President Trump should veto the Preventing Animal Cruelty and Torture Act, which, having been passed unanimously by both the House and Senate, will land imminently on his desk. The bill is flagrantly unconstitutional, and the fact that it deals with a sensitive and emotive topic does not change that.
There is nothing wrong with laws protecting animals from cruelty and torture. Indeed, if I had my way, all fifty states would pass one. But the federal government operates under a charter of enumerated powers, and none of those powers confer the authority to regulate what is nothing more or less than quotidian criminal behavior. None of the usual workarounds apply, either. Animal cruelty is not “interstate commerce,” even under our farcically expansive modern definition; the animals being defended here do not work for the federal government; and their protection does not fall under any of the powers that were granted to the government by the 14th Amendment. Non-humans are worthy of our protection. But they are not “persons” or “people” and, legally, that matters. This is a question for the states.
President Trump will not veto this bill, of course, and he will decline to do so for the same reason that no lawmaker dared to oppose it in the first instance: Namely, that he does not want to be accused of being “in favor” of “cruelty” and “torture.” That, however, is a political argument — the product of our living in an unhealthy and immature political culture — rather than a legal one. There is no caveat within the Constitution that holds that the federal government may do whatever it likes if is purpose is generally deemed to be worthwhile. We either have a legal order or we do not. “Think of the kittens” is no argument at all.