As the agricultural industry expands, 62 percent of the world’s mammal biomass is made up of animals used for farming, while humans make up 34 percent and wild mammals make up only four.[1] According to the US Department of Agriculture, 9.76 billion land animals in the United States including chickens, turkeys, cattle, pigs, ducks, and sheep were killed in the year of 2020; a comparable number of 8.2 billion were killed abroad and imported for food in the US, and an estimated 8.53 billion died before they could even be slaughtered.[2] Many are transported over great distances in cramped and hot spaces that lead to death before they can arrive at their destination.[3] With a growing global population and increasing demand for food, it is difficult to imagine a world without industrial agriculture; certainly, wild populations of animals would be unable to support the meat demand of the developed world. With this intrinsic and pressing need for farming in mind, how should we devise a legal system that regulates the treatment of farm animals ethically and safely? Existing animal law is often created to , as one nonprofit defines it, “safeguard animals from cruelty, neglect, and exploitation.”[4] Can this definition be expanded to include defensible rights, and how do we balance the concern we have for the ethics of animal treatment with the pragmatic need to feed a growing population of people?
This article argues that our legal framework governing the treatment of farm animals is inconsistent with the legal philosophy and ethical discourse that it is founded upon. Building upon Robert Garner’s A Theory of Justice for Animals and considering Peter Singer’s moral framework in Animal Liberation Now, this article first focuses on the legal philosophy of animal law from the framework of ethics. As animal law is applied differently to pets, animals used for sport and animal fighting, and animals used as livestock, it is necessary to comparatively analyze these different cases as well as the ethical rationale for how we legislate our relationships with animals. Then, this article will look at the authority given by the Tenth Amendment, the Commerce Clause, and police powers to the federal government and state governments to legislate on issues of animal welfare. Defined by the International Fund for Animal Welfare (IFAW) as “the physical and mental wellbeing of animals”, animal welfare often weighted against human interest in legislation.[5] In this paper, we will define animal welfare using that definition as well as the EU’s “so-called ‘Five Freedoms’: freedom from hunger and thirst; freedom from discomfort; freedom from pain, injury and disease; freedom to express normal behavior and freedom from fear and distress.”[6] The opposite of welfare in this instance can be defined as suffering, which I will establish that animals have a right to avoid.
In terms of existing legislation, federal statute and regulations are outdated: the Animal Welfare Act (AWA), Twenty-Eight Hour Law, and the Humane Methods of Slaughter Act (HMSA) have proven to either exclude large populations of farm animals or be insufficient in protecting animal welfare. However, state farm animal legislation has increased in recent years, following shifts in public opinion; for example, California’s Proposition 12 on farm animal confinement prohibits the sale of animal products from producers who keep animals “confined in a cruel manner,” the standard for cruelty being set individually for each animal and the requirements being 43 square feet for calves, 24 square feet for breeding pigs, and 144 inches as well a cage-free requirement for egg laying hens.[7] While such laws do exist in a few states, the delay between ethics and legislation largely causes farm animal regulation to be outdated and lag behind advances in the ethical foundations of animal law. Clearly, an updated approach to farm animal regulation is necessary to more closely align with current ethical principles that remain underrepresented in our current statutes. In this aim, this paper will discuss the importance of legal advancements in the field of animal law in accordance with our understanding of ethics.
Ethical Frameworks
In Animal Liberation Now, philosopher Peter Singer argues that humans and animals are morally equivalent and that to avoid the main issue in animal rights, which he identified as speciesism or discrimination based on species, “we must allow that beings who are similar in all relevant respects have a similar right to life; and mere membership in our own species is not a morally relevant distinction on which to base this right.”[8] Singer’s method to achieve such an ethical ideal is unclear, but he seems to praise both grassroots political action, such as a petition signed by 1.4 million Europeans to outlaw cages that lead to legislation, and technological advancements such as cheaper lab-grown meat as steps in the right direction.[9] He also calls for the dismantling of the industrial farming system, urging “the moral necessity of refusing to buy or eat the flesh or other products of birds and mammals who have been reared in factory farm conditions.[10] While Singer’s view of species equality is morally consistent and advocates for positive change, it is unlikely to influence legislation, and it is doubtful that many of those who advocate for animal rights or buy lab grown meat share Singer’s views.
