dissenting.
My colleagues assume 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, 107 S.Ct. 2113, 95 L.Ed.2d 724 (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 appealing to “inherent judicial power” (slip op. 548); once a rule has codified an approach, the rule must be followed to the exclusion of the common-law doctrines that preceded it. See Bank of Nova Scotia v. United States, 487 U.S. 250, 108 S.Ct. 2369, 101 L.Ed.2d 228 (1988). Cf. Cheney v. United States District Court, 542 U.S. 367, 381, 124 S.Ct. 2576, 159 L.Ed.2d 459 (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 reverse 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 Fresnillo, 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 distraction, 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 intrastate 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 of subsection (a), then the injunction should be directed *550against 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 operation 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 business. See, e.g., New Orleans v. Dukes, 427 U.S. 297, 96 S.Ct. 2513, 49 L.Ed.2d 511 (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 enactment — -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 colleagues don’t explain what federal rule requires this displacement of the state’s choice of an effective date. An unspoken (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 Pareto-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 legislation; 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 accommodated 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 Analysis of Legal Transitions, 99 Harv. L.Rev. 506 (1986). Illinois 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.1 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 serious 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 legislative 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 *551this suit. Just as the state won’t compensate 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 appropriate only when the plaintiff shows a substantial likelihood of winning. Cavel has not met this standard and is not entitled to an injunction pending appeal.
. Article 4 Section 10 of the Illinois Constitution provides: "The General 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 effective 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.