Argument recap: California slaughterhouse law under the knife

The Court heard argument yesterday in National Meat Association v. Harris.  You can read my preview of the case here.  It involves the application of the preemption provision of the Federal Meat Inspection Act to a California statute that prohibits a slaughterhouse from buying, receiving, or selling “nonambulatory” swine or processing, butchering, or selling meat from such swine; the California law a also requires a slaughterhouse to immediately euthanize nonambulatory swine.

At argument, the major doctrinal question that could arise in the case – whether there is a “presumption against preemption” in express preemption cases – did not come up.  So it is relatively unlikely that the Court will use the case to make new law on that point.

The Justices’ reaction to the case generally varied based on the particular provision of the California statute being discussed.  With respect to the statute’s application outside the slaughterhouse – the ban on the sale of meat, and perhaps its purchase – the Justices seemed more likely to believe that the FMIA was inapplicable.  But there seemed a broad sense that the activities in the slaughterhouse – including the requirement of immediate euthanizing – were within the scope and operations of the FMIA and thus preempted.

In the course of the state’s argument, the Justices came to appreciate California’s counter-argument:  that its statute was not within the “scope” of the FMIA because the animals covered by the state law were (in light of the statute’s operation) not going to enter the meat supply.  But it was unclear that the state’s argument would gain traction.  Justices Kagan and Scalia, for example, asked whether the FMIA reflects an affirmative judgment that certain meat could enter the food supply, and whether in any event the issue was nonetheless within the “scope” of the federal statute.

The (ultimately funny) question of remedy arose:  what should the Court do in reviewing the district court’s injunction against the statute if it concludes that the statute is preempted only in part?  Justice Breyer commented:  “Do we have to write an 11-part opinion where we treat each of these different things, which are different, separately and analyze it?  To write an 11 part opinion or do we treat each of these differently separately and analyze it.  I’m not trying to get out of work.  I just want to know.”  To which Justice Scalia added: “I’d like to get out of the work, to tell you the truth.”

Chief Justice Roberts also invited the state to respond to the NMA’s principal argument – that the California statute’s provisions relating to the purchase and sale of nonambulatory swine and meat were in any event merely intended to enforce the provision governing activities in the slaughterhouse.  The Court’s view of that question seems ultimately likely to drive its decision whether to vacate the injunction in part or instead affirm it altogether.

Given the relatively straightforward nature of the case, a decision is likely in January or perhaps February.