The main issue is that Singer’s view of animal morality is societally, politically and legally unfeasible. Singer writes that “to discriminate against beings solely on account of their species is a form of prejudice, immoral and indefensible in the same way that discrimination on the basis of race or sex is immoral and indefensible.”[11] However, this is impossible to implement in modern society, as implementing Singer’s worldview would mean that killing and eating any animal is paramount to murder. It would mean that every person would have to become an herbivore in a global system in which meat consumption has become a key source of protein for many. Not just that, but giving animals moral equivalence implies other responsibilities: should we strive to eliminate animal disease and hunger the way we do for people? Legally, recognizing animals and granting them even a small amount of protection under the Equal Protection clause under a would mean many laws governing agriculture would be void and most farm operations would be shut down. This would prevent Congressional management of wild animals and herds under the Property Clause, and also impinge on the Free Exercise Clause in some cases: the Santería faith requires animal sacrifice and many indigenous and native traditions involve animal consumption. Overturning these century-long traditions would be challenged in court, and mere legislation would likely be insufficient. There would need to be a Constitutional amendment recognizing animals to enact Singer’s ethos, an almost impossible task due to the difficulty of the amendment process as well as the demanding nature of Signer’s animal rights doctrine.
In A Theory of Justice for Animals, Robert Garner provides an alternate answer: moral equivalence is not the answer because animals have a lesser interest in life and liberty, but “like interests of humans and animals are to be treated equally,” something he notes as “an essential principle of justice.”[12] Even if we take species-egalitarianism’s moral claims at face value, Garner calls it a “realistic utopia,” a standard that is morally consistent yet unachievable because of how demanding reaching that standard would be.[13]
In his book, Garner sets out to create a justice-based theory which includes animals in a definition of justice; drawing on other philosophers, he puts forth an enhanced sentience position that affirms an animal interest in life and liberty that can only be overridden by a stronger interest in life and liberty.[14] This sets a morally demanding threshold that both disavows animal suffering and affirms a right to life: under the enhanced position a person could not slaughter an animal unless their interest is greater than the animals interest in life, such as if they were to starve otherwise. Alternatively, he puts forth the sentience position, where he argues that “Whatever the benefit that might accrue to humans, or other animals for that matter, practices that inflict suffering on animals are prohibited,” and considers this a nonideal and more realistically feasible path to animal justice.[15] While Singer’s views may be considered too divisive to apply to the values a large number of people, we can base our understanding of animal ethics in the United States upon Garner’s principle of animal justice; it can be said that many Americans wish to protect animals from unnecessary harm and suffering and, as shall be shown, have chosen to express these values through legislation. Taking a moment to acknowledge that traditional Kosher and most traditional halal slaughtering practices would likely be protected under the Religious Freedom Restoration Act of 1993 nationally, they may nonetheless be banned under state laws under the Employment Division v. Smith doctrine which allows laws neutral in character to burden religion. A policy of religious exceptions would likely be wise, especially since the greatest cause of animal suffering is industrial farming and not religious slaughter, but policy specifics need not be decided now. With this in mind, we have the central question of what a system of legal justice should look like regarding farm animals in the United States.
Garner’s framework comes with another big advantage: justice. Granting animals legal protection under a justice framework is important because it establishes a legal obligation to recognize certain animal rights, whereas ethical and moral principles lack this obligation. Indeed, the American public has a set of fundamental moral values that are often expressed through the democratic process in the form of legislation; additionally, in a democratic republic, citizens have a responsibility to vote against, protest, and petition the government against unjust laws. However, justice for animals is hard to define. Defined by the Cornell Legal Information Institute as treating people “impartially, fairly, properly, and reasonably by the law and by arbiters of the law, that laws are to ensure that no harm befalls another, and that, where harm is alleged, a remedial action is taken”, extending this definition to animals would grant animals moral equivalence under impartial treatment.[16] Some philosophers define animal justice as granting animals the freedom to live full, unbothered lives.”[17] Garner himself defines justice as the right to rightful possession and ownership of some entity.[18]
For the purposes of this paper, we can define justice as treating sentient animals impartially with regard to other animals and recognizing their right to live without suffering, albeit not recognizing an absolute right to life. In American animal law, animal welfare should be considered and animal suffering should be minimized; Garner’s A Theory of Justice for Animals and specifically his sentience position provides the best ethical framework for understanding animal welfare in law because his perspective stems from justice based instead of morality-based ethics. Even though animal rights are not the same as a person’s, they exist and should be protected through legislation.
