Tuesday, July 31, 2018

Newman on Progressive-Era Meat Inspection (and My Exam Question on the Same Topic)

Patrick Newman, Florida Southern College, has posted The Big Meat: The Beef Trust, Regulatory Capture, and Government Intervention:
Government Inspection of Meat (NYPL)
This paper analyzes the relationship between government intervention and the Chicago Beef Trust in the late 19th and early 20th century up to the historically significant 1906 Meat Inspection Act. It argues that in order to understand the process behind the 1906 act one must also understand the motivations behind prior meatpacking regulations. The large Chicago meatpacking firms, innovators in meat safety and quality, were one of many special interest groups involved in the legislative arena and consequently lobbied against damaging legislation and supported the passage of laws they could benefit from. With regards to the 1906 inspection act the packers successfully blocked hostile legislation and instead secured an increase in government subsidized inspection and an extension of regulatory compliance to smaller competitors. This regulatory capture resulted in industry consolidation and higher prices at the expense of smaller competitors and consumers. Government meat regulation was not the result of one monolithic special interest but instead due to the complex interaction between rival and antagonistic groups.
In case you were wondering, Professor Newman writes that his paper
goes beyond [Gabriel] Kolko’s work . . . by extending it to earlier legislation and uses additional archival sources in the form of newspapers, private letters, and government reports to better understand the motivations behind the various actors involved. It argues, contra to Kolko [in Triumph of Conservatism (1963)], that the Chicago packers were not the only interest group but one of many, which included rival packers, rural cattlemen, railroads, local butchers, muckrakers, politicians and bureaucrats.
Professor Newman’s paper reminds me that I never posted the essay question on meat inspection from the most recent exam from my legal history course.  In researching the prompt, I was intrigued to see that judicial review of the Service's orders was controversial during the passage of the Meat Inspection Act of 1906, just as it was in debate over judicial review of Interstate Commerce Commission orders in the Hepburn Act of the same year.  The prompt follows after the jump.

The Meat Inspection Act, passed on June 30, 1906, requires the inspection by federal officials of every slaughterhouse or plant in which cattle, hogs, sheep or goats were slaughtered and/or processed and packaged for transportation or sale in interstate or foreign commerce.  The inspection commences with an “antemortem” inspection–when the livestock is received for slaughter–and continues through “postmortem” inspection of the carcasses, their preparation for shipping, their processing into “meat food products” (such as smoked meats, lard, or oleomargarine) and the toilet and other sanitary facilities for workers.   By 1926, inspectors were stationed at 913 plants in 259 cities and towns.  They conducted over 68 million antemortem and 68 million postmortem inspections.  They condemned 282,000 animals or carcasses in toto and 1 million more in part.

The federal inspection of meat had started earlier, in 1891, to overcome European bans on the import of potential unfit American meat products, but it was too poorly funded to cover more than a fraction of the nation’s slaughterers and did not extend to sanitation or the preparation of meat products.  Then, in March 1906, Upton Sinclair published his expose of Chicago’s meat packing industry, The Jungle.  The socialist journalist had hoped to create public sympathy for workers and state-owned slaughterhouses but succeeded only in arousing public outrage over the unwholesomeness of meat.  “I aimed at the public’s heart,” Sinclair later recalled, “and by accident I hit it in the stomach.”  President Theodore Roosevelt dispatched investigatory commission that included not just scientists but also social workers and sociologists to document the social and moral condition of the packing house workers.

In May 1906, the Progressive Republican Senator Albert Beveridge introduced what became the Meat Inspection Act as an amendment to the appropriations bill for the US Department of Agriculture (USDA).  It greatly expanded the duties of federal inspectors, forbid the interstate or foreign shipment of slaughtered cattle, hogs, sheep, and goats and edible substances derived therefrom without the inspectors’ stamp indicating it was approved.  It also more than tripled existing funding for meat inspectors to the then-enormous sum of $3 million.  The greatly augmented Meat Inspection Service remained within the Bureau of Animal Industry (BAI), created in 1884 within the US Department of Agriculture to promote the feeding and breeding of domestic animals and prevent the spread among them of infectious disease.  By statute, the BAI’s chief had to be a “competent veterinary surgeon.”

Popular historians often depict the act’s passage in dramatic terms. The Jungle electrified the nation and brought the Beef Trust–the five companies constituting something less than half the industry–to its knees.  In fact, the big packers welcomed meat inspection because they thought it would restore their reputation and because the costs of compliance might drive small competitors from the industry.  When, after the statute’s passage, the USDA Secretary told a gathering of meat packers to expect “the most rigid and severe inspection on the face of the earth,” they loudly applauded and asked that enforcement be “universal and uniform.”

