In the

United States Court of Appeals

For the Seventh Circuit ____________

No. 07-2658

CAVEL INTERNATIONAL, INC., et al.,

Plaintiffs-Appellants,

v.

LISA MADIGAN, et al.,

Defendants-Appellees.

____________

Appeal from the United States District Court

for the Northern District of Illinois, Western Division.

No. 07 C 50100—Frederick J. Kapala, Judge.

____________

ARGUED AUGUST 16, 2007—DECIDED SEPTEMBER 21, 2007

____________

Before EASTERBROOK, Chief Judge, and POSNER and

ROVNER, Circuit Judges.

POSNER, Circuit Judge. Horse meat was until recently an

accepted part of the American diet—the Harvard Faculty

Club served horse-meat steaks until the 1970s. No longer

is horse meat eaten by Americans, Christa Weil, “We Eat

Horses, Don’t We?,” New York Times, Mar. 5, 2007, p. A19,

though it is eaten by people in a number of other countries, including countries in Europe; in some countries it

is a delicacy. Meat from American horses is especially

prized because our ample grazing land enables them to eat
2 No. 07-2658

natural grasses, which enhances the flavor of their meat.

Mary Jacoby, “Why Belgians Shoot Horses in Texas For

Dining in Europe,” Wall St. J., Sept. 21, 2005, p. 1.

Cavel International, the plaintiff in this case, owns and

operates the only facility in the United States for slaughtering horses. Until recently it was one of three such

facilities, but the other two, both in Texas, stopped slaughtering horses after the Fifth Circuit upheld a Texas

law similar to the Illinois law challenged in this case.

Empacadora de Carnes de Fresnillo, S.A. de C.V. v. Curry,

476 F.3d 326, 336-37 (5th Cir. 2007).

Cavel’s slaughterhouse, located in DeKalb, Illinois,

near Chicago, has some sixty employees and slaughters

some 40,000 to 60,000 horses a year, out of a total of about

700,000 horses that either are killed or die of natural causes

in the United States annually. Cavel buys its horses for

about $300 apiece from brokers who obtain them at auctions. The company has been in operation for 20 years

and has some $20 million in annual revenues.

Horses are the only animals that Cavel slaughters, and

it represented to us without contradiction that if it loses

this case it will have to shut down. The Texas slaughterhouses were more eclectic—they slaughtered, besides

horses, such sources of “atypical meat products” as bison

and ostrich. But they too represented to the courts that if

forbidden to slaughter horses they would have to shut

down, though it appears that after a brief shutdown they

reopened, adding cattle to their menu, as it were. Illinois

House Bill 1711, Bill for an Act Concerning Horses, 95th

General Assembly 16 (April 18, 2007) (statement of Representative Molaro).

In the United States, horses are killed in slaughterhouses only when the horses’ flesh is destined for eating
No. 07-2658 3

by human beings or (a detail to be considered later) zoo

animals. The flesh of horses that is intended for pet food

is obtained from the corpses hauled to rendering plants

for disposal; the plants also produce glue and other

products from the carcasses. (All these businesses are in

terminal decline. Jeffrey McMurray, “Some Horses Left to

Starve as Market for Meat Shrivels,” Chi. Tribune, Mar. 15,

2007, p. 3.) Unlike Cavel’s slaughterhouse, a rendering

plant’s methods of producing meat from dead horses do

not have to comply with the requirements that the federal

Meat Inspection Act, 21 U.S.C. § 601, prescribes for the

production of meat, expressly including horse meat,

§§ 601(j), (w), intended for human consumption. The Act

is fully applicable to Cavel, see 21 U.S.C. § 617, even

though, because there is no U.S. domestic market for

horse meat as a human food, Cavel’s entire output is

exported to such countries as Belgium, France, and Japan.

Indeed, Cavel is the subsidiary of a Belgian company.

