7. The Commerce Clause

7.1. The Commerce Clause, U.S. Const. art. I, ' 8, grants Congress the authority to "regulate commerce with foreign nations, and among the several States." Chapter 149 unconstitutionally violates this provision. States may not adopt laws that directly affect interstate and foreign commerce. Congress sets the terms and conditions of interstate and foreign transportation of products.

7.2. While states have a limited are in which they can regulate activities affecting interstate and foreign commerce, Chapter 149 does not regulate Plaintiff's commercial activities - it forbids them entirely. It constitutes an internal trade barrier. Plaintiff Empacadora de Carnes cannot transport horsemeat in sealed containers from Mexico to Europe by passing into Texas, depriving it of two major ports of trade in which hundreds of millions of federal funds have been invested to encourage foreign commerce. Plaintiffs cannot transport horsemeat on interstate highway system in Texas, including Interstate Highways 45, 35, and 10, between Dallas, Houston, Fort Forth, and Nuevo Laredo, although the federal government spent hundreds of millions of dollars building these highways to encourage interstate and foreign commerce.

7.3. Chapter 149 does not regulate commercial activities; it prohibits them, far exceeding the limitation on the powers of the states under U.S. Const. art. 1, ' 8. Processing, possession, or transporting healthy and USDA inspected horsemeat intended for human consumption, for a commercial purpose, is prohibited. Slaughtering a horsed owned by an individual, intending to consume the meat or give it away, even if it may be unhealthy or has not been inspected, and even if those to whom it is given do not know it is horsemeat, is not prohibited by Chapter 149. There is no legitimate local public interest furthered by Chapter 149, except to protect some Texas residents from the possible offensiveness arising from knowing foreigners are eating horsemeat processed in Texas. Protecting people from offense occasioned by the tastes of others is too minimal a state concern to warrant the destruction of the employment and businesses of honest and law-abiding people.

7.4. Chapter 149 bans the exportation from any port in Texas of horsemeat intended for human consumption. State restrictions burdening foreign commerce are subject to rigorous and searching scrutiny. United States foreign policy requires that the federal government speak for the nation, providing one voice, not fifty. Because Chapter 149 prohibits otherwise legal foreign commerce, it contravenes the foreign commerce clause provision. This so burdens foreign commerce that no legitimate state end can justify the ban.

7.5. Chapter 149's prohibition against transportation from foreign countries into Texas of horsemeat for human consumption is an embargo. The purpose of Chapter 149 is to prohibit the sale, possession, or transportation of horsemeat to be sold for human consumption anywhere in the world. It does not aim to protect Texas residents, to whom Plaintiffs sell no product. Plaintiffs could slaughter horses for the sale of horsemeat for animal consumption, in pet food or zoo food, and Chapter 149 would not be violated. Plaintiffs could provide free the healthy horsemeat for human consumption. It is only the possession or transportation of horsemeat for sale for human consumption that is prohibited by Chapter 149. No legitimate state interest justifies Chapter 149, so that it can overcome the application of U.S. Const. art. 1, ' 8. Any legal interests served by Chapter 149 do not outweigh national interests.

8. Federal Statutory and Regulatory Preemption

8.1. Congress has preempted state law conflicting with the statutory and regulatory provisions embodied in federal law.

8.2. Even purchase, handling, and the transportation of horses to the slaughterhouse is governed by federal law. The Commercial Transportation of Equine for Slaughter Act of 1996, 21 21 U.S.C. ' 601 et. seq., preempts the field of transporting horses to slaughterhouses, and delegates to the Department of Agriculture the authority to regulate this field. Regulations have been promulgated in 9 C.F.R. ' 88.1 et. seq., prescribing in detail record keeping requirements for purchases and the humane procedures for handling horses intended for transportation for slaughter. Texas, by contrast, does not regulate transportation of horses for slaughter; it prohibits such transportation. Given that all horses processed for meat for human consumption are transported in, to, or from Texas, because the only two processing plants are in Texas, this defeats the Congressional purpose in the finding in 21 U.S.C. ' 602.

8.3. The Meat Inspection Act preempts the area of commerce to which Chapter 149 purports to apply. The scope of the Meat Inspection Act is set forth in 21 U.S.C. ' 602:

Meat and meat food products are an important source of the Nation=s total supply of food. They are consumed throughout the Nation and the major portion thereof moves in interstate and foreign commerce. It is essential in the public interest that the health and welfare of consumers be protected by insuring that meat and meat food products distributed to them are wholesome, not adulterated, and properly marked, labeled and packaged . . . It is hereby found that all articles and animals which are regulated by this act are either in interstate or foreign commerce or substantially affect such commerce, and that regulation by the Secretary and cooperation by the states and other jurisdictions as contemplated by this act are appropriate to prevent and eliminate burdens upon such commerce, to effectively regulate such commerce, and to protect the health and welfare of consumers.

The Act included provisions regarding examination of animals before slaughtering, humane methods of slaughter, post-mortem examination of carcasses, and inspection of meat food products. 21 U.S.C. '' 603, 604 and 606. Procedures for the examination of animals before slaughter and humane methods of slaughter, expressly included "horses, mules, and other equines." 21 U.S.C. '603.

8.4. Federal agricultural statutes regulate the slaughter animals. 7 U.S.C. ' 1902 specifically concerns humane methods of slaughter and provided specific methods of "in the case of cattle, calves, horses, mules, sheep, swine and other livestock."

8.5. Federal regulations govern the slaughter of animals for human consumption. 9 C.F.R. '301.2 provides a number of definitions relating to the Meat Inspection Act. Both the terms "livestock" and "meat" are defined to include "horse" or "equines" when also referring to "cattle, sheep, swine, or goats." "Capable for use as human food" references 'livestock," and horsemeat is capable of use as human food. The federal regulations contain provisions for inspection and slaughterhouses (Section 302.1), inspection of livestock offered for slaughter (Section 309.1), and humane methods of livestock slaughter (Part 313). The regulations apply to livestock pens, floors where livestock are kept, driveways and ramps, and the handling and herding of livestock. 9 C.F.R. '' 313.2 and 313.2.

8.6. In 1921 Congress passed the Packers and Stockyards Act, 7 U.S.C. ' 181 et. seq. The purpose of the Act was to secure the free and unburdened flow of livestock from the ranges in the West and Southwest to the stockyards and slaughterhouses, and then to their final destination. 7 U.S.C. ' 182 defines livestock so as to include "horses," while commerce includes all livestock products that will transit from a state after purchase to another state or foreign nation, 7 U.S.C. ' 183. Deceptive practices are prohibited by packers, processors, transporters, or sellers.

8.7. At least seven states expressly authorize the sale of horse meat: Arizona, Ariz. Rev. Stat. Ann., Section 3.2122; Florida, Fla. Stat. Ann., Section 500.451; Georgia, Ga. Code Ann., Section 26-2-156; Minnesota, Minn. Stat. Ann., Section 31.621; New Jersey, N.J. Stat. Ann., Section 24:16B-38; Ohio, Ohio Rev. Code Ann., Section 919.06-07; and Virginia Va. Code Ann., Section 3.1-884.24. Aside from Texas, only California appears to impose criminal penalties for slaughtering horses for human consumption. Cal. Penal Code, Section 598c.

8.8. The Commerce Clause of the United States Constitution gives the federal government the sole right to regulate commerce with foreign nations and among the states. U.S. Const. art. 1, ' 8, ch. 3. The federal government=s authority to regulate the slaughterhouse industry under the Commerce Clause was settled in the 1890's. Chapter 149 is not enforceable because it contravenes a field preempted by Congress and the Executive Branch.

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