Wheat, Weed, Milk and Meat: How the Feds Control Our Food Supplies
A history and critical assessment of the Commerce Clause.
Increasingly, municipalities seek to regulate citizens’ activities in food, including growing vegetables, and keeping animals – especially chickens. Some of the ordinances and laws enacted in recent times would likely have shocked those who drafted and signed the federal or state constitutions, which were created in a very different time—when people everywhere were tied more directly to the land, farming culture and communities, and local food. The federal government has also expanded its claimed authority over these same areas, in the name of regulating interstate commerce and “health and safety.”
The United States Constitution declares that Congress possesses the power to regulate commerce “between the states.” This was historically interpreted to restrict federal authority to business dealings that entered interstate commerce: that is, in which goods or services were traded across state lines. But over time, that power has creeped into every aspect of citizens’ activities, and that interstate distinction has become largely irrelevant.
“Common Law” countries or legal systems incorporate case law—prior court rulings—as part of their basic jurisprudence. This tradition strives for consistency and predictability, premised on the theory of stare decisis (Latin for “Stand by the decision”). Stare decisis binds judges to the rulings of higher courts, called precedents.
Wickard v Filburn (1942) still stands as precedent regarding the federal government’s power to regulate individuals’ food rights. Ohio farmer Roscoe Filburn planted and harvested a greater quantity of wheat than allotted under the Agricultural Adjustment Act of 1938, and he was fined. The constitutional issue was whether the federal government had power to regulate Roscoe’s intrastate activity—he did not sell more than his quota, but used the excess he produced in his own farming activities.
Socio-politically, Roscoe’s timing was unfavorable: the nation was at war, and he was challenging FDR’s authority (in a Supreme Court in which FDR had appointed eight of nine justices). But Farmer Filburn and his attorneys argued that since his excess wheat was used solely for home consumption, it could not be regulated through the Interstate Commerce Clause. The Court ruled against him, reasoning that Filburn would have bought wheat on the open market if he had not grown his own: cumulatively with other farms who behaved similarly, Filburn’s conduct could affect interstate commerce.
Wickard expanded the Commerce Clause powers as the wheat legal precedent. Also in 1942, a milk precedent arose, in United States v Wrightwood Dairy Company:
Congress plainly has power to regulate the price of milk distributed through the medium of interstate commerce, United States v. Rock Royal Cooperative, Inc., supra, and it possesses every power needed to make that regulation effective. The commerce power is not confined in its exercise to the regulation of commerce among the states. It extends to those activities intrastate which so affect interstate commerce, or the exertion of the power of Congress over it, as to make regulation of them appropriate means to the attainment of a legitimate end, the effective execution of the granted power to regulate interstate commerce.
As might be expected, once Pandora’s Federal Regulatory box was opened, little hope remained of limiting federal authority over every aspect of activity that could be even remotely connected to commerce. This expansion of federal jurisdiction over states’ powers necessarily subsumed the rights of individuals.
This steady increase in federal powers was witnessed in 2005, regarding federal power to oversee private citizens’ marijuana use. Citing Wickard, the Supreme Court ruled in Gonzales v Raich:
Our case law firmly establishes Congress’ power to regulate purely local activities that are part of an economic “class of activities” that have a substantial effect on interstate commerce. ….The similarities between this case and Wickard are striking. Like the farmer in Wickard, respondents are cultivating, for home consumption, a fungible commodity for which there is an established, albeit illegal, interstate market. ….In Wickard, we had no difficulty concluding that Congress had a rational basis for believing that, when viewed in the aggregate, leaving home-consumed wheat outside the regulatory scheme would have a substantial influence on price and market conditions. Here too, Congress had a rational basis for concluding that leaving home-consumed marijuana outside federal control would similarly affect price and market conditions.
In 2012, this power was held to extend to Obamacare, and the authority to compel Americans to pay fees if they lacked health insurance:
If the government can make farmers choose between growing crops on their own land and paying a penalty, the administration’s lawyers have said, it can surely tell people that they must obtain health insurance or pay a penalty.
Some commentators argued that this shift reflected “...the deep cleavage between the Commerce Clause as it came down from the Constitutional Convention in 1787, and the faux Commerce Clause that emerged out of the New Deal.” Yet the Supreme Court narrowly approved Obamacare, despite a strong dissent suggesting the expansion of federal power violated the Constitution.
The Supreme Court has hesitated to include non-economic powers within Commerce Clause authority, including the regulation of guns and hate crimes. But as to food, there is no apparent presumption of individual autonomy implicit in American laws. This has led to a “food rights” movement, spearheaded by a largely symbolic state constitutional amendment in Maine. Other efforts, such as the PRIME Act, seek to avoid confusion and carve out specific areas of legal intrastate action that are still reserved to state authority.
The PRIME Act, first introduced in 2015, would restrict federal oversight of meat production for intrastate producers:
….large meat producers selling across state lines would still be subject to USDA regulations, but this legislation means that small local producers selling meat within their states would have significantly less red tape to wade through when trying to serve their communities. ….The PRIME Act would allow local grass-fed beef to be competitive with large-scale grain-fed beef. Even though grass-fed is more expensive to produce, if producers could get rid of the shipping overhead from transporting animals to USDA facilities, they could cut costs.
