Foie gras and freedom

Foie gras is a fancy food delicacy, and until a few days ago, it was also an outlaw product in the State of California. A federal judge in Los Angeles–our childhood hometown, by the way–recently issued a judicial order enjoining (i.e. prohibiting) California public officials from enforcing a law criminalizing the sale of foie gras in the Golden State. In summary, since the sale of foie gras is legal under various federal laws, the judge ruled that local laws prohibiting the sale of foie gras are “pre-empted” (i.e. displaced) by such federal laws. But was this the “right” result as a matter of law, or an unauthorized assertion of federal judicial power? Specifically, what is the source of a federal judge’s power to veto a State law?

We taught constitutional law from 1998 to 2013, so for what it’s worth (which is probably not much), here is our take on this ruling. While we most definitely agree with the result, we are troubled by the assertion of federal judicial power in this controversy. A federal judge, in effect, vetoed a State law–a stupid and misguided State law to be sure, but a law nonetheless. The bottom line here is that the plaintiffs were unable to get this law repealed democratically, so they had to resort to asking an unelected and unaccountable federal judge to do the dirty work of repealing this stupid law for them. We think judges should not interfere with politics in cases like these. Once our elected representatives have voted, judges should avoid the political fray. Otherwise, why hold elections? Don’t get us wrong. We don’t like paternalistic, do-gooder prohibitions like the one in this case, but it was not unconstitutional …

About F. E. Guerra-Pujol

When I’m not blogging, I am a business law professor at the University of Central Florida.
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