AUDIO: California downer law may be headed for a downer in Supreme Court

Justices on the U.S. Supreme Court heard oral arguments this week on a controversial California law that requires nonambulatory livestock at slaughterhouses to be immediately euthanized and removed from the food supply and, based on their questions, it appears the justices are leaning toward a ruling in favor of the meat industry and the Obama administration.

The 2008 law, which was set aside by a federal judge pending this further legal action, was prompted by whistleblower video at a slaughterhouse that showed nonambulatory, or “downer” cattle being shocked, kicked and hit with heavy equipment at one California facility. As The Iowa Independent earlier reported, state lawmakers sought to prohibit the sale of meat for human consumption from such animals, and mandated under its penal code that any “downer” livestock be immediately euthanized.

Federal law, however, requires that “downer” livestock be moved away from other animals and inspected. If inspectors find no disease or “adulteration” of the animal, it is allowed to continue through the slaughter process as a part of the food supply.

The National Meat Association, which sued on behalf of the pork industry, has asked SCOTUS to strike down California’s edict on grounds that it over-stepped the federal rule. California’s attorney argued mostly on the grounds of scope and semantics. The latter appeared to be an argument that did not resonate with the Court.

“In other words, you’re saying, ‘Well, just because the federal law says you can, doesn’t mean the state can’t say you can’t,’” noted Chief Justice John Roberts during the testimony of California Asst. Attorney General Susan K. Smith.

When Smith affirmed her argument, Roberts added, “Isn’t the exact flip side of saying … you can’t sell it, is that you can? So when federal law says you can, that preempts the rule from the states that says you can’t.”

Smith was arguing that because California was immediately removing “downer” livestock from the food supply, and the scope of federal law had to do with slaughterhouse operations leading to the food supply, that the state’s requirements remained outside of the scope of what federal authorities had already mapped out as their own territory. In other words, California needed to prove that it’s new law was attempting to “preempt,” or cancel out, existing federal law, which the Constitution holds as the winner in all conflicts.

The meat industry argued that the Federal Meat Inspection Act over-rules any state law that addresses cruelty or humane treatment of livestock slated for slaughter.

The state believes it has the right to explicitly decide what types of livestock can be slaughtered for human consumption, and that its decision in such matters is outside of the federal regulations regarding slaughterhouse operations because it is making its requirement in advance of the federal law. So, if the state decided that no purple hogs or white cows could be slaughtered for human consumption, the state believes the requirement would automatically remove such livestock from jurisdiction by the Federal Meat Inspection Act.

“The federal law doesn’t say you must,” argued Smith. “It does not say that you must sell the meat or you must…”

Justice Antonin Scalia interrupted, saying, “We are not talking about conflict preemption. If it said you must and the state says you can’t, then there would be conflict preemption. But we are talking about express preemption, which says in so many words no additional requirements. And I don’t know how you can get around the fact that this an additional requirement.”

The audio file embedded below provides a portion of the oral arguments in which the justices question Smith: