Dog Clubs+Hobbyists Fight Back on APHIS

It was bound to happen eventually……. the dog clubs have decided they are tired of HSUS pushing them around, while we all know a former HSUS attorney is pretty high up there in APHIS now………not to mention a host of other political nonsense that has long gone on with HSUS………in fact it appears that HSUS is now using the ASPCA in a cloaked fashion, by having ASPCA advertise about humane chickens.

Site talking about the legal action (APHIS) that will eventually go forward

and then K. Kraemer (we call her KK for short) says:                 

“The Total Cost of the APHIS Anti-Pet Regulations exceed well over $1 Billion directly from those home-hobby breeders that will now fall under Commercial Regulations.  This is almost half of the income produced by live animal sales. Their choices:  Either comply with the regulations that will cost at a minimum a room addition to their homes with commercial appliances.  Where do you buy commercial appliances for a “commercial kennel” for the home?   The Hunte Corporation who whole-heartedly supports this USDA/APHIS Anti-Pet Regulation!

Q: Who stands to benefit from all of this “legislation?”

A: Government, one of the largest distributors of puppies to pet stores, Andrew Hunte of the Hunte Corporation (a member of PIJAC-pet product/lobbying organization), HSUS, ASPCA, and the American Kennel Club.  A reduction in the amount of breeders increases puppy prices for distributors/breeders who already have a USDA “license”, increases puppy prices for those that have fewer than four animals, and increases the amount of tax the government can take out of your paycheck.  Andrew Hunte of the Hunte Corporation has been working to “license” every single individual who sells a puppy.  A formal comment from the Hunte Corp.  to USDA/APHIS concerning the “retail pet store”/Anti-Pet regulations encouraging the passage of this regulation. “AndrewHunte -Hunte Corporation: “ We believe if you breed, transport, or sell puppies across America – especially over the Internet –, you should be regulated, and subject to inspection.” IMO, this is an example of price fixing, monopolizing through legislation/regulations, and forcing individuals to buy materials manufactured and sold by Andrew Hunte’s Corporation that they do not need.  The American Kennel Club is a huge pet product seller at PetCo and other retail store outlets.  The Sherman Act-Anti Trust issues.

The word “breed” will usually bring to mind many dogs with many litters.  This is not true in this case.  Your son has 1 female hamster, your daughter a couple of female cats, a pet milk cow, and your husband has one female dog and “transports” one puppy to be considered a COMMERCIAL BREEDER.

Kimberly Kraemer

P.S. I am all for pet stores.  Love them.  But, I do not agree with anyone that works to promote the removal of pets from family homes. ”


PD:  OK— now, now, now……. We feel ya KK…….

Let’s  look for just a FEW seconds, though,  shall we— at how the “Hunte” Corporation and Petland pretty much managed to take out HSUS in Arizona on RICO charges as to these animals sold?  That was several years back. No hobbyists really cared because they hate commercial kennels. Let’s just call a spade a spade.  Pet Defense on the other hand, has long held that most hobbyists are elitist, if only because they DO think they are superior– since they DO work to purportedly better the breed, and YES they usually only support purebred dogs and the raising of such dogs.  So theory wise, any other type of breeder is appalling to most of them. Commercial kennels included.

What everyone forgets?  show dogs make up at best, probably 2% of owned dogs. That likely means 98%– yes 98% of owned dogs are not show dogs, are not prima donnas, are not competition, are not show winners, are not champed out, are not $5,000 and are not coveted as such.  We are certainly not against show dogs, or show dog people, or show dog competition.

However, for anyone who has dealt with dog fanciers, one will realize they are in a category by themselves.  They claim they don’t make any money off the dogs but it’s just to better the breed.  That’s fine.  They claim most other breeders don’t know what they are doing, and in some respects, that’s likely true. But when 98% of owned animals or dogs are pretty much NOT show animals, who cares exactly how great they are if they have homes and the owners like them?

Which brings us to Hunte. We surely cannot find fault with Hunte, after all this is the United States, and the industry for the Hunte  related animals are in fact, highly regulated in the State of California, and under APHIS.  The fact that people use the Internet has nothing to do with Hunte.  People either follow rules or they don’t.  Don’t blame a big corporation who works with PIJAC for everything.  After all AKC didn’t care about Petland until the hobbyists had a fit, right?  Hobbyists might win the injunction, which if  the promulgation was errant, then yes they should show irreparable harm if they have it.  Dog clubs and dog shows with AKC are their own little world, having their own booklets, regulations, and long winded process for setting up large dog shows up to 2 yr in advance of shows. Yes, yes, yes, it’s a huge money pit to show dogs.  What we think– is that hobbyists tend to box themselves in by maintaining that show dog mentality at all costs. This tends to make them somewhat unrealistic when compared to the average joe homeowner dog owner.

