Hemingway’s Cats, Flunkies at the USDA, and the Commerce Clause

[This is a guest post by First Amendment attorney Marc Randazza. It also appears on his own blog, the Legal Satyricon.]

Hemingway said, “There is nothing noble in being superior to your fellow man; true nobility is being superior to your former self.” That may be true, but you still have to point at the asshats and laugh, if not throw things at them.

If you’ve ever been to Key West, you’ve probably gotten drunk on sticky frozen cocktails, eaten conch fritters or key lime pie, tried to see this “green flash” that supposedly happens at sunset, but never does, and you’ve said “awwww” at one of the “Hemingway cats” that roam the island. (Either that, or “get away from me, you mangy mutant cat!”)

The cats are (word of the day, kids!) polydactl cats, that is they have six (or more) toes. Legend has it that sea captains considered polydactl cats to be good luck, and a particular captain named Stanley Dexter happened to be drinking buddies with Ernest Hemingway. Dexter gave Hemingway a polydactl cat named Snowball; Hemingway didn’t bother to have Snowball spayed, and the rest is history.

Now, Key West is home to a small colony of polydactls, which are informally called “Hemingway Cats,” and the colony pretty much comes and goes as it pleases, but its home base is (naturally) the Hemingway House at 907 Whitehead Street, which is now a museum.

All was well with the cats. They lived there, charmed visitors, roamed free, and never bothered anybody. Until 2003, when apparently a visitor “expressed concern” about the cats’ welfare — all the way to the United States Department of Agriculture. (source) One thing led to another, and the Hemingway Cats (figuratively) went to federal court.

In 2003, Dr. Moore of the USDA recommended that the museum apply for a USDA license as an “animal exhibitor.” He returned to Key West, on your tax dollars, and “raised concern” that the cats roamed free. Their suggestions?

…[C]ontain 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. 907 Whitehead St., Inc. v. Gipson, 2012 U.S. App. LEXIS 25106 (11th Cir. Fla. Dec. 7, 2012)

Moore returned in 2004, with Dr. Gja, also of the USDA. When they couldn’t figure out a reasonable way to contain the cats inside the museum, the USDA denied the license and informed the museum that it would face fines of $200 per day, per cat. The USDA threatened to confiscate the cats, and finally someone at the USDA grew half a brain. “Dr. Chester A. Gipson, a USDA deputy administrator for animal care, proposed a temporary resolution: granting the Museum an exhibitor’s license from the USDA without prejudicing the Museum’s right to contest the USDA’s legal authority to regulate the Museum.” Id.

And that is what they did — unsuccessfully.

“The AWA somewhat obscurely defines 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).” Id. The Museum did not dispute that it exhibits the cats for compensation, but argued that its exhibition was not a “distribution . . . which affects [interstate] commerce.” The 11th Circuit Court of Appeals disagreed, holding that the Museum, indeed, “distributed” the cats in a manner that affected interstate commerce.

How?

They gave cats away, and people could view the cats on the Museum’s website. Silly, but you can squint your eyes and see the logic.

Then it goes right over the cliff. The 11th Circuit held that even if those conditions were not met, the Museum still “distributed” the cats. The court wrote: “The Museum “distributes” the cats in a manner affecting commerce every time it exhibits them to the public for compensation.” Id. Yep. You read that right. Little did you know that when you walked into the Hemingway House and squatted down to look at a six toed cat, you were involved in an interstate commercial “cat distribution.”

But, of course, the federal government’s Commerce Clause power couldn’t possibly extend to whether or not some six toed cats stay inside at night, on an Island at the tip of Florida, right?

The Commerce Clause, U.S. Const. art. I, § 8, cl. 3, authorizes Congress to regulate “the channels of interstate commerce, persons or things in interstate commerce, and those activities that substantially affect interstate commerce.” The 11th Circuit concluded that “the Museum’s exhibition of the cats substantially affects interstate commerce.”

“The Museum argue[d] 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.” In making that argument, the Museum cited United States v. Lopez, 514 U.S. 549 (1995)(gun-free school zone act unconstitutional). Nevertheless, the court found that the cats substantially affect interstate commerce.

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, 162 L. Ed. 2d 1 (2005) (internal quotation marks omitted); see also Wickard v. Filburn, 317 U.S. 111, 125, 63 S. Ct. 82, 89, 87 L. Ed. 122 (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, 137 L. Ed. 2d 852 (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.

This shouldn’t come as too much of a surprise. Remember, in Gonzalez v. Raich, the Supreme Court found that if you grow marijuana in your living room, and pick it in your living room, and smoke it in your living room, with the windows closed, and never receive a guest, then that has a “substantial effect on interstate commerce.” So, if a plant in your living room affects interstate commerce, why not cats jumping over a fence?

So what do we learn here? Most importantly, we are reminded that the Commerce Clause is a congressional blank check that lets federal authorities do whatever the hell they want. But we’re also reminded that some people’s lives must truly be so without meaning, so truly worthless, that I would rather burn in a lake of fire for all eternity than be reincarnated as someone like them.

Hemingway once said “Every man’s life ends the same way. It is only the details of how he lived and how he died that distinguish one man from another.”

All of this could have been avoided if someone at the USDA had pulled his head from his ass, wiped the shit from his eyes, and looked at the world with a little bit of clarity. For any of this to happen in the first place, someone at the USDA had to get this issue on their desk, and had to say “I, sir, am important,” and decided to exert their Cartman-esque authoritah in the dumbest way possible. They had to leave Option B on the table, which would have been “I’m using my discretion to determine that this is a unique situation, and probably not the best use of the USDA’s money and time. In short, I am a thinking human being, not governed by a script.”

The details of how these flunkies at the USDA did their jobs speak volumes about them. Their lives will end the same way all of ours do, but their worthlessness as human beings is conclusively proven — in a federal case, no less.

— Marc Randazza