Government Authority to Regulate Animals
Who should create the law when it comes to animal welfare? When it comes to agricultural policy and farming, the federal government usually presides: every 5 years, a US Farm Bill is adopted, in which SNAP (Supplemental Nutrition Assistance Program) benefits are allocated and insurance programs for farmers are designed.[19] These bills rarely include animal welfare measures, which are mostly relegated to state lawmakers. However, at the federal level the government impacts the welfare of animals in another large way: ability to regulate commerce regarding food products.
Much of this power comes from the Commerce Clause of the constitution, which gives the federal government the power to regulate activities related to interstate commerce.[20] While limited in this regard, this still leaves much of the farming industry in scope of Congressional regulation. In the fourth circuit case U.S. v. Gibert,the court was asked whether a prohibition on animal fighting, 7 U.S.C. § 2156, exceeded Congressional power as vested by the Commerce Clause. Drawing on the cases U.S. v. Morrison and U.S. v. Lopez as precedent relating to the Commerce Clause, the court held that the statute was constitutional because “animal fighting ventures are inherently commercial enterprises that often involve substantial interstate activity,” due in large part to the mass operations of breeding by the game fowl industry that generate billions of dollars each year.[21] Drawing upon U.S. v Gilbert, it is easy to see that under the Commerce Clause Congress could realistically regulate many parts of industrial farming: the farming industry, especially the largest producers, must obtain feed, breed their animals, and ship food products across state lines. Even for companies that operate purely within state lines, the Wickard v. Filburn (1942) precedent further upheld in Gonzales v. Raich (2005) establishes that commercial activity that affects national markets, even when done entirely in state, is subject to Commerce Clause regulation.[22] With state food companies affecting national supply and demand for food, these activities would fall under Congressional purview.
State Authority to Regulate Animals State Governments
Historically, however, the responsibility to regulate animal welfare has mostly fallen to states due to the police powers reserved in the 10th amendment. In using their police powers, states can legislate for the health, safety, and overall well-being of state residents, limited only by state constitutions, exclusive federal powers, the Takings Clause and the federal rights delineated in the Fourteenth Amendment.[23] In interpreting the limits of police power, the Supreme Court has stated that “[p]ublic safety, public health, morality, peace and quiet, law and order. . . are some of the more conspicuous examples of the traditional application of the police power”; and that “[a]n attempt to define [police power’s] reach or trace its outer limits is fruitless.”[24] Of course, regulation cannot conflict with federal law, which preempts all state law according to the Supremacy Clause of the Constitution. While states reserve the right to legislate for the welfare of their citizens, Congress may create legislation that preempts state laws based on other grounds, for example, in the interests of interstate commerce or agricultural policy.
However, there exists a second interpretation of the federal Commerce Clause which has also been used to limit state legislation. This is referred to as the Dormant Commerce Clause, holding that the Commerce Clause’s provision allowing Congress to regulate interstate and international trade means this right is exclusive to Congress, and that even in the absence of Congressional legislation, states may not discriminate or unnecessarily burden interstate commerce.[25] However, in weighing police powers against the Dormant Commerce Clause, as must be done for state regulations affecting welfare, it isn’t always clear which should take priority. For example, in the Supreme Court case Pike v. Bruce Church, a law forcing an Arizona cantaloupe company to pack all their goods exclusively in Arizona was deemed unconstitutional by the Court because of the Dormant Commerce Clause; in its reasoning, the court decided that the interest of states should be weighed against the burden of interstate commerce: “Where the statute regulates even-handedly 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.”[26]
The absence of federal law regulating animal welfare in the farming industry and commerce could be interpreted in a way such that precludes the creation of state laws affecting farm animal welfare, which by the nature of industrial farming affect interstate commerce in one way or another. Building upon the precedent set by Pike v. Bruce Church, this argument was made in the more recent Supreme Court case involving the Dormant Commerce Clause, Pork Producers v. Ross, where pork producersattempted to strike down state animal welfare law. While federal law would be able to preempt state legislation, in its absence animal welfare laws will likely be posed a challenge by the Dormant Commerce Clause: is moral interest great enough to justify state legislation?