On May 24 of this year, the Illinois Horse Meat Act, 225

ILCS 635, was amended to make it unlawful for any person

in the state either “to slaughter a horse if that person knows

or should know that any of the horse meat will be used for

human consumption,” § 635/1.5(a), or “to import into or

export from this State, or to sell, buy, give away, hold, or

accept any horse meat if that person knows or should know

that the horse meat will be used for human consumption.”

§ 635/1.5(b). (Prior to the amendment, the statute merely

required a license to slaughter horses and imposed various

inspection, labeling, and other regulatory restrictions on

licensees. The prohibition has made these provisions

academic). Cavel claims that the amendment violates both

the federal Meat Inspection Act and the commerce

clause—the provision in Article I, section 8, of the federal

Constitution that in terms merely empowers Congress to
4 No. 07-2658

regulate interstate and foreign commerce but that has been

interpreted to limit the power of states to regulate interstate

and foreign commerce even in the absence of federal

legislation inconsistent with the state regulation. Willson v.

Black Bird Creek Marsh Co., 27 U.S. (2 Pet.) 245, 252 (1829)

(Marshall, C.J.); United Haulers Ass’n, Inc. v. OneidaHerkimer Solid Waste Management Authority, 127 S. Ct. 1786,

1792-93 (2007).

Cavel moved for a preliminary injunction against the

enforcement of the amendment. The district court declined to issue it, on the ground that Cavel had failed to

make a strong showing that it was likely to prevail on the

merits. Cavel appealed, and we enjoined the application

of the amendment to Cavel pending our decision of its

appeal, 2007 WL 2239215 (7th Cir. July 18, 2007), Chief

Judge Easterbook dissenting.

The challenge based on the Meat Inspection Act need

detain us only briefly. Cavel points to the Act’s preemption clause—“requirements within the scope of this Act

with respect to premises, facilities and operations of any

establishment at which inspection is provided under title

I of this Act [including facilities at which horses are

slaughtered, 21 U.S.C. §§ 601(d), (j)] which are in addition

to, or different than those made under this Act may not

be imposed by any State or Territory or the District of

Columbia,” § 678—and argues that it signifies Congress’s

decision to sweep aside any state law that would render

the federal requirements inapplicable to Cavel’s slaughterhouse by forbidding horses to be slaughtered. The argument confuses a premise with a conclusion. When the

Meat Inspection Act was passed (and indeed to this day),

it was lawful in some states to produce horse meat for

human consumption, and since the federal government
No. 07-2658 5

has a legitimate interest in regulating the production of

human food whether intended for domestic consumption or for export—exporting meat unfit for human consumption would be highly damaging to the nation’s

foreign commerce—it was natural to make the Act applicable to horse meat. That was not a decision that

states must allow horses to be slaughtered for human

consumption. The government taxes income from gambling that violates state law; that doesn’t mean the state

must permit the gambling to continue. Given that horse

meat is produced for human consumption, its production must comply with the Meat Inspection Act. But if it

is not produced, there is nothing, so far as horse meat is

concerned, for the Act to work upon.

Of course in a literal sense a state law that shuts down

any “premises, facilities and operations of any establishment at which inspection is provided” is “different” from

the federal requirements for such premises, but so literal

a reading is untenable. If despite its title the Meat Inspection Act were intended to forbid states to shut down

slaughterhouses, it would have to set forth standards

and procedures for determining whether a particular

slaughterhouse or class of slaughterhouses should be

shut down; and it does not. The Act is concerned with

inspecting premises at which meat is produced for

human consumption, see, e.g., 21 U.S.C. § 606, rather than

with preserving the production of particular types of meat

for people to eat. Empacadora de Carnes de Fresnillo, S.A.

de C.V. v. Curry, supra, 476 F.3d at 333.

The more difficult question is whether the horse-meat

amendment violates the commerce clause as interpreted to

prohibit state regulations that unduly interfere with the

foreign commerce of the United States. Cavel fastens on
6 No. 07-2658

subsection (b) of the Illinois amendment, which forbids

the importing and exporting of horse meat for human

consumption. But that provision is not addressed to Cavel;

it is addressed to a middleman who having procured horse

meat from Cavel tries to export it, or that imports horse

meat to Illinois hoping to induce Americans to eat it. (We

assume that the terms “import” and “export” refer to

bringing horse meat into Illinois from another state, or

shipping it to another state, as well as to importing

horse meat from and exporting it to a foreign country.)

