Sample Exam Question - Review Question 2 - Preemption Issue

The suggested time to answer this question is 45 minutes.  

Kris Kane is the owner and operator of Kane's Exotic Animal Service in New Albany, Indiana. Kane is engaged in the business of buying, raising, and selling exotic animals to customers throughout the United States. Last year Kris Kane earned $500,000 from his business. Nationwide, dealers in exotic animals generate $10,000,000 in income each year.

The Federal Animal Welfare Act regulates the transportation, purchase, sale, handling, and treatment of animals. The purpose of the Act is to foster humane treatment in the handling, care, and transportation of animals by animal dealers engaged in interstate commerce. Section 2145 of the Animal Welfare Act declares: "The Secretary of Agriculture is authorized to cooperate with officials of the various States or political subdivisions thereof in carrying out the purposes of this Act. State, and local legislation on the same subject is permissible so long as it is consistent with the provisions and purposes of this Act."

Pursuant to its authority under the Animal Welfare Act, the United States Department of Agriculture issues Class B Licenses to dealers whose business includes the purchase, sale and shipment of exotic animals in interstate commerce. An exotic animal is defined by federal law as "any animal that is not native to the United States or was introduced from abroad." This term includes lions, tigers, leopards, elephants, camels, antelopes, anteaters, and kangaroos.
 
Kris Kane is licensed by the Department of Agriculture as a Class B Licensee. As required by his federal license, Kris Kane complies with all federal regulations concerning the transportation, purchase, sale, handling, and treatment of the animals in his possession. Moreover, during the 18 years Kane has operated his business in New Albany, no person has been injured by any of the animals in his possession.      
   
In March, 2012 the Town of New Albany, Indiana passed an Animal Control Ordinance in order to protect the public's health and safety. The ordinance was enacted after a small child was critically injured as the result of being attacked by a dog. The ordinance provides:

It shall be unlawful to keep, maintain or possess within the Town of New Albany, Indiana any animal which is capable of inflicting serious physical harm or death to human beings.

As a result of the enactment of the Animal Control Ordinance, Kris Kane will no longer be able to operate his business in the Town of New Albany since many of his animals are "capable of inflicting serious physical harm or death." Kane has filed suit against New Albany challenging the ordinance's constitutionality on the ground that it is preempted by the Federal Animal Welfare Act.
   
You are a law clerk to the judge assigned to consider Kris Kane's challenge. The judge has asked you to write an analysis describing the preemption arguments that Kane can make in challenging the Animal Control Ordinance as well as the arguments that can be made by New Albany to defend against Kane’s preemption challenge.