The Current Status of Federal Law
Should the federal government legislate on the welfare of farmed animals? While there is less historical precedent for federal legislation concerning farm animal welfare than in the states, there is also a tradition of federal legislation backed by a strong moral imperative concerning animals. Looking at existing federal animal welfare protections, there are three main statutes we can look at on this topic: the (1) Animal Welfare Act (AWA), (2) the so-called Twenty-Eight Hour Law which regulates the transportation of animals, and (3) the Humane Methods of Slaughter Act, or HMSA.
First, the Animal Welfare Act defines the word animal as: “any live or dead dog, cat, monkey (nonhuman primate mammal), guinea pig, hamster, rabbit, or such other warm-blooded animal, as the Secretary may determine is being used, or is intended for use, for research, testing, experimentation, or exhibition purposes, or as a pet but such term excludes… other farm animals, such as, but not limited to livestock or poultry, used or intended for use as food or fiber…”[27] Already, the federal legislation on animal use and cruelty separates farmed animals from other animals, leaving them without any of the protections other animals receive. What makes farm animals deserve a different level of concern than other animals? According to modern moral standards and philosophy on the subject, nothing; as one author writes, creating an “equality principle” for animal legislation would allow laws to “better meet their legislative objectives, which are broadly to prevent the unnecessary pain and suffering of animals,” because sentient animals have moral status in the framework of animal law and ethics, as Garner and other scholars have also established.[28] In creating a welfare law for animals, we recognize what kind of treatment to sentient animals is unacceptable; however, we exclude farm animals not on a moral basis but due to their function and use. Given the moral weight of the issue, expanded legislation is a necessity to align our values with law.
Next, the Twenty-Eight Hour Law prevents transport of animals for more than twenty-eight consecutive hours without feeding, water, and rest.[29] However, the “U.S Department of Agriculture interpreted this law to apply to transport by truck, but not to include poultry within the definition of livestock animals.”[30] In addition:
There are four exceptions to the law: (1) sheep may be confined for an additional eight hours when the twenty-eight hour period ends at night; (2) animals may be confined for more than twenty-eight hours when there is an accident or unavoidable circumstances; (3) animals may be confined for thirty-six consecutive hours when the owner or custodian requests in writing (separate from a bill of lading) that the period be extended; and (4) if animals have the opportunity to rest, water, and eat and have space in the carrier, they do not need to be unloaded.[31]
With these exceptions as well as the exclusion of all poultry, it isn’t hard to see why many animals die before they arrive at their destination. This doesn’t align with our ethical understanding of animal law—in fact, Garner’s framework of suffering being morally equivalent across sentient beings stands in direct contradiction to this principle. As hens, chickens, and turkeys can also feel pain, this exclusion isn’t based on any modern understanding of justice. In addition, animal confinement for upwards of thirty-six hours— in hot and cramped conditions without water— shows a total lack of regard for animal welfare, and if our pets were subjected to such treatment would likely be considered cruel and morally abhorrent.
Finally, the Humane Methods of Slaughter Act allows the USDA to set standards of animal killing, requiring stunning or unconsciousness before beginning to prepare the animal for killing “in the case of cattle, calves, horses, mules, sheep, swine, and other livestock.”[32] However, as poultry is missing from this list, some may assume that poultry would be assigned to the category “other livestock.” In the case Levine v. Vilsack, though, this principle was challenged. The court ruled that the plaintiffs had a lack of standing to sue, but more so affirmed that the USDA has the sole right to interpret the definition of “other livestock.”[33] In this way, while the HMSA is a step forward, its inherently interpretative nature leaves the enforcement of regulation to agencies. As we now consider whether birds and poultry should be entitled to the same protections in an evolving ethical debate, the need for new legislation (or updated interpretations by the USDA) grows.