Yet the meat packers had not gotten everything they wanted in the Meat Inspection Act.  Beveridge’s original bill provided only for an administrative review and did not mention court review.  In relevant part, it read:
[All inspections] shall be made subject to appeal from the decision of the inspector making such inspections to the inspector in charge located at such establishment in which such inspection so complained of is made; and from the decision of said inspector in charge as appeal shall lie directly to the Chief of the Bureau of Animal Industry of the Department of Agriculture in Washington; Provided, That the Secretary of Agriculture may, upon his own motion, at any time, consider any case so appealed or may so direct the Chief of the Bureau of Animal Industry of the Department of Industry to so consider any such case, and the decision of the Secretary of Agriculture or of the Chief of the Bureau of Animal Industry, acting under his directions as herein provided, shall be final and conclusive.
When the bill went from the Senate to the House of Representatives, the Agriculture Committee, chaired by James Wadsworth, added the following to the above paragraph at the request of the meat packers’ lawyer:
provided, however, That nothing contained herein shall deprive any person, company, or corporation, from appealing from such ruling or decision and from having the same reviewed and testing the legality or constitutionality of such ruling or decision in the circuit court of the United States in the district or circuit in which said ruling or decision is first made; and the right to take such appeal to test such ruling or decision is hereby conferred.
The meat packers argued that opinions would always differ over “the actual condition of meats.” For example, one inspector might decide that an ailment did not make an entire animal “unfit to eat after the objectionable part has been cut out,” while another might condemn the whole carcass.   The industry’s lawyer complained that an appeal from an Inspector to the Inspector in Charge and then on to the BAI Chief gave meat packers no “chance at all[.]  It is the Government deciding its own case all the way through.  Of course, the Inspector in Charge would sustain the Inspector and the head of the Bureau of Animal Industry would stand by his subordinates.”

But dissenters on Wadsworth’s committee countered that letting federal circuit courts review such findings as the unsanitary condition of a plant “de novo, upon the facts,” would “cripple materially the efficiency of the [inspection] service.”  The New York Times joined in.  It called Wadsworth’s court-review proviso “a trick, a sham,” and “a loophole.”  President Roosevelt also opposed the proviso, and it was dropped from the statute before passage.

Because of this omission or because it was not worth meat packers’ while to challenge inspectors’ assessment of a particular carcass, appeals to the courts were rare and generally unsuccessful.  For example, in United States v. Cudahy Packing Co. (1917), a US District Court rejected some Connecticut butchers’ argument that the 1906 act unconstitutionally delegated legislative power to the Secretary of Agriculture.  And in Houston v. St. Louis Independent Packing Co. (1919), the U.S. Supreme Court rejected a challenge to a ruling of the USDA Secretary upholding the Meat Inspection Service’s refusal to approve St. Louis’s sausage because it contained cereal and water in excess of a BAI regulation and therefore was “false or deceptive” under the 1906 act.  “Whether or not the term ‘"sausage,’ when applied to the product of the appellee. . . is false and deceptive is a question of fact, the determination of which is committed to the decision of the Secretary of Agriculture by the authority given him to make rules and regulations for giving effect to the act,” Justice Clarke wrote for the Court.  “The law is that the conclusion of the head of an executive department on such a question will not be reviewed by the courts, where it is fairly arrived at with substantial evidence to support it.”

The Meat Inspection Service survived another challenge from a different quarter.  Cynical journalists predicted that the Meat Inspection Act was sure to be enacted once congressmen realized it meant “three million a year for new political jobs for their faithful henchmen.”   The New York Times demanded that the Civil Service Commission administer a test for the new inspectors lest they be influenced by politicians who secured their appointment and the meat packers behind them.  “Clean meat requires clean inspectors,” the Times editorialized, “and these will not be got through a lot of politicians inspired and maintained by the packers.”  Once again, the reformers prevailed: all inspectors and their helpers were civil service appointees.  Moreover, all Inspectors in Charge, who oversaw the Service’s various field units (called “stations”), had to have successfully completed the three-year course at one of fourteen USDA-approved veterinary schools.  Laboratory inspectors had to be chemists and pass an civil service examination.  Even lay inspector helpers had to have three years’ experience in the slaughterhouses and pass a civil service exam.  The Meat Inspection Service quickly became the largest of the ten divisions overseen by the BAI Chief.  In 1926, the Service employed 2500 of the Bureau’s 4045 employees.