The provision directed at Cavel is subsection (a), which

forbids the slaughtering of horses for human consumption. If that subsection is valid, Cavel loses its case.

The clearest case of a state law that violates the commerce clause is a law that discriminates in favor of local

firms. E.g., Chemical Waste Management, Inc. v. Hunt, 504

U.S. 334 (1992); Bendix Autolite Corp. v. Midwesco Enterprises,

Inc., 486 U.S. 888 (1988); American Trucking Ass’ns v.

Scheiner, 483 U.S. 266 (1987); Baldwin v. G.A.F. Seelig, Inc.,

294 U.S. 511, 521-22 (1935) (Cardozo, J.). Suppose a

state passed a law that forbade the importation of wild

baitfish. That would be a discrimination against interstate and foreign commerce. This would not make the

law unconstitutional per se, because the state might be

able to prove that it needed the law in order to protect

“unique and fragile fisheries” from parasites prevalent in

out-of-state fisheries and that there was “no satisfactory

way to inspect shipments of live baitfish” for those

parasites—that is Maine v. Taylor, 477 U.S. 131, 141 (1986).

The case turned on factual issues of a kind that a court

can resolve without undue risk of error.

There is no discrimination in the present case insofar as

the prohibition against slaughter is concerned. If a local

firm (remember that Cavel is foreign-owned) wanted to
No. 07-2658 7

slaughter horses, it could not do so. No local merchant or

producer benefits from the ban on slaughter. Compare

Hunt v. Washington State Apple Advertising Comm’n, 432

U.S. 333 (1977), with Exxon Corp. v. Governor of Maryland,

437 U.S. 117 (1978).

The absence of outright discrimination does not terminate inquiry into a possible violation of the commerce

clause. There are situations in which states by ostensibly

local regulations distort the operation of interstate markets.

An example is a severance tax on a raw material, such as

oil or coal, of which the state (perhaps in conjunction

with other states) has a monopoly or near monopoly and

which is almost entirely exported rather than consumed

locally. The incidence of the tax will fall on the consumers in other states, who have no voice in the politics

of the producing state, and the result may be a level of

taxation and resulting price to consumers that greatly

exceeds the cost of the services the state provides to

producers of the raw material, and that by doing so burdens the export of the raw material to other states. Or

imagine a state’s imposing onerous taxes on all trucks

that use its highways, knowing that almost all the truck

traffic originates and terminates in other states and exploiting a locational monopoly to shift the costs of public

services unrelated to highway maintenance to suppliers

and consumers in other states.

Such cases present more difficult factual issues than

cases of outright discrimination. Plaintiffs have sometimes prevailed, at least if the impact on commerce is

evident. E.g., Raymond Motor Transportation, Inc. v. Rice, 434

U.S. 429 (1978); Kassel v. Consolidated Freightways Corp., 450

U.S. 662, 664 (1981); but see South Carolina State Highway

Department v. Barnwell Bros., Inc., 303 U.S. 177 (1938). But

in the case of the severance tax the “local” character of the
8 No. 07-2658

activity taxed, although it does not immunize the tax from

scrutiny, Commonwealth Edison Co. v. Montana, 453 U.S. 609,

617 (1981), causes a judicial hiccup, see id. at 618-19, even

though the incidence of the tax is not local. In this case, too,

the activity restricted by the state—the slaughter of horses

in Illinois—has a local character but primarily foreign

consequences. There can be harmful effects on free trade

among the states that do not stem from even a mild

disparity in treatment—as in this case, or the highway

cases that we cited earlier, where there is no discrimination in favor of a local supplier. But the plaintiff has a

steep hill to climb. “Where the statute regulates evenhandedly to effectuate a legitimate local public interest,

and its effects on interstate commerce are only incidental,

it will be upheld unless the burden imposed on such

commerce is clearly excessive in relation to the putative

local benefits.” Pike v. Bruce Church, Inc., 397 U.S. 137, 142

(1970) (emphasis added); see also Minnesota v. Clover Leaf

Creamery Co., 449 U.S. 456, 471-74 (1981).