Now considering relevant case law, in People for the Ethical Treatment of Animals v. United States Department of Agriculture, where PETA alleged that the USDA’s failure to institute bird animal welfare regulations violated the Administrative Procedure Act (APA), it was established that the USDA cannot be compelled to act to enforce these standards.[34] Even without the exclusion of all farm animals, securing legal protection under the AWA is extremely difficult to accomplish due to the necessity of enforcement from regulatory agencies, making animal welfare both an issue of legislation and enforcement.
Another interesting case is Cetacean Community v. Bush (2004), which established that while whales did not have standing to sue under the Endangered Species Act Marine Mammal Protection Act, National Environmental Policy Act, or the Administrative Procedure Act, Congress could expressly grant them standing.[35] Establishing legal recourse for animals by granting them legal standing in the court of law would make the enforcement of animal welfare laws more effective and allow them to more easily serve their intended purpose.
Status of State law
Farm animals and animal law more generally is usually legislated at the state level. California’s Proposition 12, one of the most extensive laws regulating farm animal treatment, was passed at the state level. A similar law in Massachusetts, titled “An Act to Prevent Cruelty to Animals,” places similar restrictions but defines cruelty as “confined so as to prevent a covered animal from lying down, standing up, fully extending the animal’s limbs, or turning around freely.”[36] Both California’s new regulations and Massachusetts’s act began as ballot measures which were passed with popular support within their respective states. However, other states’ regulations are either insufficient or completely nonexistent: Texas, one of the largest states and a massive producer of farmed animals, prohibits “unreasonably” denying animals food and water and defines cruelty as “a manner that causes or permits unjustified or unwarranted pain or suffering.”[37] However, this is far more abstract than both California’s and Massachusetts’s law and sets a higher burden of proof for animal cruelty, with denial of food and water being held separate from animal torture as well in Texas Court of Appeals case State of Texas v. Patrick Scott Kingsbury.[38] Alabama’s animal cruelty laws have a different focus altogether: enacted in 1975, Alabama statute states that “in order to prevent injury to animals in livestock markets and in transit and to prevent unnecessary abuse and cruelty to animals with resultant loss of profit from the slaughter and sale of such animals, it shall be unlawful in this state to handle or transport such animals in any manner not consistent with humane methods of treatment to such extent as is reasonably possible…”[39] This statue frames animal cruelty in terms of profit, operating on a completely different legal philosophy than the regulations we have seen in other states. In addition, requiring methods of treatment to be humane to a “reasonably possible” extent sets such a high bar for proving cruelty that almost any practice could be attributed to standard practice for industrial farming or necessity. Indeed, there have been no significant judicial verdicts made on the basis of this piece of legislation in the history of its existence, and certainly none that have led to greater animal protection.[40] Indeed, the focus of preserving profit as opposed to eradicating suffering goes against the principles we hold today when creating animal law: Garner writes that “eradicating the suffering of animals is the goal… As a matter of justice, too, this goal should be an obligation of the state.”[41] Clearly, Alabama’s laws, and those of many other states, fall short of this standard; even without the goal of completely eradicating animal suffering, these laws make little meaningful attempt to minimize it.