Don’t forget 98% of owners just own plain dogs. Not show dogs. Just saying.

PS  We are aware of Sherman anti trust, and California Cartright Act, horizontal and vertical and boycott etc.  If those charges are named, then it remains to be seen how a court will view such assertions. It may be that the APHIS regs tend to contravene the states’ rights which usually govern local dog/pet laws. Or did APHIS “really” intend to preempt the field of selling pets or animals? Online? Really?!


Federal Regulations Affecting State Activities and Instrumentalities.—Since the mid–1970s, the Court has been closely divided over whether the Tenth Amendment or related constitutional doctrine constrains  congressional authority to subject state activities and instrumentalities to generally applicable requirements enacted pursuant to the commerce power.45 Under Garcia v. San Antonio Metropolitan Transit Authority,46 the Court’s most recent ruling directly on point, the Tenth Amendment imposes practically no judicially enforceable limit on generally applicable federal legislation, and states must look to the political process for redress. Garcia, however, like National League of Cities v. Usery,47the case it overruled, was a 5–4 decision, and there are recent indications that the Court may be ready to resurrect some form of Tenth Amendment constraint on Congress.

In National League of Cities v. Usery, the Court conceded that the legislation under attack, which regulated the wages and hours[p.1515]of certain state and local governmental employees, was “undoubtedly within the scope of the Commerce Clause,48 but it cautioned that “there are attributes of sovereignty attaching to every state government which may not be impaired by Congress, not because Congress may lack an affirmative grant of legislative authority to reach the matter, but because the Constitution prohibits it from exercising the authority in that manner.”49

The Court approached but did not reach the conclusion that the Tenth Amendment was the prohibition here, not that it directly interdicted federal power because power which is delegated is not reserved, but that it implicitly embodied a policy against impairing the States’ integrity or ability to function.50 But, in the end, the Court held that the legislation was invalid, not because it violated a prohibition found in the Tenth Amendment or elsewhere, but because the law was “not within the authority granted Congress.”51 In subsequent cases applying or distinguishing National League of Cities, the Court and dissenters wrote as if the Tenth Amendment was the prohibition.52 Whatever the source of the constraint, it was held not to limit the exercise of power under the Reconstruction Amendments.53

The Court overruled National League of Cities in Garcia v. San Antonio Metropolitan Transit Auth.54 Justice Blackmun’s opinion for the Court in Garcia concluded that the National League of Cities test for “integral operations in areas of traditional governmental functions” had proven “both impractical and doctrinally barren,” and that the Court in 1976 had “tried to repair what did not need repair.”55 With only passing reference to the Tenth Amendment the Court nonetheless clearly reverted to the Madisonian view of the Amendment reflected in Unites States v. Darby.56 States retain a significant amount of sovereign authority[p.1516]“only to the extent that the Constitution has not divested them of their original powers and transferred those powers to the Federal Government.”57

The principal restraints on congressional exercise of the Commerce power are to be found not in the Tenth Amendment or in the Commerce Clause itself, but in the structure of the Federal Government and in the political processes.58

“Freestanding conceptions of state sovereignty” such as the National League of Cities test subvert the federal system by “invit[ing] an unelected federal judiciary to make decisions about which state policies it favors and which ones it dislikes.”59 While continuing to recognize that “Congress’ authority under the Commerce Clause must reflect [the] position . . . that the States occupy a special and specific position in our constitutional system,” the Court held that application of Fair Labor Standards Act minimum wage and overtime provisions to state employment does not require identification of these “affirmative limits.”60

In sum, the Court in Garcia seems to have said that most but not necessarily all disputes over the effects on state sovereignty of federal commerce power legislation are to be considered political questions. What it would take for legislation to so threaten the “special and specific position” that states occupy in the constitutional system as to require judicial rather than political resolution was not delineated.

