                        IN THE
            UNITED STATES COURT OF APPEALS
               FOR THE SEVENTH CIRCUIT
                    ________________________

No. 07–2658

CAVEL INTERNATIONAL, INC., et al.,
                                              Plaintiffs-Appellants,

    v.

LISA MADIGAN, et al.,
                                        Defendants-Appellees.
                   __________________________

         Appeal from the United States District Court
    for the Northern District of Illinois, Western Division.
        No. 07 C 50111—Frederick J. Kapala, Judge.
                 __________________________

         Submitted July 17, 2007—Decided July 18, 2007*
                  __________________________

    Before EASTERBROOK, Chief Judge, and POSNER and ROV-
NER, Circuit Judges.
    POSNER, Circuit Judge. Cavel International, the principal
appellant (we can ignore the others), produces horsemeat for
human consumption. The plant at which it slaughters the
horses is in Illinois. Americans do not eat horsemeat, but it
is considered a delicacy in Europe and Cavel exports its en-
tire output. Its suit challenges the constitutionality of a re-
cent amendment to the Illinois Horse Meat Act, 225 ILCS

*The appellants’ motion for an injunction pending appeal was decided in
a brief order (Chief Judge Easterbrook dissenting) with a notation that
opinions explaining the ground for the order and the dissent would fol-
low. The opinions are being released in typescript.
No. 07–2658                                                     2


635/1.5, that makes it unlawful for any person in the state to
slaughter a horse for human consumption or “to import into
or export from this State, or to sell, buy, give away, hold, or
accept any horse meat if that person knows or should know
that the horse meat will be used for human consumption.”
Cavel lost in the district court, has appealed, and, after un-
successfully moving the district court for an injunction pend-
ing appeal, has asked us for such an injunction, emphasizing
the disastrous consequences for its business if the decision of
the district court stands.
     An affidavit by the firm’s general manager states that it
is a virtual certainty that if the injunction is denied the re-
sult will be the “permanent closure” of its plant. The state
counters feebly with an unattested statement that because
Cavel some years ago reopened after a fire had forced it to
close for two years, it can probably reopen again if it has to
close during the appeal. But there is no contention that
Cavel lacked fire insurance to tide it over that earlier period
of closure. Should the judgment of the district court uphold-
ing the constitutionality of the new statutory amendment be
reversed, Cavel could not obtain monetary relief from the de-
fendants. They are state officials sued in their official capaci-
ties because the only relief sought against them is an injunc-
tion. They therefore are not subject to liability for damages; a
suit against state officials in their official capacity is treated
as a suit against the state itself.
     Cavel has made a compelling case that it needs the in-
junction pending appeal to avert serious irreparable harm—
the uncompensated death of its business. Its showing per-
suaded the D.C. Circuit to grant Cavel a stay pending judi-
cial review of an order by the Department of Agriculture that
would if upheld force the shutdown of its business on
grounds unrelated to those of the present litigation. Humane
Society of the United States v. Cavel International, Inc., No.
07–5120 (D.C. Cir. May 1, 2007) (per curiam). The state does
not question the gravity of Cavel’s situation (despite the re-
mark about the fire) but responds that the state will incur
irreparable harm, too, if the injunction is granted, because a
No. 07–2658                                                   3