We have expressed doubt that even this tough test

is available to plaintiffs unless they show at least “mild”

discrimination against interstate commerce; Pike seems to

require that at least “incidental” “effects on interstate

commerce be shown.” National Paint & Coatings Ass’n v.

City of Chicago, 45 F.3d 1124, 1131 (7th Cir. 1995); Grant’s

Dairy-Maine, LLC v. Commissioner of Maine Dep’t of Agriculture, Food & Rural Resources, 232 F.3d 8, 18 (1st Cir. 2000);

Automated Salvage Transport, Inc. v. Wheelabrator Environmental Systems, Inc., 155 F.3d 59, 75 (2d Cir. 1998); Instructional Systems, Inc. v. Computer Curriculum Corp., 35 F.3d

813, 825-26 (3d Cir. 1994). Some cases disagree, and take

“even-handedly” at face value, Eastern Kentucky Resources

v. Fiscal Court, 127 F.3d 532, 544-45 (6th Cir. 1997); American

Target Advertising, Inc. v. Giani, 199 F.3d 1241, 1254 (10th
No. 07-2658 9

Cir. 2000), heartened by a footnote in GMC v. Tracy, 519

U.S. 278, 299 n. 12 (1997), in which the Supreme Court

noted that “a small number of our [i.e., the Supreme

Court’s] cases have invalidated state laws under the

dormant Commerce Clause that appear to have been

genuinely nondiscriminatory, in the sense that they did

not impose disparate treatment on similarly situated instate and out-of-state interests, where such laws undermined a compelling need for national uniformity in

regulation.”

There may be no real disagreement in the case law.

National Paint & Coatings Ass’n acknowledges that even

in the absence of discrimination, a burden on interstate

commerce that had no rational justification would be

invalid. 45 F.3d at 1131. An example is the Illinois mudguard law invalidated in Bibb v. Navajo Freight Lines, Inc.,

359 U.S. 520 (1959). The law required all trucks in the

state, thus including those traveling interstate, to be

equipped with curved mudguards that the district court

had found not only conferred “no” safety benefits over

straight ones but actually created “hazards previously

unknown.” Id. at 525. The law impeded interstate commerce—though maybe local commerce just as much—and

because it lacked a rational basis it was invalid despite the

lack of proof of a disparate impact. National Paint &

Coatings Ass’n v. City of Chicago, supra, 45 F.3d at 1131;

Norfolk Southern Corp. v. Oberly, 822 F.2d 388, 404-05 (3d

Cir. 1987).

Any law, moreover, that irrationally burdens property

rights can, quite apart from the commerce clause, be

challenged as a deprivation of property without due

process of law. Lingle v. Chevron U.S.A., Inc., 544 U.S. 528,

540-45 (2005); Greater Chicago Combine & Center, Inc. v. City

of Chicago, 431 F.3d 1065, 1071-72 (7th Cir. 2005). That
10 No. 07-2658

makes us wonder just what work Pike does, but that is

not an issue we need pursue.

Cavel argues, in the spirit of Bibb, that Illinois’s ban on

slaughtering horses for human consumption serves no

purpose at all. The horses will be killed anyway when

they are too old to be useful and what difference does it

make whether they are eaten by people or by cats and

dogs? But the horse meat used in pet food is produced

by rendering plants from carcasses rather than by the

slaughter of horses, and the difference bears on the effect

of the Illinois statute. Cavel pays for horses; rendering

plants do not. If your horse dies, or if you have it

euthanized, you must pay to have it hauled to the rendering plant, and you must also pay to have it euthanized

