Ch. 14— State Regulation of Animal Use • 311 
veterinary care in research involving intentional 
injury to the research subjects. The court’s opin- 
ion did not fully address this issue. Third, the 
court relied heavily on its presumption that the 
General Assembly of Maryland had been aware 
of the Federal Animal Welfare Act when it last 
amended the statute, 8 years earlier. Many of the 
two dozen or so general anticruelty laws that 
contain no research exemption have not been 
amended since the 1966 passage of the Animal 
Welfare Act. 
The Preemption Question 
The Taub decision is also relevant to the ques- 
tion of research coverage by general anticruelty 
statutes because of what the case did not decide. 
On appeal, Taub asserted that his conviction was 
invalid for five main reasons, three of which ad- 
dressed themselves to actions occurring in or 
taken by the trial court (sufficiency of evidence, 
permitting medical experts to define the term 
"veterinary care," and denial of a fair trial due 
to introduction of evidence of Nero’s physical con- 
dition more than a month after he had been seized). 
But Taub also contended that the Maryland stat- 
ute was unconstitutionally vague, because the def- 
inition of "animal’’ was excessively broad and be- 
cause it was unclear as to what was "the most 
humane method reasonably available’’ and what 
were included or excluded from “normal human 
activities to which the infliction of pain to an ani- 
mal is purely incidental and unavoidable." In addi- 
tion, he claimed that his prosecution was barred 
by the Supremacy Clause of the Federal Consti- 
tution and that the reach of Maryland's general 
statute was therefore preempted by congressional 
passage of the Federal Animal Welfare Act (10). 
Thus, the court was presented with two con- 
stitutional questions of considerable importance 
to the continued enforceability of general anti- 
cruelty statutes. First, do the old, nonspecific for- 
mulations of cruelty provide sufficient notice of 
what conduct is prohibited, under what circum- 
stances, and how violation of the law can be 
avoided? Second, has Congress so occupied the 
field of research regulation that enforcement of 
a similar State law would violate the principle that 
the Federal Constitution and reasonable Federal 
laws enacted under it are the supreme law of the 
land? The Animal Legal Defense Fund (ALDF), for- 
merly known as Attorneys for Animal Rights, Inc., 
a nonprofit professional legal group interested in 
better laws protecting animals, joined the State 
attorney general as a friend of the court in 
defending the appeal and briefing the constitu- 
tional issues raised by Taub’s challenges (11,66). 
Whether a State law is preempted by a Federal 
law is a matter of statutory interpretation by a 
State or Federal court. (Jurisdiction is concurrent 
where these questions arise, since both the State 
and the Federal Government have a stake in the 
outcome of the question.) Court decisions touch- 
ing on this question over the years have estab- 
lished two general requirements for Federal 
preemption of a State statute. First, the Federal 
Government must have the authority to preempt 
the State’s enactment. Second, Congress must 
have intended to preempt State law (115). 
Preemptive authority is found where Congress 
legitimately exercises an enumerated power, such 
as the constitutional power to regulate interstate 
commerce (79,100,112,118). A Federal law may 
also be preemptive when, supported by applica- 
tion of the “Necessary and Proper Clause" (111), 
it gives effect to an enumerated power, even 
though the means used is not expressly enumer- 
ated in the Constitution (68). In either of those 
circumstances, if the law is found to have a ra- 
tional basis for regulation and effectuation of an 
enumerated power, it is capable of preempting 
a State law (90). A Federal law does not have 
preemptive capability, however, if Congress uses 
its enumerated powers alone to go beyond its 
areas of enumerated concerns to achieve a result 
that a State could also achieve by the exercise of 
its reserved power. 
Congress may exercise an enumerated power 
to achieve an end extraneous to the effectuation 
of that power. Thus, for example, Congress may 
exercise its spending power to encourage an ex- 
traneous goal such as humane treatment for re- 
search animals. As a general principle, however, 
if an enumerated power is used to affect an area 
not within the Federal "circle" of interests, it can- 
not compel the States to accept that exercise. In 
such cases, concurrent jurisdiction exists (16,68, 
110). The ALDF brief relied on this principle in 
its assertion that, while Congress’ power to appro- 