Due to the increased legislation surrounding the treatment of farm animals, the amount of case law surrounding the topic has also increased. Several of the attempts by states to regulate farm animals have been met with resistance: in the Massachusetts District Court case of Triumph Foods v. Campbell, pork producers contested the Massachusetts act on animal cruelty under the Dormant Commerce Clause, but the judge ruled that the act was valid except a “slaughterhouse exception” which would have allowed certain producers inspected under the Federal Meat Inspection Act (FMIA) to sell exempted pork.[42] As it stands, most of the act was upheld and the original meaning retained. California’s law was similarly challenged under the Dormant Commerce Clause, which we have seen could be used to prohibit states from legislating on interstate commerce. This time, however, in the Supreme Court case National Pork Producers v. Ross, where the pork producers alleged that the proposition “violates the U. S. Constitution by impermissibly burdening interstate commerce.”[43] However, in a 5-4 decision, Justice Gorsuch argued that:
Some out-of-state producers who choose to comply with Proposition 12 may incur new costs, while the law serves moral and health interests of some magnitude for in-state residents. In a functioning democracy, those sorts of policy choices—balancing competing, incommensurable goods—belong to the people and their elected representatives.[44]
As seen in the Tenth Amendment, the sovereign police powers of states allow them to regulate the health and safety of their communities. When in conflict with the Dormant Commerce Clause, like in Pike v. Bruce Church, the coincidental burden on interstate commerce is weighed against the interests of the state in the welfare, health, and morals of its citizens. How Gorsuch takes care in recognizing moral interests concerning animals as a valid target within the scope of state police powers here affirms that the Court believes that animal welfare is a valid public good, even when weighed against other interests such as interstate commerce. In dissent, Justices Roberts, Alito, Kavanaugh, and Jackson found issue not with the principle of California’s legislation, but California’s market power, stating that “pig farmers and pork producers have little choice but to comply with California’s regulatory dictates” as “California’s 13-percent share of the consumer pork market makes it economically infeasible for many pig farmers and pork producers to exit the California market.”[45] In delivering the judgement of the Court, Justice Gorsuch weighs the burden on commerce against the ethical value of animal welfare:
On the other hand, the law serves moral and health interests of some (disputable) magnitude for in-state residents. Some might reasonably find one set of concerns more compelling. Others might fairly disagree. How should we settle that dispute? The competing goods are incommensurable. Your guess is as good as ours. More accurately, your guess is better than ours. In a functioning democracy, policy choices like these usually belong to the people and their elected representatives.[46]
Gorsuch affirms that moral interests within the scope of state powers should be left to elected officials through the democratic process. In upholding the moral interests of animal welfare as legitimate, the Court has opened the door for greater state legislation not only on production within the state, as we have seen in the past, but also commerce and consumption in the state.
The Effectiveness of Federal vs State Legislation
Should there be legislation from the Senate, as many pork producers have requested, concerning the production of pork and other animal products?[47] In that case, the Commerce Clause could likely be invoked to strike down state legislation such as Proposition 12. Federal legislation directly addressing Proposition 12 may come even sooner than that: a new Senate Farm Bill could prohibit states from regulating agricultural products, putting at risk California’s Proposition 12.[48] However, an earlier attempt to achieve this in Congress via the Ending Agricultural Trade Suppression (EATS) Act both failed in Congress and would have been unenforceable, as it would have run afoul of the Tenth Amendment anticommandeering doctrine which forbids Congress from forcing states to either prohibit or allow the trade of goods.[49] We can see this firsthand in the language of the bill, which states that, “The government of a State or a unit of local government within a State shall not impose a standard or condition on the preharvest production of any agricultural products sold or offered for sale in interstate commerce if— (1) the production occurs in another State…”.[50] The new Senate Farm Bill attempts to be more strategic, but essentially relies on the same line of reasoning—not allowing states to regulate interstate commerce— in an attempt to preempt Proposition 12.[51] Even more recently this April, the Food Security and Farm Protection Act was introduced in Congress with the explicit aim of preventing legislation like Proposition 12: “(b) Prohibition.—The government of a State or a unit of local government within a State shall not impose a standard or condition on the preharvest production of any agricultural products sold or offered for sale in interstate commerce.”[52] Because of the Supremacy Clause, these laws would likely be upheld and revert progress in animal welfare made by state legislatures: this highlights a need for legislation at both the state and federal legislation in accordance with principles of animal justice.