Inspectors worked side-by-side with the meat packers’ employees; those on the kill line shared with them what one observer called “the constant sight and smell of rent flesh, blood, entrails, and offal.”  Those conducting antemortem inspections made sure that yards, pens, alleys, and chutes were clean, that ceilings and walls were frequently scrubbed, and that all racks, tables, and tools were thoroughly cleaned each day.  Inspectors conducting antemortem reviews goes into holding pens with as many as 200 cattle and tags doubtful animals with “U.S. Suspect.”  These are slaughtered separately and subject to a postmortem inspection for lesions and other signs of disease.  Postmortem inspectors stand alongside workers who gut the cattle, check glands for tuberculosis one an animal’s head was removed, and examine intestines and other internal organs.  To keep up with the “never-ending stream of carcasses,” line inspectors had to work rapidly.  Often they sent dubious carcasses to a “Retaining Room” for more careful and deliberate examination by another senior inspector.  Carcasses that failed inspection were tagged “U.S. Condemned” and “tanked”–that is, rendered into inedible products, such as soap and fertilizer.  Those that made the grade received the “US Inspected and Passed” stamp that allowed them to be transported across state lines.

Inspectors thus were not off in Washington but, as an observer put it, “in the lion’s den” with the regulated.  Agricultural Department and BAI officials struggled to limit their discretion but also acknowledged that some was inevitable.  When the 1906 Act was before Congress, the Solicitor of the Agriculture Department promised that the determination of fitness would not be left to “the individual caprice of every inspector.  There are certain rules and regulations that must be followed.”  One provided:
Examination of the liver should include opening the large bile duct.  This should be done very carefully as cutting through the duct into the liver tissue will interfere with the detection of the small lancet liver fluke.  The incision should extend at least an inch through the bile duct dorsally and in the other direction as far as possible.  The beef liver should be palpated ... by exerting sufficient pressure with the hands and finger to be able to detect deep abscesses or cysts within the liver.
To ensure as much uniformity as possible, inspectors at the larger stations were moved from plant to plant.  The chief of the Meat Inspection Service dispatched “Traveling Inspectors” to conduct unannounced reviews of all stations, and all stations filled out “a very complex system of reports” scrutinized by officials back in Washington.

But even the BAI Chief admitted that "something must be left to the judgment of the inspectors.”  Whether to condemn a carcass in whole or only in part was a judgment call.  So was deciding whether a conveyer belt was so dirty as to convert a “remote” risk of contamination into a “direct” one and require the shutting down of production until the situation was corrected.  Further, as regulations multiplied, it became a commonplace in the industry that if all [of them] were enforced to the letter, no meat processor in America would be open.”  Superiors told inspectors “to ‘use common sense,'” to do their jobs “in a ‘reasonable way.’”  Their discretion was thus an amalgam of “law, custom, and necessity,” an investigator observed.

The 1906 Act strictly prohibited the payment or receipt of bribes to influence inspectors but low-level gratuities, such as the occasional free piece of meat, were nonetheless widespread.  (“No good inspector pays for his Sunday dinner,” was a common saying among them.)  Once Congress decided that the meat processors would pay inspectors for hours worked beyond their normal workday, “the subtle offer and withholding of overtime” functioned as system of rewards and punishments encouraging inspectors to be “reasonable.” 

Conservative politicians, commentators, and lawyers almost never mentioned the Meat Inspection Service.  An exception was the St. Louis lawyer Sterling E. Edmunds who denounced it in “The Growth of Federal Bureaucratic Tyranny,” an article published in 1933.  Edmunds commenced with the claim that no “system of so-called administrative law” could gain a foothold among a people “who share the heritage of the Englishman’s struggles” for “the rule of supremacy of law.”  Administrative law and the rule of law were “in unreconcilable antagonism,” Edmunds claimed.  “They cannot operate side by side; one or the other must give way.”  As an illustration, he cited a speech by Millard Tydings, in which the U.S. Senator from Maryland recounted how some would-be meat packers in his state, after bringing their plants into compliance with BAI regulations, still could not ship meat across state lines because the Service lacked the funds to inspect their plants–at a time when some 600 inspectors policed the industry’s four biggest companies.  Tydings had told them to proceed, because “no jury in the world would convict them, when the government, and not they, was at fault.”  When they did and were charged with violating the 1906 act, Tydings took their case to the BAI.  After a three-month delay, the Service finally appointed an inspector for their plants.  Edmunds drew the moral: “There is a certain discretion lodged in these federal agencies which no writ of mandamus can reach.”  Not law, but political pull, remedied the situation.  “Under bureaucracy,” the lawyer concluded, “justice becomes a matter of favor, not right.”

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