“slaughter cannot be undone.” But the statute does not seem
to be intended to protect horses. (The object of the statute is
totally obscure.) For it is only when horsemeat is intended
for human consumption—the niche market that Cavel serves
(less that 1 percent of its output is sold for other consump-
tion)—that a horse cannot be killed for its meat. Were Cavel
or a successor able to find a market in pet-food companies,
the slaughter of horses at its plant would continue without
interference from the state. And, if not, all that will happen
is that horses will be slaughtered elsewhere to meet the de-
mands of the European gourmets.
     The state argues that the injunction will diminish “the
scope of democratic governance.” That is a powerful reason
for judicial self-restraint when a statute, state or federal, is
sought to be invalidated by a court. A rule barring state
statutes from going into effect until any challenges to their
validity were litigated to completion would be offensive on
that ground; it would amount to rewriting the effective date
in all Illinois statutes. But at issue is a stay, based on a
showing in a particular case that the harm to the challenger
from denial of a stay would greatly exceed the harm to the
state from its grant, that would delay the application of the
statute to the challenger for a few months (the appeal in this
case has been expedited and will be argued on August 16).
Such a stay does not operate as a statutory revision or sig-
nificantly impair democratic governance. It is a detail that
because the statute in question is applicable to only a single
entity, a stay of enforcement against that entity acts to post-
pone the effective date of the statute rather than just to
postpone the statute’s application to one entity subject to it.
The state does not argue that a statute can never be enjoined
pending appeal; it concedes, as we shall see, that such an in-
junction is appropriate if the usual criteria for a stay pending
appeal are satisfied. The horsemeat statute is remote from
the vital interests of most Illinois residents; a brief delay in
its enforcement against Cavel will not create a perceptible
harm. Indeed, it is difficult to see what harm would ensue
from permanently abrogating the statute if the welfare of
No. 07–2658                                                  4


horses would not be affected, as it might well not be, as we
have pointed out.
    Even though denying the injunction pending appeal
would do far more harm to Cavel than granting it would do
to the state, we must consider whether the appeal has any
merit. If an appeal has no merit at all, an injunction pending
the appeal should of course be denied. But if the appeal has
some though not necessarily great merit, then the showing of
harm of the magnitude shown by Cavel in this case would
justify the granting of an injunction pending appeal pro-
vided, as is also true in this case, that the defendant would
not suffer substantial harm from the granting of the injunc-
tion. This is the “sliding scale” approach to decisions on mo-
tions for preliminary injunction that we have endorsed in
previous cases, e.g., Christian Legal Society v. Walker, 453
F.3d 853, 859 (7th Cir. 2006); FoodComm International v.
Barry, 328 F.3d 300, 303 (7th Cir. 2003); American Hospital
Supply Corp. v. Hospital Products Ltd., 780 F.2d 589, 593–94
(7th Cir. 1985), as have other courts. E.g., Serono Labsorato-
ries, Inc. v. Shalala, 158 F.3d 1313, 1317–18 (D.C. Cir. 1998);
Dan River, Inc. v. Icahn, 701 F.2d 278, 283 (4th Cir. 1983). It
amounts simply to weighting harm to a party by the merit of
his case.
    In denying the motion for an injunction pending appeal,
the district court did not apply this test or indeed any other.
He said only that Cavel had failed to make a “strong show-
ing” that the horsemeat amendment is unconstitutional. He
ignored the balance of harms. Cavel’s failure to make a
strong showing is certainly relevant to the granting of relief,
but it is not decisive. The judge did not exercise the required
discretion in determining whether to grant the injunction,
and so his decision is not entitled to the deference to which
discretionary rulings are entitled. Nor is his ruling that
Cavel failed to make a strong showing of likelihood to prevail
entitled to deference. It was a legal ruling the appellate re-
view of which is plenary. Hinrichs v. Bosma, 440 F.3d 393,
396 (7th Cir. 2006).
No. 07–2658                                                     5


