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|LEGAL ANALYSIS OF PAWS|
|An E-mail from Jerrold Tannenbaum, M.A., J.D.|
I think this is important enough to share - consequences be damned.
I have removed the email address of the Professor - simply because he didn't send this to us so it seems like a fair thing to do.....his name, titles and phone number are included for any of you who feel the need to see those things or verify this is the real deal.
The fancy is, as I have said before, BLESSED to have Jeff Helsdon working for us - and the DPCA is beyond blessed to be able to claim him as our own....(I'm sure Jeff's mother will be happy to hear that, eh?)
Date: Tue, 26 Jul 2005
From: Jerrold Tannenbaum
Subject: Legal Analysis of PAWS
I have read Attorney Helsdon's analysis of PAWS, which is available at www.cyberdobes.com and commend it to all of you. It is in general an excellent piece of work. There are some things that seem exaggerated, for example the statement that animal rights groups will simply choose federal judges to attempt to use PAWS to wreak havoc on breeders. The federal court system really does not work that way. But Mr. Helsdon's pain-staking analysis of the language of the statute and many of the likely problems is impressive. His recitation of past statements of the AKC and its recent pronouncements and behavior are devastating. These passages made me burning angry, and I am not even associated with the AKC.
To me the most troubling lesson that emerges from Helsdon's analysis may in fact point toward the most effective way of killing PAWS.
As Mr. Helsdon observes, some of the language in PAWS would seem to lead to results that are so bad (the end of many rescue operations, for example), that it can be argued that Congress, should it pass the statute, could not have intended such results. Other parts of PAWS are unclear or obscure. The result of these features of the bill is, as Mr. Helsdon points out, that the USDA will be compelled to tell us what the statute does and does not say, and the USDA will then be compelled to make a large number of discretionary decisions regarding what regulations would reasonably further the aims of PAWS as the USDA understands these aims.
The important legal principle underlying all of this (on which the appellate court in the DDAL case rested its decision) is that when a statute is unclear, the courts will defer to the interpretations of the government agency authorized to interpret and enforce the statute.
What Mr. Helsdon's analysis says to me is that the USDA is faced with a Herculean task of interpretation and rule-making should this deeply flawed statute pass. There are multiple problems of mere interpretation of the language of the bill. USDA will need to devote many months of time and effort just proposing interpretations. Then it will need to listen to all the affected relevant groups and parties and will undoubtedly need to consider amendments to its definitions and rules. Then will come the litigation challenging whether some of the interpretations and rules comport with the intent of Congress. Then will come the task of finding personnel to explain and enforce the regulations. A mess, and clearly one the USDA neither needs nor wants with all the work enforcing the Animal Welfare Act it must now do with its meagre budget and manpower.
In short, I am suggesting that as many of the clubs as possible, and as many as you breeders as possible, approach Mr. Helsdon and whoever may have commissioned his analysis to present Helsdon's paper to the USDA. Keep plugging away at your representatives and senators to be sure. But it seems to me that if the USDA can be convinced to tell Congress that it wants no part of this poorly written piece of legislation, this could be instrumental in getting it killed.
I don't want to minimize the fact that some of the language of PAWS is clear enough, and will clearly have bad effects. However, it looks as if some of our legislators aren't really keen on reading the bill and considering its implications: they appear to be satisfied with the warm and self-congratulatory feelings of good intentions many of them enjoy so much. They may need to be brought back to reality by the agency on which this large pile of legal detritus would be dumped.
Jerrold Tannenbaum, M.A., J.D.
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