Proposed Legislative Changes to Promote Ethical Animal Treatment
Some would argue that there are more important issues that need to be tackled first, or that human interest outweighs animal interest and can be used to excuse animal suffering. Garner focuses on this line of reasoning, saying that while humans and animals are not morally equivalent and some human interests are elevated above animal interests, not all animal interests are inferior. In particular, he argues that “suffering of the same intensity and duration has the same moral weight whether endured by humans or animals,” a high bar to reach from a legal perspective.[53] While people and policymakers may disagree on this principle, it can be established that animals have the right to avoid suffering as sentient beings under a principle of justice. In recognizing existing legislation as an affirmation of our values of justice, key goals in animal law should be expanding the Animal Welfare Act (AWA) to include farm animals, including poultry in existing USDA regulations, and passing more legislation, federal and state, surrounding the issue. However, moral reasons aren’t the only justification for animal welfare legislation: for example, laws regulating the amount of space animals have can reduce the likelihood of disease transmission, while laws like the Twenty-Eight Hour Law could reduce the chances an animal dies during transportation, an economic loss that could fall under Commerce Clause legislation. In pursuing animal welfare goals, states and Congress could name many legitimate aims regarding human welfare, commerce, and health in creating animal welfare laws.
In conclusion, standards surrounding animal welfare have moved quickly, and advances in the legal framework of animal law must follow. California’s Proposition 12 and similar laws have broken new ground on how states can regulate commerce and sets the moral concern of animals as a valid and important benchmark for regulation via state police powers. The Supreme Court case National Association of Pork Producers v. Ross has upheld California’s law and has affirmed this moral concern. Despite these advances, federal legislation remains woefully unequipped to deal with the moral concerns of animals as we understand them now, and these concerns can only be addressed in Congress and by the USDA. Specifically, comprehensive policy reform should include federal recognition of animal sentience and laws which prohibit animal suffering, such as EU laws recognizing the “five freedoms” of animals.[54] Recognition of animals as sentient beings and as having rights would go a long way in concrete legal action. Even though as philosophy advances the law struggles to catch up, the debate remains important, and as we continue defining what justice for animals means we continue to create and redefine laws.
[1] Hannah Ritchie, “Wild mammals make up only a few percent of the world’s mammals”, Our World in Data (December 15 2022), https://ourworldindata.org/wild-mammals-birds-biomass.
[2] Humane Ventures, “2025 U.S. Animal Kill Clock”, Animal Clock (2025), https://animalclock.org/.
[3] Animal Outlook, “Animal Transport: Torture Hidden in Plain Sight”, Animal Outlook (2021), https://animaloutlook.org/investigations/animal-transport-torture/.
[4] Suncoast Humane Society, The Role of Legislation in Protecting Animals, Suncoast Humane Society (July 15, 2024), https://humane.org/news/the-role-of-legislation-in-protecting-animals/.
[5] International Fund for Animal Welfare, “What is Animal Welfare?, International Fund for Animal Welfare (July 2, 2024), https://www.ifaw.org/journal/what-is-animal-welfare.
[6] European Commission. “Animal Welfare.” European Commission Food Safety. https://food.ec.europa.eu/animals/animal-welfare_en.
[7] Cal. Title 3, California Code of Regulations (3 CCR), §§ 1320-1326.
[8] Peter Singer, Animal Liberation Now: The Definitive Classic Renewed, Diversion Books. 70 (2024).
[9] Singer, Animal Liberation Now, 409-413.
[10] Singer, Animal Liberation Now, 273.
[11] Singer, Animal Liberation Now, 402.
[12] Garner, A Theory of Justice for Animals. 119.
[13] Garner, A Theory of Justice for Animals. 119.
[14] Robert Garner, A Theory of Justice for Animals: Animal Rights in a Nonideal World, Oxford University Press. 133 (2013).
[15] Garner, A Theory of Justice for Animals. 124, 135.
[16] Legal Information Institute, “Justice, Legal Information Institute (June 2023), https://www.law.cornell.edu/wex/justice.
[17] Hope Reese, “What Does Justice for Animals Look Like”, Greater Good Magazine (January 10, 2023), https://greatergood.berkeley.edu/article/item/what_does_justice_for_animals_look_like.
[18] Garner, A Theory of Justice for Animals. 22.
[19] National Sustainable Agriculture Coalition, “What is the Farm Bill?” (2025), https://sustainableagriculture.net/our-work/campaigns/fbcampaign/what-is-the-farm-bill/.