The first indication was that it would take a very unusual case indeed. In South Carolina v. Baker the Court expansively interpreted Garcia as meaning that there must be an allegation of “some extraordinary defects in the national political process” before the Court will apply substantive judicial review standards to claims that Congress has regulated state activities in violation of the Tenth Amendment.61

A claim that Congress acted on incomplete information would not suffice, the Court noting that South Carolina had “not even alleged that it was deprived of any right to participate in the national political process or that it was singled out in a way that left it politically isolated and powerless.”62 Thus, the general rule was that “limits on Congress’ authority to regulate[p.1517]state activities . . . are structural, not substantive—i.e., that States must find their protection from congressional regulation through the national political process, not through judicially defined spheres of unregulable state activity.”63

Later indications are that the Court may be looking for ways to back off from Garcia. One device is to apply a “clear statement” rule requiring unambiguous statement of congressional intent to displace state authority. After noting the serious constitutional issues that would be raised by interpreting the Age Discrimination in Employment Act to apply to appointed state judges, the Court in Gregory v. Ashcroft64 explained that, because Garcia “constrained” consideration of “the limits that the state–federal balance places on Congress’ powers,” a plain statement rule was all the more necessary. “[I]nasmuch as this Court in Garcia has left primarily to the political process the protection of the States against intrusive exercises of Congress’ Commerce Clause powers, we must be absolutely certain that Congress intended such an exercise.”

The Court’s 1992 decision in New York v. United States,65 may portend a more direct retreat from Garcia. The holding in New York, that Congress may not “commandeer” state regulatory processes by ordering states to enact or administer a federal regulatory program, applied a limitation on congressional power previously recognized in dictum66 and in no way inconsistent with the holding in Garcia. Language in the opinion, however, sounds more reminiscent of National League of Cities than of Garcia.

First, the Court’s opinion by Justice O’Connor declares that it makes no difference whether federalism constraints derive from limitations inherent in the Tenth Amendment, or instead from the absence of power delegated to Congress under Article I; “the Tenth Amendment thus directs us to determine . . . whether an incident of state sovereignty is protected by a limitation on an Article I power.”67 Second, the[p.1518]Court, without reference to Garcia, thoroughly repudiated Garcia’s “structural” approach requiring states to look primarily to the political processes for protection.

In rejecting arguments that New York’s sovereignty could not have been infringed because its representatives had participated in developing the compromise legislation and had consented to its enactment, the Court declared that “[t]he Constitution does not protect the sovereignty of States for the benefit of the States or State governments, [but instead] for the protection of individuals.” Consequently, “State officials cannot consent to the enlargement of the powers of Congress beyond those enumerated in the Constitution.”68The stage appears to be set, therefore, for some relaxation of Garcia’s obstacles to federalism–based challenges to legislation enacted pursuant to the commerce power.

Supplement: [P. 1518, add new paragraphs at end of section:]

Extending the principle applied in New York, the Court in Printz v. United States5 held that Congress may not “circumvent” the prohibition on commandeering a state’s regulatory processes “by conscripting the State’s officers directly.” 6Struck down in Printz were interim provisions of the Brady Handgun Violence Protection Act that required state and local law enforcement officers to conduct background checks on prospective handgun purchasers. “The Federal Government may neither issue directives requiring the States to address particular problems, nor command the States’ officers . . . to administer or enforce a federal regulatory program. It matters not whether policymaking is involved, and no case–by–case weighing of the burdens or benefits is necessary; such commands are fundamentally incompatible with our constitutional system of dual sovereignty.” 7

In Reno v. Condon,8 the Court distinguished New York and Printz in upholding the Driver’s Privacy Protection Act of 1994 (DPPA), a federal law that restricts the disclosure and resale of personal information contained in the records of state motor vehicles departments. The Court returned to a principle articulated in South Carolina v. Baker that distinguishes between laws which improperly seek to control the manner in which States regulate private parties, and those which merely regulate state activities directly.9 Here, the Court found that the DPPA “does not require the States in their sovereign capacities to regulate their own citizens,” but rather “regulates the States as the owners of databases.” 10 The Court saw no need to decide whether a federal law may regulate the states exclusively, since the DPPA is a law of general applicability that regulates private resellers of information as well as states.11


1 United States v. Sprague, 282 U.S. 716733 (1931) .

2 United States v. Darby, 312 U.S. 100124 (1941) . “While the Tenth Amendment has been characterized as a ‘truism,” stating merely that ‘all is retained which has not been surrendered,’ [citing Darby], it is not without significance. The Amendment expressly declares the constitutional policy that Congress may not exercise power in a fashion that impairs the States’ integrity or their ability to function effectively in a federal system.” Fry v. United States, 421 U.S. 542547 n.7 (1975) . This policy was effectuated, at least for a time, in National League of Cities v. Usery, 426 U.S. 833(1976) .

