rumination 24: get back to business…
Almost every law school student takes the same, core classes their first year (although my law school did not require Evidence, required by most). My favorite of these was Constitutional Law, which rolled rhetoric and reason with history. I love reading court decisions. So, every May and June, when the Supreme Court of the United States publishes the bulk of their rulings for the term, I pay close attention.
Today, the Supreme Court issued three decisions: American Tradition Partnership. Inc. v. Bullock (reaffirming its decision in Citizens United v. Federal Elections Commission that political speech does not lose First Amendment protection because it comes from a corporation); Miller v. Alabama (making life sentence without possibility of parole for juvenile homicide offenders “cruel and unusual punishment” under the Eighth Amendment); and the much-anticipated Arizona v. United States case (in which the justices ruled that the federal right to govern matters of immigration preempts the rights of the states).
That means, the Supreme Court’s decision on NFIB v. Sebelius (which determines the constitutionality of the Patient Protection and Affordable Care Act, a.k.a. “ObamaCare”) will come out Thursday, the last day the Court will issue decisions in this term.
Amidst all this activity from the high bench comes noise from the restaurant industry in opposition to California Senate Bill No. 1520, passed into law and signed by the governor of that state in 2004. It prohibits, in the State of California, the force-feeding of birds and the sale of any product derived from force-fed birds starting July 1, 2012. You probably know of it as the “foie gras ban.”
Seven years after the bill was enacted, and a week before it goes into effect, I read it today. It’s short. You can read it too.
I am not going to propose that S.B. 1520 is unconstitutional. Because it’s not.
But I am going to say that it’s stupid. I’ll give you three reasons:
1. As a deterrent for serving foie gras in restaurants, the law is, practically, unenforceable. The bill only prohibits the production and sale of foie gras, but it does not prohibit the possession of foie gras. So, California has domestically arrested the production of what would otherwise be a salable product, yet has not closed the hole on its availability from sources outside the state, or possession of it (like our country has done with Cuban cigars). We’ve seen this scenario before. Chicago passed a ban on the sale of foie gras in 2006 (the handiwork of Alderman Joe Moore). Chefs served foie gras without charge in defiance. The ban was repealed in 2008. I wouldn’t be surprised if the same happened in California.
2. The law is counterproductive. I know animal rights activists would disagree with me. I disagree with them. In 1997, I worked in the California Office of Trade and Investment in Hong Kong, one of more than half a dozen such offices that then-Governor Pete Wilson had set up around the world to facilitate international trade and investment with the State of California. To my knowledge, at that time, California was the only state to have such a wide, foreign reach. So, perhaps it wasn’t surprising that, at that time, California did more import and export business than all other forty-nine states combined. That’s a lot of business. That’s a lot of tax money. And yet, the State of California is bankrupt today. Due to budgetary cuts, their Secretary of State’s Office can’t even answer the phone. I know this, because I had to call to find out why a company registration I was filing (by mail) on behalf of a client was taking weeks, a process that can be done online, with a forty-eight hour (or less) turn-around in my homestate of Missouri. S.B. 1520 does not promote business. It shuts it down. Sure, the foie gras industry is relatively small, both in production and in reach. But it is business nonetheless.
3. I find it absurd that our society would allow the manufacturing and sale of tobacco products, proven to be deadly, yet prohibit the production of foie gras, a food derived from the natural feeding pattern of fowl.*
California, you look silly. Repeal the law and get back to business.
* Yes, I am aware that gavage pushes beyond the limits of natural overfeeding by geese and ducks in the wild.