Dear David:
The horse shows in Middle Tennessee over the July 4 weekend which I attended were truly outstanding. The shows were well attended, the horses were superbly conditioned and presented and, most importantly, the federal government was not present to arbitrarily disrupt this great American tradition of horse shows.
Of course, the 4th of July is more than horse shows or other activities which we participate in to celebrate our independence. Fundamentally, it is the celebration of our independence from oppressive government, whether it be from King George III of England or the U.S. Department of Agriculture. The time has arrived in the walking horse community’s relationship with the USDA to declare our independence from this oppressive administration of the Horse Protection Act and chart our own future destiny under different regulatory arrangements.
The foundation for this belief stems from the oral argument in my appeal from a soring charge against me at the Sixth Circuit Court of Appeals in Cincinnati on June 21, 2002. The facts in the case against me were very straight forward. The alleged violation occurred at the Trainers’ Show in 1998. Charles Thomas, in his official capacity as a steward of the National Horse Show Commission, checked my horse while the horse was ridden with action devices and concluded the horse was not sure. He so testified at the administrative hearing conducted by the USDA. Two federal veterinarians palpated my horse 15 minutes after this test for soreness by Charles Thomas and concluded and testified that, in their opinion, the horse was sore. The Administrative Law Judge would not accept Charles Thomas’ testimony that the horse was not sore because he did not palpate the horse’s feet.
At the Appeals Court, I cited those cases in the Fifth Circuit Court of Appeals in which that Court has ruled in two successive cases five years apart that palpation is not a reliable indicator of soreness. In light of this, the Sixth Court panel questioned the USDA attorney extensively to justify their reliance on palpation alone as the proper test for determining sore horses. The best the USDA attorney could say to the Court was that palpation is a common medical technique which has been used for many years by medical doctors, explaining that is a doctor palpated your hand and it was sore that you would move your hand. In rebuttal on this point, I pointed out to the Court the fallacy of using a medical technique designed for diagnosis of human conditions and its inappropriateness for use on animals. My illustration to point out the fallacy of the USDA’s position is that if you pick up the foot of an unbroken horse to palpate its foot, this would be roughly equivalent to grabbing the testicles of a gorilla - the results would be highly unpredictable. And, this unpredictability of an animal to the palpation technique is the fundamental problem.
I doubt that you could ever break a gorilla to stand perfectly still while you palpated his testicles and I do not believe you can break a horse to be 100% predictable when you palpate his feet. Furthermore, even if a horse could be broke to this degree, it would not be desirable, for as Harper Lee correctly told us, it’s a sin to kill a mockingbird.
I presented to the Court my arguments for the unconstitutionality of the Horse Protection Act. My arguments were based on the two recent U.S. Supreme Court cases - the Lopez case and the Morrison case. In the Lopez case, Congress passed a law making it illegal to possess a firearm within 1000 yards of a school. In the Morrison case, Congress provided a federal civil remedy for rape. In both of these cases, Congress simply federalized conduct that was already a crime under state laws. The Horse Protection Act is yet another example of federalizing an activity that was already regulated by the states. The Supreme Court in these two cases reviewed the entire history of the Commerce Clause and concluded that the proper test is whether the regulated activity has a “substantial impact” on commerce. I presented to the Court that for the sake of argument we would assume that every possible argument that the government could make was true - namely, that a sore horse has a competitive advantage and that if the sore horses that the government ticketed in the year applicable to my case has been allowed to be shown and won - this still would not meet the Supreme Court’s test of a “substantial impact” on commerce.
The most that could be said would be that somebody might have gotten a red ribbon or a yellow ribbon when they might have gotten a blue. But, this condition does not have a “substantial impact” on commerce. The logical conclusion of the government’s argument is that those horses that were ticketed and not allowed to show were more valuable than those horses that did show and won their classes - a truly ludicrous proposition.
The USDA’s argument was that the horse industry in the United States - aggregating all breeds - has a total economic impact of millions of dollars. The government made the same argument in the Lopez case, aggregating the total economic impact of all crimes committed using firearms. In the Morrison case, the government did the same thing, showing the aggregated economic effect of rape. The U.S. Supreme Court rejected both of these schemes. The Court said that the test is not the aggregated economic effect of some activity, but whether the “regulated activity has a direct and substantial impact on commerce.” In the case before the Sixth Circuit, there is no question but that the regulated activity is the showing of an alleged sore horse.