    There is a difference between asking a district court for a
preliminary injunction and asking a court of appeals for a
stay of, or other relief from, the district court’s ruling. But
the sliding-scale approach is also applied in such a case. Id.;
Sofinet v. INS, 188 F.3d 703, 706–07 (7th Cir. 1999); In re
Forty-Eight Insulations, Inc., 115 F.3d 1294, 1300–01 (7th
Cir. 1997); cf. Hilton v. Braunskill, 481 U.S. 770, 777–78
(1987). As the Supreme Court explained in Hilton, “different
Rules of Procedure govern the power of district courts and
courts of appeals to stay an order pending appeal. See Fed.
Rule Civ. Proc. 62(c); Fed. Rule App. Proc. 8(a). Under both
Rules, however, the factors regulating the issuance of a stay
are generally the same.” Id. at 776.
    Cavel, it is true, is not seeking a stay; it is seeking to en-
join the enforcement of the horsemeat statute against it
pending appeal. But Rule 8(a)(1)(C), (2), of the appellate
rules explicitly authorizes the court of appeals to grant an
injunction pending appeal and does not suggest that the
standard is different from that applicable to a motion to stay
the district court’s judgment. We are mindful that Chief Jus-
tice Rehnquist, in a chambers opinion (and thus speaking
only for himself and not for any of the other Justices), Brown
v. Gilmore, 533 U.S. 1301 (2001), held that the authority to
grant such an injunction is conferred not by Rule 8 but by
the All Writs Act, 28 U.S.C. § 1651. Traditionally of course
the applicant for relief under the Act must show an incontro-
vertible right to relief, and not merely some likelihood of
prevailing. The Chief Justice required the same high show-
ing by an applicant for an injunction pending appeal. As the
1967 Committee Note to Rule 8 points out, however, the Su-
preme Court had held that the power was an inherent judi-
cial power; and so it doesn’t have to be grounded in the All
Writs Act.
    The approach proposed in Brown has not caught on. The
decision has been cited in seven cases. One was another
chambers opinion by Chief Justice Rehnquist. Wisconsin
Right to Life, Inc. v. FEC, 542 U.S. 1305, 1305–06 (2004).
The other six (five district court opinions and an unpublished
No. 07–2658                                                   6


court of appeals opinion) do not actually apply the Chief Jus-
tice’s heightened standard to requests for injunctions against
state statutes. In re McEvily, 55 Fed. Appx. 712 (4th Cir.
2003); Do The Hustle, LLC. v. Rogovich, No. 03 Civ. 3870,
2003 WL 21436215, at *8 (S.D.N.Y. June 19, 2003); Line
Communications Corp. v. Reppert, 265 F. Supp. 2d 353, 358
(S.D.N.Y. 2003); Foster v. Argent Mortgage Co., No. 07–
11250, 2007 WL 2109558, at *4 (E.D. Mich. July 23, 2007);
Smith v. Directors of the Enemy of Alien Control Unit of Dept.
of Justice, No. 07CV0508LJOTAG, 2007 WL 1655780, at *2
(E.D. Cal. June 7, 2007); Lawrence v. Reno, No. 00 Civ. 4559,
2003 U.S. Dist. LEXIS 14867 (S.D.N.Y. Aug. 28, 2003). In
Purcell v. Gonzales, 127 S. Ct. 5 (2006) (per curiam), the Su-
preme Court vacated an injunction against a state statute
pending appeal without suggesting that any special standard
applied to such injunctions and without citing Brown v. Gil-
more. See also Washington Metropolitan Area Transit Com-
mission v. Holiday Tours, Inc., 559 F.2d 841, 842 n. 1 (D.C.
Cir. 1977). The state in our case does not cite Brown but in-
stead relies on our Hinrichs decision, which says nothing
about an incontrovertible right of relief, but instead asks the
district court to consider merely whether the movant has a
significant probability of prevailing on his claim.
     The sliding scale justifies the injunction sought by Cavel.
The argument for the invalidity of the horsemeat statute is
not negligible. A state can without violating the commerce
clause in Article I of the U.S. Constitution (which has been
interpreted to limit the power of states to regulate foreign
and interstate commerce even in the absence of applicable
federal legislation) forbid the importation into the state of
dangerous or noxious goods. E.g., Maine v. Taylor, 477 U.S.
131, 151–52 (1986). But this case involves a limitation on ex-
ports, because Cavel has no domestic market; and the only
ground that Illinois advances for the horsemeat amendment
is “public morality.” The state has a recognized interest in
the humane treatment of animals within its borders, and we
can assume that this interest embraces the life of the ani-
mals and not just a concern that they not be killed gratui-
No. 07–2658                                                   7