if it didn’t just die on you. So when your horse is no longer

useful to you, you have a choice between selling it for

slaughter and either keeping it until it dies or having

it killed. The option of selling the animal for slaughter

is thus financially more advantageous to the owner,

and this makes it likely that many horses (remember

that Cavel slaughters between 40,000 and 60,000 a year)

die sooner than they otherwise would because they can

be killed for their meat. States have a legitimate interest

in prolonging the lives of animals that their population

happens to like. Hughes v. Oklahoma, 441 U.S. 322, 337

(1979); cf. 7 U.S.C. § 2131; Church of the Lukumi Babalu Aye,

Inc. v. City of Hialeah, 508 U.S. 520, 538 (1993); Hoctor v. U.S.

Dept. of Agriculture, 82 F.3d 165, 168 (7th Cir. 1996). They

can ban bullfights and cockfights and the abuse and

neglect of animals.

Of course Illinois could do much more for horses than

it does—could establish old-age pastures for them, so

that they would never be killed (except by a stray cougar),

or provide them with free veterinary care. But it is permit-
No. 07-2658 11

ted to balance its interest in horses’ welfare against the

other interests of its (human) population; and it is also

permitted to take one step at a time on a road toward the

humane treatment of our fellow animals. E.g., Greater

Chicago Combine & Center, Inc. v. City of Chicago, supra, 431

F.3d at 1073; cf. Bowen v. Owens, 476 U.S. 340, 346-47 (1986);

Williamson v. Lee Optical of Oklahoma, Inc., 348 U.S. 483, 488-

89 (1955); Milner v. Apfel, 148 F.3d 812, 818-19 (7th Cir.

1998); Johnson v. Daley, 339 F.3d 582, 596 (7th Cir. 2003).

There is a wrinkle in this analysis, however, though

unremarked by the parties. Zoos feed a considerable

amount of horse meat to their charges. Brad Haynes, “Zoos

in a Pickle Over Horse Meat,” Seattle Times, Aug. 14, 2007,

http://seattletimes.nwsource.com/html/localnews/200

3835227_horsemeat14m.html (visited Sept. 18, 2007). For

living proof, we reproduce a photograph from Haynes’s

article, with its caption:

“Kwanzaa, a young South African lion at Cameron Park Zoo

in Waco, Texas, celebrates his

birthday with a cake made

from 10 pounds of horse meat,

plus whipped cream and a

carrot.”
12 No. 07-2658

As the article explains, American zoos, seeing the handwriting on the wall so far as the domestic slaughter of

horses is concerned, are shifting to importing horse meat.

So the slaughter of horses will continue. For all we know,

Cavel may seek out a new market in America’s zoos. We

do not know why, with the cessation of horse slaughtering at the Texas slaughterhouses, Cavel has not done so

already.

But even if no horses live longer as a result of the new

law, a state is permitted, within reason, to express disgust

at what people do with the dead, whether dead human

beings or dead animals. There would be an uproar if

restaurants in Chicago started serving cat and dog

steaks, even though millions of stray cats and dogs are

euthanized in animal shelters. A follower of John

Stuart Mill would disapprove of a law that restricted

the activities of other people (in this case not only

Cavel’s owners and employees but also its foreign consumers) on the basis merely of distaste, but American

governments are not constrained by Mill’s doctrine.

The careful reader will have noted that we have so far

been discussing the legal principles governing state

burdens on interstate commerce, though the Illinois

statute burdens foreign commerce. Quite apart from

economic consequences, an interference by a state with

foreign commerce can complicate the nation’s foreign

relations, which are a monopoly of the federal government; states are not permitted to have their own foreign

policy, their own embassies and consuls and ambassadors,

and so forth. “Foreign commerce is pre-eminently a

matter of national concern. ‘In international relations and

with respect to foreign intercourse and trade the people

of the United States act through a single government
No. 07-2658 13

with unified and adequate national power.’ Board of

Trustees v. United States, 289 U.S. 48, 59 (1933).” Japan Line,

Ltd. v. County of Los Angeles, 441 U.S. 434, 448-51 (1979); see

also Itel Containers Int’l Corp. v. Huddleston, 507 U.S. 60

(1993).

