WASHINGTON (CN) — In the fall of 2017, federal agricultural authorities took aim at a trio of horse trainers, Joe Fleming, Sam Perkins and Jarrett Bradley, accused of entering injured animals into competition for an unfair advantage.
The Horse Protection Act of 1960 imposes penalties on those who engage in the practice known as “soring,” where an irritant is used to exaggerate a horse’s gait, creating an effect called a “big lick.” It can be achieved artificially by burning a horse’s front hooves with chemical agents like mustard oil, diesel fuel, croton oil or kerosene, or tightly nailing on a shoe to cause pain when the horse puts weight on its foot.
The practice is often used to achieve higher steps during performances in Walking Horse shows, sales and auctions, which are common in Tennessee, where Fleming operates.
Both animal welfare groups and veterinary organizations have denounced the practice as unethical.
The U.S. Department of Agriculture has repeatedly come under fire from both anti-soring groups and pro-soring coalitions for opposing reasons, but they both agree on one thing: “The USDA has failed miserably at doing their job of enforcing the Horse Protection Act for the past half a century,” Marty Irby, executive director of Animal Wellness Action, said over the phone.
When the agency ruled against them, Fleming and the other trainers appealed to the D.C. Circuit. Ordering a new hearing for them Tuesday, that court ruled that the judicial officer overseeing their case was unlawfully appointed.
Chief U.S. Circuit Judge Sri Srinivasan wrote the majority opinion on behalf of a divided three-judge panel. The decision turns on recent Supreme Court precedent from the case Lucia v. SEC, which found that administrative law judges (ALJs), such as those who heard the Fleming case, are “inferior officers” under the Appointments Clause, meaning they must be installed by either the president, the head of the department or a court of law.
In a brief for the Fleming case last year, the Cato Institute argued that the three ALJs in the Agriculture Department wield “exceptional authority” among the nearly 2,000 ALJs then employed by the federal government. Cato also argued that the program’s constitutional flaws were “too interconnected to allow for half measures,” like severing the removal protections of the Agriculture Department ALJs.
“To fix everything with one order, the court would have to rewrite the stature,” Ilya Shapiro and William Yeatman wrote in that brief. “Addressing the Agriculture Department’s unconstitutional enforcement scheme is a job for lawmakers, not judges.”
Another group that filed an amicus brief on behalf of the horse trainers was the New Civil Liberties Alliance.
“When judges abdicate their power to fulfill their constitutional role as a check on the executive branch, that creates a power vacuum,” Jared McClain, a litigation counsel at NCLA, said over the phone, “shifting more power from the judiciary and making the executive branch stronger.”
In a statement Tuesday, the group highlighted a partial dissent penned Tuesday by U.S. Circuit Judge Neomi Rao, which says the court’s failure to act has trapped “petitioners in an administrative-judicial hall of mirrors… The majority allows the government to argue before the agency that constitutional questions should be left to the courts and then argue before this court that constitutional questions should be left to the agency.”
Irby considers Tuesday’s ruling another setback in the long fight against soring. “This is a very tragic decision, but it falls right in line with so many other cases that the pro-soring coalition in Tennessee have won for decades,” he said.
Animal welfare activists believe that the Horse Protection Act is improperly enforced, letting trainers implicated by the law wiggle out of trouble through technicalities.
One controversial case that comes to Irby’s mind is that of Honors, the black stallion who won the World Grand Championship in 2016. Honors was disqualified from competing several times between 2013 and 2015 when the USDA found evidence of past soring. His owners, brothers Keith and Dan McSwain, sued the USDA in 2016 by arguing that their due process had been violated, and a federal judge in Georgia ruled in their favor, paving the way for Honors’ 2016 win.
Tuesday’s decision only further muddies a long and bitter fight over the rights of horses and the rights of their trainers.
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