A recently filed petition in the U.S. Supreme Court asks the Justices to review and reverse a federal appeals court ruling that Congress had the constitutional authority to ban cockfighting in Puerto Rico. As I explain below, the Court should and likely will reject the petition. However, the case raises uncomfortable questions about the apparent hypocrisy of politicians and the vast majority of the public who object to cruelty to the thousands of chickens killed or injured for sport but not the billions slaughtered to make the McNuggets and other animal food products they consume.
In 2018, Congress amended federal law in a way that mostly eliminated what had been an exception from a federal ban for cockfights that were allowed under local law and in which the sponsors lacked knowledge that the roosters exploited in the cockfight had been moved in interstate commerce. Various individuals who breed roosters for and conduct cockfights in Puerto Rico challenged the law as amended. They sued federal officials, seeking to enjoin the law’s enforcement, arguing that the statute exceeds the scope of congressional power.
The plaintiffs lost in the district court, which granted summary judgment for the government. They lost again in the appeals court. The petition to the Supreme Court for a writ of certiorari raises one question: “Whether Congress has power under the Commerce Clause to criminalize cockfighting on the island of Puerto Rico.”
The answer to that question is “yes.” As the appeals court explained, modern case law allows Congress to regulate local economic activity that has an impact on interstate or foreign commerce (including commerce between Puerto Rico and elsewhere), especially where, as in the challenged statute, the law contains a so-called jurisdictional element requiring the government to prove the interstate or foreign link in each case. Cockfighting for “purposes of sport, wagering, or entertainment,” as limited by the statutory definition, undoubtedly counts as economic activity. Indeed, the plaintiffs’ own certiorari petition underscores that proposition. It asserts “that cockfighting supports more than 11,000 jobs and has injected approximately $65 million annually into Puerto Rico’s economy.”
There is yet another reason why the Supreme Court should make short work of the plaintiffs’ petition. The Commerce Clause provides ample authority for congressional regulation or prohibition of cockfighting in the fifty states. However, there is an additional basis for congressional regulation of cockfighting in Puerto Rico. Article IV, Section 3 of the Constitution empowers Congress to “make all needful rules and regulations respecting [a] territory” in the same way that a state legislature can make laws for a state.
The plaintiffs’ petition to the Supreme Court does not directly address the Territories Clause, but it suggests that the Clause does not apply. The petition repeatedly invokes the autonomy that Congress conferred on Puerto Rico in the 1950s, when the territory and the U.S. government entered what was styled a “compact.” Echoing a position espoused most forcefully by Justice Sotomayor in a concurrence in a case decided last year, the plaintiffs imply without quite saying expressly that the compact was a permanent relinquishment of Congress’s Article IV power to legislate for Puerto Rico.
That view is at best disputed. As Professor Christina Ponsa-Kraus noted in the Yale Law Journal, Justice Sotomayor’s concurrence took sides in a long-running political dispute within Puerto Rico about the island’s status and fate. Professor Ponsa-Kraus defends the much more plausible view that so long as Puerto Rico remains a territory of the United States—as it undoubtedly is—Congress retains the ultimate constitutional authority to legislate for it, even if doing so would break a moral commitment.
The appeals court noted that the Article IV power to legislate for the territories could provide an alternative basis for the cockfighting ban’s application to Puerto Rico. However, finding more than adequate authority under the Commerce Clause, the court did not decide the Territories Clause issue. The case thus does not present an opportunity for the Supreme Court to resolve the question raised last year by Justice Sotomayor.
The fact that the territorial legislation issue is implicated though not directly raised by the plaintiffs’ argument also makes the case what Supreme Court lawyers call a bad “vehicle” for addressing the Commerce Clause question their petition does pose. Accordingly, even if one thought the Commerce Clause question worth addressing, it would not make sense for the Supreme Court to address it in this case.
The foregoing analysis suffices to explain why the Supreme Court should deny the petition for certiorari. Readers familiar with my other writing will not be surprised to learn, however, that I think the case raises broader policy issues, as it piques my interest not only as a constitutional law scholar but also as a vegan who objects to cruelty to animals. Laws like the federal cockfighting ban may be problematic because they proscribe one unpopular form of cruelty to animals even as the vast majority of the law’s supporters routinely demand animal products that come from the infliction of suffering on a much more massive scale.
To be sure, people who eat chickens derive gustatory pleasure, whereas people who attend cockfights derive their pleasure from the thrill of mortal competition. Perhaps that makes the latter group more bloodthirsty or even more culpable.
However, neither form of pleasure derived from animal suffering is necessary to living a good life. Nor, from the perspective of the chicken, does it make much difference whether the coup de grace is delivered by the spurs attached to another chicken or the axe at the slaughterhouse. It is hard to see a principled basis for banning cockfights but not the much more widely practiced methods of harming and killing chickens and other feeling animals.
In the end, however, I do not oppose the cockfighting ban or most other measures that selectively forbid particular forms of cruelty to animals. Rather, I agree with my colleague, fellow Verdict columnist, and occasional co-author Professor Sherry Colb. When quarterback Michael Vick pleaded guilty to conducting dog fights in 2007, she noted the hypocrisy but went on to laud it as the homage vice pays to virtue.
So too here, the cockfighting ban is woefully underinclusive as a means of protecting chickens. Its application to a territory in which most inhabitants are members of a traditionally disadvantaged ethnic minority also raises troubling questions about America’s colonial legacy. Yet those are not reasons to reject the cockfighting ban; they are reasons to build on the revulsion people rightly feel at the wanton infliction of pain and suffering on animals through compassionate education and, ultimately, through much broader laws.