Commercially Exhibiting Cats Affects Interstate Commerce

Here’s a story out of the ABA Journal that will get some heads scratching.  It’s about a recent ruling from the Eleventh Circuit Court of Appeals over whether the descendants of Ernest Hemingway’s six-toed cat Snowball are subject to federal regulation by operation of the Commerce Clause.  There are some 40 to 60 cats roaming the grounds of the Hemingway Museum in Key West.  They don’t leave the grounds and they are not for sale, though occasionally one may be given away.  The Museum cares for them and charges admission for entrance.  It also uses the cats in promotional materials and sells cat related items in its gift shop. It’s safe to say that the cats are one of the attractions at the Museum.

The Department of Agriculture contends that the Museum, as an exhibitor of animals, is subject to regulation under the Animal Welfare Act (AWA).  The USDA made some pretty heavy-handed demands to the Museum about the cats.  From the opinion:

The Museum protests the USDA officials’ alleged demands that the Museum: obtain an exhibitor’s license; contain and cage the cats in individual shelters at night, or alternatively, construct a higher fence or an electric wire atop the existing brick wall, or alternatively, hire a night watchman to monitor the cats; tag each cat for identification purposes; construct additional elevated resting surfaces for the cats within their existing enclosures; and pay fines for the Museum’s non-compliance with the AWA.  At one point, the USDA allegedly refused to issue an exhibitor’s license to the Museum and threatened to confiscate the cats from the property.

The language of the AWA at issue is the definition of an exhibitor:

as “any person (public or private) exhibiting any animals, which were purchased in commerce or the intended distribution of which affects commerce, or will affect commerce, to the public for compensation, as determined by the Secretary.”  7 U.S.C. § 2132(h).

The Secretary of Agriculture defined exhibition and distribution broadly in a way that included the Museum’s promotion of the cats.  The trial court justified the regulation because cats were given away from time to time and the Museum’s use of a web cam to monitor the cats.  The web cam seems to be gone.  The static promotional materials are still there.

So how did the Court resolve this?  They said the Secretary’s interpretation of the regulations is entitled is entitled to deference and thus the Museum is subject to the AWA:

We conclude that the Museum’s exhibition of the cats substantially affects interstate commerce.  The Museum argues that its activities are of a purely local nature because the Hemingway cats spend their entire lives at the Museum—the cats are never purchased, never sold, and never travel beyond 907 Whitehead Street.  See Reply Brief at 3 (citing United States v. Lopez, 514 U.S. 549, 567–68, 115 S. Ct. 1624, 1634 (1995)).  But the local character of an activity does not necessarily exempt it from federal regulation.  “[W]hen a general regulatory statute bears a substantial relation to commerce, the de minimis character of individual instances arising under that statute is of no consequence.”  Gonzales v. Raich, 545 U.S. 1, 17, 125 S. Ct. 2195, 2206 (2005) (internal quotation marks omitted); see also Wickard v. Filburn, 317 U.S. 111, 125, 63 S. Ct. 82, 89 (1942) (reasoning that even if “activity be local[,] and though it may not be regarded as commerce, it may still, whatever its nature, be reached by Congress if it exerts a substantial economic effect on interstate commerce”).  And it is well-settled that, when local businesses solicit out-of-state tourists, they engage in activity affecting interstate commerce.  See Camps Newfound/Owatonna, Inc. v. Town of Harrison, Me., 520 U.S. 564, 573, 117 S. Ct. 1590, 1596–97 (1997).  The Museum invites and receives thousands of admission-paying visitors from beyond Florida, many of whom are drawn by the Museum’s reputation for and purposeful marketing of the Hemingway cats.  The exhibition of the Hemingway cats is integral to the Museum’s commercial purpose, and thus, their exhibition affects interstate commerce.  For these reasons, Congress has the power to regulate the Museum and the exhibition of the Hemingway cats via the AWA.

So let me get this straight.  The promotional use of the cats by the Museum qualifies as substantially affecting interstate commerce while the Supreme Court held that the operation of Affordable Care Act does not?  Well, meow.  The full Eleventh Circuit opinion is here.  [MG]