Ernest Hemingway slept here. Now they do; descendants of
Hemingway’s six-toed cats. The Hemingway Home is dedicated
to preserving the legacy of author Ernest
Hemingway, and of his cats. In Key West, anything goes.
Chickens need no reason to cross the road. Nor
a license for that matter. But when the federal Department
of Agriculture got wind of the museum’s cats, it dictated
how they should be cared for. The museum challenged it on
commerce clause grounds and said these cats are marooned at the
very southern tip of Florida, will never cross a state line
and furthermore, they were not bought or sold,
they were merely born. To the Framers, commerce meant I
send something to you in Boston when I’m in New York. That was interstate commerce of
the kind that could be regulated. When two people in the same
state traded something, that was not interstate commerce, and
therefore could not be federally regulated. That was the
intention of the Framers. The Framers didn’t design an
almighty federal government that could reach down right into
your back yard – or barnyard. During World War II, there was
a farmer who grew grain, and he fed that grain to
his own animals. And the federal government
had a program at the time that dictated how much wheat farmers
could grow on their own land. And he said, hey,
that’s not constitutional. Why? Because I’m not engaged
in interstate commerce. But in Wickard versus Filburn, the highest
court in the land thought otherwise. And in a convoluted analysis,
the Supreme Court declared that because that wheat would not be
used in interstate commerce, it still impacted interstate commerce
through some type of displacement. So they’re taking the commerce
clause and stretching it like a rubber band to apply to any
kind of business when it was originally meant just to be for
cross-border commerce like it says. I agree, but some
scholars disagree. In their view, there’s little if
anything beyond the regulatory authority of the
federal government. In an economy like ours, things
really are interconnected and what goes on, on one farmer’s farm really
does affect what happens elsewhere. And so when the Supreme Court
says the interstate commerce clause gives Congress the power
to regulate things that seem awfully local, it’s not just
engaging in some kind of trap to expand federal power. It’s
recognizing an economic reality. If the test under the commerce
clause becomes, “Does it affect commerce?” then everything
affects commerce whether you do something or don’t do something. Well, once you have the
power over anything that affects commerce amongst the states, then you
basically have the power over everything. Everything?
Even Hemingway’s cats? The Eleventh Circuit Court of
Appeals, and I kid you not, said that because the museum features
these cats on its website and has cat-related merchandise
in its gift shop that is a substantial connection to
interstate commerce and that opens the door for the federal
government to come in and exert control. I’m not making that up.

Hemingway’s Cats
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