 

Certainly, the preemption provision can be read to preclude any additional state regulation of what happens inside the slaughterhouse, but it need not be so read. The Ninth Circuit relied upon two other circuit decisions that held that state laws prohibiting the slaughter of horses for human consumption were not preempted by the FMIA. The analysis was that the FMIA did not regulate what animals might be subject to human consumption; it only regulated how animals that were to be consumed by humans would be slaughtered. California argues that it is simply prohibiting non-ambulatory animals from being slaughtered for human consumption, just as it also prohibits horses and household pets from being slaughtered for human consumption. The petitioners and the government respond that there is a difference between the species of animal to be slaughtered and the identification of an animal to be slaughtered based upon its relative health.  Undoubtedly there is a difference, but what is less clear is the significance of this difference. 

The specific facts of the case may help to sort this out. First, the federal law is clearly intended to ensure the safety of the meat products consumers purchase. Second, the California law is designed to reflect the morals of the community regarding the humane treatment of animals and what is moral for people to eat. Third, the California law’s requirements do not conflict with and are consistent with the federal requirements. That is, while California’s law may prohibit the slaughtering for human consumption of swine that the federal government would allow, California’s reason is not a second-guessing of the federal cost/benefit assessment in terms or reducing the risk of unhealthy meat. It is, like the ban on slaughtering horses and household pets for human consumption, based upon a moral consideration that simply is not addressed by the federal law. Fourth, the members of the National Meat Association are concerned only because eliminating non-ambulatory swine from the potential meat market will decrease their members’ revenue by decreasing the amount of pork they can sell, because under the federal law they can sell the pork from non-ambulatory swine if testing reveals that meat from the swine would not create any health or safety risk.

Federal law preempts the field with respect to the operation of slaughterhouses with respect to the safety of the meat to be sold for human consumption, but federal law does not attempt to decide what meat is morally appropriate for human consumption. One might well disagree with the moral view reflected in the California law, just as one might disagree with the moral views reflected in the laws enacted under the police powers of any state. But in our federal system those moral choices are to be respected so long as they do not violate a person’s individual rights or conflict with a federal law. Here the California law and the FMIA are ships passing in the night; both should be allowed to pass.

Preemption cases in the Supreme Court sometimes result in strange bedfellows. For example, “conservative” justices normally are more responsive to arguments in favor of state versus federal interests, but those same justices usually are also more responsive to arguments in favor of less regulation compared to more regulation, and when states impose additional requirements to those imposed by federal law, as is the case in National Meat Association, it is not clear which jurisprudential tug wins. “Liberal” justices have the same problem reversed; they tend to favor national solutions over state solutions, but they also tend to favor stricter regulation of business. They too will be conflicted in the National Meat Association case. Here, I fear that the added weight likely to be given to the federal agency’s “expert” opinion on the effect of the state law may turn the tide against the respondents. 

William Funk, together with two other law professors, Thomas McGarity of the University of Texas and Sandra Zellmer of the University of Nebraska, has filed an amicus brief supporting respondents’ arguments against preemption.

Bill Funk, CPR Member Scholar; Professor of Law, Lewis & Clark Law School -- Portland, Oregon. Bio.

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