3 Annals of Congress 767–68 (1789) (defeated in House 17 to 32); 2 B. Schwartz, The Bill of Rights: A Documentary History 1150–51 (1971) (defeated in Senate by unrecorded vote).

4 2 Annals of Congress 1897 (1791).

5 17 U.S. (4 Wheat.) 316 (1819).

6 Supra, pp.339–44.

7 McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 372 (1819) (argument of counsel).

8 Id. at 406. “From the beginning and for many years the amendment has been construed as not depriving the national government of authority to resort to all means for the exercise of a granted power which are appropriate and plainly adapted to the permitted end.” United States v. Darby, 312 U.S. 100124 (1941) .

9 78 U.S. (11 Wall.) 113 (1871).

10 Id. at 124.

11 Graves v. New York ex rel. O’Keefe, 306S 466 (1939). The Internal Revenue Service is authorized to sue a state auditor personally and recover from him an amount equal to the accrued salaries which, after having been served with notice of levy, he paid to state employees delinquent in their federal income tax. Sims v. United States, 359 U.S. 108 (1959) .

12 326 U.S. 572 (1946) .

13 Id. at 589.

14 Id. at 584.

15 Id. at 595. Most recently, the issue was canvassed, but inconclusively, in Massachusetts v. United States, 435 U.S. 444 (1978) .

16 United States v. Dewitt, 76 U.S. (9 Wall.) 41 (1870).

17 Id. at 44.

18 207 U.S. 463 (1908) . See also Keller v. United States, 213 U.S. 138 (1909) .

19 247 U.S. 251 (1918) .

20 312 U.S. 100 (1941) .

21 Child Labor Tax Case, 259 U.S. 202638 (1922) .

22 Hill v. Wallace, 259 U.S. 44 (1922) . See also Trusler v. Crooks, 269 U.S. 475 (1926) .

23 Carter v. Carter Coal Co., 298 U.S. 238 (1936) .

24 United States v. Butler, 297 U.S. 1 (1936) .

25 295 U.S. 495 (1935) .

26 Id. at 529.

27 Steward Machine Co. v. Davis, 301 U.S. 548 (1937) ; Helvering v. Davis, 301 U.S. 619 (1937) .

28 NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1 (1937) .

29 312 U.S. 100 (1941) . See also United States v. Carolene Products Co., 304 U.S. 144147(1938) ; Case v. Bowles, 327 U.S. 92101 (1946) .

30 312 U.S. 100114123124 (1941) . See also Fernandez v. Wiener, 326 U.S. 340362 (1945) .

31 251 U.S. 146 (1919) .

32 Id. at 156.

33 Lottery Case (Champion v. Ames), 188 U.S. 321 (1903) .

34 Hoke v. United States, 227 U.S. 308 (1913) .

35 Brooks v. United States, 267 U.S. 432 (1925) .

36 Thornton v. United States, 271 U.S. 414 (1926) .

37 Roth v. United States, 354 U.S. 476 (1957) .

38 United States v. Ferger, 250 U.S. 199 (1919) .

39 Kentucky Whip & Collar Co. v. Illinois C. R.R., 299 U.S. 334 (1937) .

40 Everard’s Breweries v. Day, 265 U.S. 545 (1924) .

41 Perez v. United States, 402 U.S. 146 (1971) .

42 Hodel v. Virginia Surface Mining & Recl. Ass’n, 452 U.S. 264 (1981) .

43 296 U.S. 287 (1935) . The Civil Rights Act of 1875, which made it a crime for one person to deprive another of equal accommodations at inns, theaters or public conveyances was found to exceed the powers conferred on Congress by the Thirteenth and Fourteenth Amendments and hence to be an unlawful invasion of the powers reserved to the States by the Tenth Amendment. Civil Rights Cases, 109 U.S. 315 (1883) . Congress has now accomplished this end under its commerce powers, Heart of Atlanta Motel v. United States, 379 U.S. 241 (1964) ; Katzenbach v. McClung, 379 U.S. 294 (1964) , but it is clear that the rationale of the Civil Rights Cases has been greatly modified if not severely impaired. Cf. Jones v. Alfred H. Mayer Co., 392 U.S. 409 (1968) (13th Amendment); Griffin v. Breckenridge, 403 U.S. 88 (1971) (13th Amendment); United States v. Guest, 383 U.S. 745 (1966) (14th Amendment).