[20] U.S. Const. art. 1, § 8, cl. 3.
[21] United States v. Gibert, 677 F.3d 613, 625, 626 (4th Cir. 2012)
[22] Gonzales v. Raich, 545 U.S. 1, 125 S. Ct. 2195, 162 L. Ed. 2d 1 (2005)
[23] Legal Information Institute, “Police Powers”, Cornell University Law School. https://www.law.cornell.edu/wex/police_powers.
[24] Berman v. Parker, 348 U.S. 26, 32, 75 S. Ct. 98, 102, 99 L. Ed. 27 (1954)
[25] ArtI.S8.C3.7.1 Overview of Dormant Commerce Clause, Constitution Annotated, https://constitution.congress.gov/browse/essay/artI-S8-C3-7-1/ALDE_00013307/.
[26] Pike v. Bruce Church, Inc., 397 U.S. 137, 146, 90 S. Ct. 844, 849, 25 L. Ed. 2d 174 (1970).
[27] 7 U.S.C. 2131 §2132.
[28] Jane Kotzmann & Gisela Nip, Bringing Animal Protection Legislation Into Line With Its Purported Purposes: A Proposal for Equality Amongst Non-Human Animals, 37 Pace Envtl. L. Rev. 247 (2020).
[29] 49 U.S.C §80502.
[30] Sonia S. Waisman, Pamela D. Frasch, and Katherine M. Hessler, Animal Law in a Nutshell. 377 (3d ed. 2021).
[31] Michelle Pawliger & Dena Jones, Animals in Transport Languish as Twenty-Eight Hour Law Goes Off the Rails, 25 Animal L. Rev. (2018).
[32] 7 U.S.C. §§ 1901-1906.
[33] Waisman, Frasch, and Hessler, Animal Law in a Nutshell. 374.
[34] People for the Ethical Treatment of Animals v. U.S. Dep’t of Agric., 797 F.3d 1087, 1091 (D.C. Cir. 2015).
[35] Cetacean Community v. Bush, 386 F.3d 1169 (9th Cir. 2004).
[36] An Act to Prevent Cruelty to Farm Animals. Pub. Act 189-333 2016.
[37] Tex. Penal Code Ann. § 42.09.
[38] State v. Kingsbury, 129 S.W.3d 202 (Tex. App. 2004)
[39] Ala. Code § 2-15-110.
[40] Id.
[41] Garner, A Theory of Justice for Animals. 168.
[42] Triumph Foods, LLC v. Campbell, 715 F. Supp. 3d 143, 149 (D. Mass. 2024)
[43] Nat’l Pork Producers Council v. Ross, 598 U.S. 356, 143 S. Ct. 1142, 1144, 215 L. Ed. 2d 336 (2023).
[44] Nat’l Pork Producers, 598 U.S. at 1144.
[45] Id. At 1173.
[46] Nat’l Pork Producers, 598 U.S. at 1160.
[47] Id. at 1144.
[48] Farm, Food, and National Security Act of 2024, H.R. 8467, 118th Cong. § 2 (2024)
[49] Kelley McGill, Legislative Analysis of S.2019 / H.R.4417: The “Ending Agricultural Trade Suppression Act,” 3, 9-12 (2023)
[50] S.1488 – 118th Congress (2023-2024): EATS Act of 2023, S.1488, 118th Cong. § 2 (2023), https://www.congress.gov/bill/118th-congress/senate-bill/1488.
[51] Text – H.R.8467 – 118th Congress (2023-2024): Farm, Food, and National Security Act of 2024, H.R.8467, 118th Cong. § 12007 (2024), https://www.congress.gov/bill/118th-congress/house-bill/8467/text.
[52] Text – S.1326 – 119th Congress (2025-2026): Food Security and Farm Protection Act, S.1326, 119th Cong. (2025), https://www.congress.gov/bill/119th-congress/senate-bill/1326/text.
[53] Garner, A Theory of Justice for Animals. 164.
[54] European Commission. “Animal Welfare.” European Commission Food Safety. https://food.ec.europa.eu/animals/animal-welfare_en.