Animal Cruelty as Commerce: Is that possible?

            In recent news, the White House signed a federal law that makes animal cruelty in “interstate commerce” a felony. 

            I began by asking, how could this be commerce for purposes of Commerce Clause jurisprudence? The biggest concern was whether this kind of law could be squared with United States v. Morrison (The Court found unconstitutional a law that provided a federal right of action for violence against women as a violation of Commerce Clause authority because the law abrogated state police powers and there was already a state right of action) and United States v. Lopez (The Court found unconstitutional a recitation of Commerce Clause authority in limiting gun ownership within 1,000 feet of school on the grounds that the activity did not “substantially effect commerce.”). The Court, though in dicta, recognized that a mere recitation of the Commerce Clause authority was not enough to ignite constitutionality in the law. Yet, they did not clarify this further. Which brings me to another question, is animal cruelty a felony criminal act only where the animal is bought, sold, or transported across state lines? and if so, does the buying, selling, and distributing of these animals have to raise a substantial commercial revenue? If animal cruelty has a substantial affect, which I have not seen numbers on this, then we could see it being squared with Lopez. A concern comes in at the state enforcement level. 

            We can all agree that animal cruelty is a gross and malicious problem, you will know this all too well if you have ever watched serial killer documentaries. But, a broad and expansive reading of the Commerce Clause opens doors to regulations by Congress that are not inherently commercial and would fail on other constitutional principles. Brings me to the question, if we allow for recitation of Commerce Clause authority, and the law would likely fail on other constitutional grounds, could we see the federal government balloon? 

            We have seen Justice Kavanaugh touch on the reinstatement of the nondelegation doctrine. Could broad Commerce Clause authority off-set a shrinking executive and administrative state? I do not see the Court striking this down (maybe they won’t even review it!), but it’s going to interesting whether they limit the recitation language in statutes that are similar.