tously or in a painful manner. But as we noted earlier, the
Illinois statute does not forbid the killing of horses, but only
the killing of them for human consumption of their meat. If
Cavel could (as apparently it cannot) develop a market for its
horsemeat as pet food, there would be no violation of the
statute. So it is possible that the burden that the statute
places on the foreign commerce of the United States is not
offset by a legitimate state interest, in which event the stat-
ute is unconstitutional. Kassel v. Consolidated Freightways
Corp. of Delaware, 450 U.S. 662, 669–70 (1981). “[T]he incan-
tation of a purpose to promote the public health or safety
does not insulate a state law from Commerce Clause attack”
Id. at 670. Since Cavel has no significant domestic market,
the statute does not “discriminate” against the foreign com-
merce of the United States, but it does burden it and so the
state is obliged to give some reason for it.
     We do not suggest that Cavel has a winning case or even
a good case (the Fifth Circuit in Empacadora de Carnes de
Fresnello, S.A. v. Curry, 476 F.3d 326, 336–37 (5th Cir.
2007), recently upheld a similar Texas law against a chal-
lenge based on the commerce clause), but only that it has a
good enough case on the merits for the balance of harms to
entitle it to an injunction pending an expedited appeal that
will enable the merits to be fully briefed and argued. It is
important to note in this regard that the sliding-scale ap-
proach that governs Cavel’s request for an injunction pend-
ing appeal does not require a “strong showing” that the ap-
plicant will win his appeal. The Supreme Court was precise
in stating in Hilton v. Braunskill, supra, 481 U.S. at 776,
that among “the factors regulating the issuance of a stay
are…whether the stay applicant has made a strong showing
that he is likely to succeed on the merits.” Certainly that is
one of the factors to be considered, but it has to be balanced
against the harms to the parties of granting or denying the
injunction.
No. 07-2658                                              Page 8


   Easterbrook, Chief Judge, dissenting. My colleagues as-
sume that, when deciding whether to issue an injunction
pending appeal, both the trial and appellate courts should
use the same sliding scale that a district judge uses when
deciding the case as an initial matter. This is a mistake.
Once a plaintiff has litigated and lost, a higher standard is
required for an injunction pending appeal.
    That’s one conclusion of Hilton v. Braunskill, 481 U.S.
770, 776 (1987). Hilton holds that a stay of a district court’s
order pending appeal requires a “strong showing” that the
appellant is likely to prevail. The Court equated appellate
stays and injunctions pending appeal, both of which fall
under Fed. R. App. P. 8. One cannot escape this by appeal-
ing to “inherent judicial power” (slip op. 5); once a rule has
codified an approach, the rule must be followed to the ex-
clusion of the common-law doctrines that preceded it. See
Bank of Nova Scotia v. United States, 487 U.S. 250 (1988). Cf.
Cheney v. United States District Court, 542 U.S. 367, 381
(2004) (the applicant must show a “clear and indisputable”
right to obtain equitable relief under the All-Writs Act, 28
U.S.C. §1651).
    So I ask (as my colleagues do not) whether plaintiff has
made out a “strong showing” that this court is likely to re-
verse on the merits. It has not done so. Cavel’s position is
functionally identical to the one raised, and rejected, in
Empacadora de Carnes de Fresnello, S.A. v. Curry, 476 F.3d
326 (5th Cir. 2007). My colleagues do not say that the fifth
circuit is mistaken; all they are willing to venture is that the
statute just might burden foreign commerce. That’s a dis-
traction, however, for Illinois does not discriminate against
foreign (or interstate) commerce. No one in Illinois may
slaughter a horse for human consumption, no matter
where the meat will be eaten. 225 ILCS 635/1.5(a). That no
one in Illinois wants to eat horse flesh means that all of
Cavel’s product is exported, but this does not convert a law
regulating horse slaughter (an intra-state activity) into one
that discriminates against commerce.
    If the (potential) problem in the law lies in subsection
(b), which forbids the export of meat produced in violation
No. 07-2658                                             Page 9