44 United States v. Kahriger, 345 U.S. 2225–26 (1953) ; Lewis v. United States, 348 U.S. 419(1955) .

45 The matter is discussed more fully supra, pp.922–30.

46 469 U.S. 528 (1985) .

47 426 U.S. 833 (1976) .

48 Id. at 841.

49 Id. at 845.

50 Id. at 843.

51 Id. at 852.

52 E.g., FERC v. Mississippi, 456 U.S. 742771 (1982) (Justice Powell dissenting); id. at 775 (Justice O’Connor dissenting); EEOC v. Wyoming, 460 U.S. 226 (1983) . The EEOC Court distinguished National League of Cities, holding that application of the Age Discrimination in Employment Act to state fish and game wardens did not directly impair the state’s ability to structure integral operations in areas of traditional governmental function, since the state remained free to assess each warden’s fitness on an individualized basis and retire those found unfit for the job.

53 Fitzpatrick v. Bitzer, 427 U.S. 445 (1976) ; City of Rome v. United States, 446 U.S. 156(1980) ; Fullilove v. Klutznick, 448 U.S. 448476–78 (1980) (plurality opinion of Chief Justice Burger).

54 469 U.S. 528 (1985) . The issue was again decided by a 5 to 4 vote, Justice Blackmun’s qualified acceptance of the National League of Cities approach having changed to complete rejection.

55 Id. at 557.

56 312 U.S. 100124 (1941) , supra p.1509; Madison’s views were quoted by the Court in Garcia, 469U.S. at 549 469U.S. at 549.

57 469U.S. at 549 469U.S. at 549.

58 “Apart from the limitation on federal authority inherent in the delegated nature of Congress’ Article I powers, the principal means chosen by the Framers to ensure the role of the States in the federal system lies in the structure of the Federal Government itself.” 469U.S. at 550 469U.S. at 550. The Court cited the role of states in selecting the President, and the equal representation of states in the Senate. Id. at 551.

59 469U.S. at 550, 546 469U.S. at 550, 546.

60 469U.S. at 556 469U.S. at 556.

61 485 U.S. 505512 (1988) . Justice Scalia, in a separate concurring opinion, objected to this language as departing from the Court’s assertion in Garcia that the “constitutional structure” imposes some affirmative limits on congressional action. Id. at 528.

62 Id. at 513.

63 Id. at 512.

64 501 U.S. 452464 (1991) . The Court left no doubt that it considered the constitutional issue serious. “[T]he authority of the people of the States to determine the qualifications of their most important government officials . . . is an authority that lies at ‘the heart of representative government’ [and] is a power reserved to the States under the Tenth Amendment and guaranteed them by [the Guarantee Clause].” Id. at 463. In the latter context the Court’s opinion by Justice O’Connor cited Merritt, The Guarantee Clause and State Autonomy: Federalism for a Third Century, 88 Colum. L. Rev. 1 (1988). See also McConnell, Federalism: Evaluating the Founders’ Design, 54 Chi. L. Rev. 1484 (1987) (also cited by the Court); and Van Alystyne, The Second Death of Federalism, 83 L. Rev. 1709 (1985).

65 112 Ct. 2408 (1992).

66 See, e.g., Hodel v. Virginia Surface Mining & Recl. Ass’n, 452 U.S. 264288 (1981) ; FERC v. Mississippi, 456 U.S. 742765 (1982) ; South Carolina v. Baker, 485 U.S. 505513–15 (1988) .

67 112 S. Ct. at 2418.

68 Id. at 2431–32.

Supplement Footnotes

1 514 U.S. 549 (1995) .

2 514 U.S. at 552, 567–68 (1995).

3 120 S. Ct. 1740 (2000).

4 120 S. Ct. at 1754.

5 521 U.S. 898 (1997) .

6 521 U.S. at 935.

7 Id.

8 120 S. Ct. 666 (2000).

9 484 U.S. 505514–15 (1988) .

10 120 S. Ct. at 672.

11 Id.

Tenth Amendment — Table of Contents

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