Separation of Powers and Federalism

By William Funk, the Robert E. Jones Professor of Law at Lewis & Clark Law School and a Member Scholar of the Center for Progressive Reform. Together with two other law professors, Thomas McGarity of the University of Texas and Sandra Zellmer of the University of Nebraska, he has filed an amicus brief supporting respondents’ arguments against preemption. This is a cross-post from CPRBlog.

On November 9 the Supreme Court will hear oral argument in National Meat Association v. Harris, wading once again into the mire of federal preemption. The National Meat case involves a California statute that prohibits the slaughter of non-ambulatory animals for human consumption and requires that non-ambulatory animals be immediately and humanely euthanized. A federal law, the Federal Meat Inspection Act (FMIA), thoroughly regulates, although one could question how strictly, the process of slaughtering animals for human consumption. It also contains an express preemption provision that prohibits states from making any “requirements within the scope of this chapter with respect to premises, facilities and operations of any establishment [subject to this chapter], which are in addition to, or different than those made under this chapter.” 21 U.S.C. § 678. But then it also provides that: “this chapter shall not preclude any State ... from making requirement[s] or taking other action, consistent with this chapter, with respect to any other matters regulated under this Act.” The National Meat Association filed suit for declaratory and injunctive relief against the California law as it applies to swine and the processing of pork, claiming that the California law is preempted by the federal law. The Ninth Circuit, in an opinion reflecting the inimitable style of Judge Alex Kozinski, held that the California law was not preempted. The court said that the California law merely identifies what animals may be slaughtered for human consumption, not how they are to be slaughtered. And the law’s provision requiring the euthanizing of non-ambulatory animals, the circuit court said, does not relate to the slaughtering of animals for human consumption.  The Supreme Court, against the advice of the Solicitor General, granted certiorari.

by Nicole Flatow

Republican candidates are making the courts a campaign issue, launching “biting and sustained attacks on the federal courts and the role they play in American life,” The New York Times reports in a front-page story today.

"Any one of those proposals would significantly undercut the independence and authority of federal judges,” echoes a second article from The Associated Press.

Proposals from candidates include eliminating those courts that politicians deem “radical,” barring courts from deciding cases on same-sex marriage, and bringing judges before Congress to explain their decisions, under threat of impeachment.

 “These threats go far beyond normal campaign season posturing,” Justice at Stake Executive Director Bert Brandenburg told The Times. “They sound populist, but the proposal is to make courts answer to politicians and interest groups.”

What’s more, several of these proposals run counter to our constitutional system, such as imposing term limits on federal judges, and enabling Congress to overturn Supreme Court decisions by a two-thirds vote.

"Debates like these could threaten to lead to a new cycle of attempts to politicize the courts,” Brandenburg tells The Associated Press.