of subsection (a), then the injunction should be directed
against enforcement of subsection (b). Such an injunction
would do Cavel no good, however, because the prohibition
in subsection (a) against killing and butchering the horses
would remain. It is telling that my colleagues enjoin opera-
tion of the statute as a whole, without suggesting that the
rule against slaughtering a horse for human consumption—
the only part of the law that injures Cavel—is subject to any
non-frivolous legal objection given the Supreme Court’s
tolerant approach to even silly statutes that regulate busi-
ness. See, e.g., New Orleans v. Dukes, 427 U.S. 297 (1976).
    Although a “strong showing” on the merits is required
for any injunction pending appeal, insisting on a significant
likelihood of success is especially apt when the subject is
enforcement of a statute. An injunction pending appeal
does not permanently frustrate attainment of the state’s
goal. It does, however, permanently discard the statute’s
effective date. This provision won’t be enforced at some
later time; it will never be enforced. It is as if the majority
had held that the norm under the Illinois Constitution of
1970—that laws take effect on the June 1 following their en-
actment—violates federal law and must be replaced by
something along the lines of: “No state law that imposes a
substantial cost on any private interest may take effect until
all judicial challenges have been exhausted.” But my col-
leagues don’t explain what federal rule requires this dis-
placement of the state’s choice of an effective date. An un-
spoken (and unjustified) norm of judicial supremacy lies
behind this claim of power to override the state’s decision.
   Almost all laws cause injury; very few statutes are Pa-
reto-superior (meaning that no one loses in the process,
and at least some people gain). When a rule benefits some
persons without injuring others, there is no need for legisla-
tion; the people involved will reach the accommodation on
their own. Laws that cause loss to some persons (Cavel, for
example) create transition effects. How these should be ac-
commodated is itself a question for democratic choice.
Some scholars favor immediate change, with the losers not
being compensated. See, e.g., Louis Kaplow, An Economic
No. 07-2658                                                       Page 10


Analysis of Legal Transitions, 99 Harv. L. Rev. 506 (1986). Il-
linois has opted a longer period as a rule, although allowing
the legislature to provide for immediate effectiveness of
statutes enacted before June 1, or by a super-majority.†
Usually both the gains and losses of effective dates are felt
by the state’s populace; there is no reason to distrust the
state’s conclusion that the gains from swift effectiveness
exceed the losses.
    No state of which I am aware—and no federal law or se-
rious student of the subject—has advocated the rule: “Laws
that impose losses large enough to prompt people to hire
lawyers take effect only at the conclusion of federal judicial
review.” Such a rule not only denies states part of their leg-
islative power but also leads to strategic behavior: people
hire lawyers and file suits not because they expect to win,
but just because they can benefit from delay. That’s a fair
characterization of this suit. Just as the state won’t com-
pensate Cavel for losses in the interim if Cavel wins in the
end, Cavel does not propose to compensate Illinois for any
injury caused by delayed effectiveness of the statute. The
majority does not require Cavel to post an injunction bond.
Requiring an applicant to back its position with a promise
to pay would curtail strategic claims.
    Federal courts should allow states to select and enforce
effective dates for their statutes. Equitable relief is appro-
priate only when the plaintiff shows a substantial likelihood
of winning. Cavel has not met this standard and is not enti-
tled to an injunction pending appeal.



    †  Article 4 Section 10 of the Illinois Constitution provides: “The Gen-
eral Assembly shall provide by law for a uniform effective date for laws
passed prior to June 1 of a calendar year. The General Assembly may
provide for a different effective date in any law passed prior to June 1. A
bill passed after May 31 shall not become effective prior to June 1 of the
next calendar year unless the General Assembly by the vote of three-
fifths of the members elected to each house provides for an earlier ef-
fective date.” The Illinois Horse Meat Act became law on May 24, 2007,
and took effect the same day by virtue of §99 in the statute.