Suppose Cavel were the only source of horse meat for

human consumption in Europe and the law provoked

European governments into remonstrating with our State

Department, which in response submitted to us an amicus

curiae brief denouncing the law. See Container Corp. of

America v. Franchise Tax Board, 463 U.S. 159, 195 (1983).

True, a Japan Line challenge failed in Barclays Bank PLC v.

Franchise Tax Bd., 512 U.S. 298, 324-28 (1994), even though

a number of our trading partners complained loudly

about a state law that increased the costs to foreign companies of filing U.S. tax returns. But the case was special

because Congress had repeatedly refused to grant the

relief sought by those companies. Although Congress had

not explicitly authorized the state practice, the Court

ruled that Congress’s lengthy consideration, followed

by inaction, was an implicit authorization that defeated

the commerce-clause challenge.

But assuming therefore that the doctrine of Japan Line

survives the Barclays Bank case, this cannot help Cavel,

which did not tell the district court and has not told us

what percentage of the horse meat consumed by Europeans

it supplies and thus whether its being closed down is

likely to have a big effect on the price of horse meat in

Europe. And while it is true that the foreign minister of

Belgium wrote a letter to Governor Blagojevich inquiring

about the status of the bill that became the horse-meat

amendment, he did not say that his government was

opposing the bill. So far as we know, there was no follow-
14 No. 07-2658

up (we have not been told whether the letter was

answered and if so what it said); and we have heard

nothing from any other foreign government or from the

State Department.

The curtailment of foreign commerce by the amendment

is slight and we are naturally reluctant to condemn a

state law, supported if somewhat tenuously by a legitimate state interest, on grounds as slight as presented by

Cavel. Yet we are not entirely happy about having to

uphold the Illinois statute. That the company is foreignowned and its entire output exported means that the

shareholders and consumers harmed by the amendment

have no influence in Illinois politics, though there is no

hint in the history of the amendment of local hostility to

foreigners but only of indifference to them, in the remark

of the state’s agriculture director that “there is no domestic

market for horsemeat and, therefore, no need for this

practice to continue in Illinois.” Governor’s Office Press

Release, “Gov. Blagojevich Signs Legislation Banning

the Slaughter of Horses in Illinois for Human Consumption,” May 24, 2007, www.illinois.gov/PressReleases/

ShowPressRelease.cfm?SubjectID=3&RecNum=5995

(visited Sept. 5, 2007) (emphasis added).

The fact that the governor’s signing statement acknowledges the role of the Hollywood actress Bo Derek, author

of the book Riding Lessons: Everything That Matters in Life

I Learned From Horses (2002), in outlawing the slaughtering of horses could be thought to inject a frivolous note

into a law that forces the closing of a business that has

very little to do with the people of Illinois. But this is not

a basis for invalidating a nondiscriminatory statute that

interferes minimally with the nation’s foreign commerce

and cannot be said to have no rational basis.
No. 07-2658 15

Although the appeal is from the denial of a preliminary

injunction, the merits of Cavel’s challenge to the horsemeat law have been fully briefed and argued and there

are no unresolved factual issues the resolution of which

in a trial would alter the result. In such a case, courts

treat the appeal as if it were from a final judgment. Mast,

Foos & Co. v. Stover Mfg. Co., 177 U.S. 485, 494-95 (1900);

Illinois Council On Long Term Care v. Bradley, 957 F.2d 305,

309-10 (7th Cir 1992); Amandola v. Town of Babylon, 251 F.3d

339, 343-44 (2d Cir. 2001) (per curiam); Solantic, LLC v. City

of Neptune Beach, 410 F.3d 1250, 1272-74 (11th Cir. 2005). So

the judgment is affirmed, the suit dismissed with prejudice,

and the injunction that we granted pending appeal dissolved.

A true Copy:

Teste:

 _____________________________

Clerk of the United States Court of 

Appeals for the Seventh Circuit 

USCA-02-C-0072—9-21-07