Big Business in America loves to use the somewhat obscure legal doctrine of “federal preemption” to thwart state and local efforts to do all sorts of good things, such as protecting public health and safety, ensuring consumers have a remedy when they are harmed by corporate misconduct, and preserving the environment.  “Preemption” is based on the Constitution’s declaration that federal law is supreme over conflicting state law.  This provision makes sense—except that the doctrine of preemption has been twisted by corporate interests in an attempt to insulate their conduct from people-friendly state laws.  Now Big Business is asking the Supreme Court to use “preemption” to free the meat industry from a California law that seeks to ban cruel practices that cause unnecessary suffering to “downed” animals.

California’s anti-cruelty law was enacted in 2008, just months after a national scandal associated with the treatment of livestock that were too sick or weak to walk to slaughter.  A Humane Society of the United States undercover investigation produced horrific images of workers kicking cows, ramming them with the blades of a forklift, jabbing them in the eyes, applying painful electrical shocks and even torturing them with a hose and water in attempts to force sick or injured animals to walk.

The purpose of the law was to raise the bar for the ethical treatment of livestock in California and represented a moral decision by Californians that just because an animal may be destined for slaughter, it should nonetheless be treated in a manner that does not inflict unnecessary pain and misery.  Despite the fact that this is exactly the sort of conscience-of-the-community decision our federalist system leaves to states and localities—and despite the reality that the factory-farmed meat industry relies in large part on people not thinking too much about where their hamburger comes from—the meat lobby objected.  Focusing particularly on how the state law would affect pork producers, the National Meat Association filed suit in federal district court, arguing that California’s law was preempted by the Federal Meat Inspection Act.  Prohibiting the sale of meat from thousands of pigs that are transported each year to slaughterhouses in such weak, crippled, or unhealthy condition that they collapse on the truck or on their way to slaughter, after all, takes money out of the meat industry’s pocket.

The meat industry has argued that the Federal Meat Inspection Act displaces any state law that addresses the treatment of animals in situations relating to slaughter and meat processing.  But the federal inspection statute is explicitly intended to safeguard meat that is to be sold for human consumption—it does not prevent a state from choosing to exclude certain kinds of animals from the slaughtering process altogether.   While the federal government certainly could prescribe a national humane treatment law that would trump any state livestock treatment law, it simply hasn’t done so.  Just as many states have banned for ethical reasons the slaughter and sale of horses or household pets for meat consumption, so, too, should states be able to say that “downed” animals that will likely experience extreme suffering should be excluded from meat processing and humanely euthanized instead.

While Chief Judge Alex Kozinski of the U.S. Court of Appeals for the Ninth Circuit called the meat lobby’s arguments “hogwash,” the industry may get a more favorable reception in the Supreme Court this week, when the high court hears argument in National Meat Association v. Harris.  Conservative Justices on the Roberts Court have been generally inclined to use the doctrine of preemption to insulate business from state and local regulation.  Justice Clarence Thomas has at times been the exception, following the Constitution’s text and history and voting against federal preemption where there wasn’t a direct conflict between federal and state law.   But he has also disappointed petitioners who have sought to use state law to remedy corporate wrongdoing, as he did in last Term’s PLIVA v. Mensing case, siding instead with his usual conservative allies to prevent consumers from bringing state law claims of inadequate labeling against generic drug manufacturers.

Most of the criticism of the pro-corporate leanings of the Roberts Court have focused on Big Business versus the little guy, not Big Business versus This Little Piggie.  But this isn’t just an animal-rights issue—it’s about making sure our courts are not bending the Constitution to suit the desires of corporate America.  It’s time to Occupy the Barnyard.

CAC’s brief filed in National Meat Association v. Harris on behalf of a group of esteemed professors of preemption law can be found here.

Cross-posted at Huffington Post