If Congress has the power to regulate intrastate commerce, then it has the power to protect intrastate grass-fed meat farming as well, and afford small operators and their customers greater food liberty. Expanded federal powers over food under the Commerce Clause have too often favored large corporate interests over local and individual liberties. That is surely not what the founding fathers intended.
Am I reading this correctly? If I grow enough tomatoes to supply my family with all the sauce, paste, stewed, and dehydrated tomatoes that we could possibly use in a year ... that this affects interstate commerce therefore the federal government could regulate it if it so chooses too? Is this a real precedent down to the home gardener? Or is it only if I double that number and then also sell some tomatoes? The federal government could not possibly care about my 45 tomato plants.
Hey, John. Good essay. Are you up for a bit of relevant international perspective?
In February of this year, Chinese officials made 4 public statements through which China defined its official position on the authority of international law as represented in the UN charter, and positioned that declaration of support for UN governance over-against the United States' “rules based order,” which is the framework by which the US government seeks to tell other countries what they can and cannot do.
The first of those public statements, a position paper titled "The U.S. Willful Practice of Long-arm Jurisdiction and its Perils," opened with a thematic statement that is germane to your post. To wit:
“The United States has a longstanding practice of exerting frequent long-arm jurisdiction over other countries, including both its allies and countries with which it has hostile or strained relations. In recent years, the practice has kept expanding in scope, with U.S. "arms" stretching longer and longer. Examining cases of U.S. abuse of long-arm jurisdiction, this report lays bare the severe harm it has done to the international political and economic order and the international rule of law.”
What follows are examples of US jurisdictional overreach that are traced to the 1945 US Supreme Court case that allowed long-arm jurisdiction by US domestic state courts that previously could not exercise jurisdictions on persons legally domiciled in other states. The Supreme Court made a landmark ruling that changed the trajectory of US Federal government actions by declaring that so long as an individual has some “minimum contact” with another state, that state can bring that individual before its bar of justice.
That effectively changed one's legal citizenship from one's state to the nation. It undercut the sovereignty of states in the bargain.
On that “long-arm jurisdiction” foundation, the Chinese article contends, the US began to extend in personam jurisdiction in civil and commercial cases even to residents of other countries so long as those persons had “a real and sufficient connection” to the US. The question, of course, is how to determine what qualifies as a “real and sufficient” connection.
Initially, the bar was set rather high, but over time the threshold for application of the principle was lowered to the point that “even the flimsiest connection with the United States, such as having a branch in the United States, [or] using U.S. dollar[s] for clearing or other financial services, or using the U.S. mail system, constitutes 'minimum contacts,'” reads the Chinese paper. Now, the Chinese maintain, all that is required for the US to exercise legal jurisdiction is for an action somewhere in the world to produce nebulous “effects” in the United States, regardless of whether the person is a citizen of the US or not, nor whether what the individual did was legal in her own legal jurisdiction when she did it.
This is the origin and justification of the so-called rules based order promulgated by the US, and by which the US now regularly enforces its “unwarranted jurisdiction” by “wantonly penalizing or threatening foreign companies by exploiting their reliance on dollar-denominated businesses, the U.S. market or U.S. technology.”
Put another way, this is how the US weaponizes our national power and financial hegemony. And these practices have been expanding as the US steadily lowers the threshold of “minimum contact” in order to advance its “hegemonic diplomacy” in pursuit of its own economic interests without regard to the sovereignty of other countries or the importance of negotiated rules of international conduct. Rather, the Chinese document asserts, the US “blatantly meddles in others' internal affairs, seriously damages the legitimate interests of other countries, and disrupts the normal order of international exchanges.”
These days, the US increasingly uses unilateral sanctions even against countries that have done nothing wrong, not even according to US “rules.” They can be sanctioned for choosing to not join US sanctions against some other country that has run afoul of our rules. But that's not legal at the international level; it's simply pure power projection. US unilateral sanctions have nothing to do with the consensus of the countries of the world, or the standards and determinations of the UN. In fact, even the UN exists under the constant threat of US sanctions if it opposes whatever “rules” the US decides are the current basis of global “order.” And all of those unilateral rules disproportionately benefit the US and its international business interests. So, the “rules based order” regime is as morally and ethically bankrupt as it is legally bankrupt.
The Chinese document and the three related speeches made in February have been widely read and heard across the non-western world, and is a part of what has buttressed the increasing pace at which many countries are turning away from the US and toward the BRICS+ alliance that is leading the development of bilateral and multilateral trade and settlement rails that don't rely on the dollar, the SWIFT system, or US-dominated international entities like the IMF and World Bank. Russia and China have also, each in their own way, made it clear over the last 12 months that they are not aligned with the World Economic Forum, and that, too, has encouraged developing countries.
Multipolarity is quickly becoming reality. It's a nascent movement, to be sure, but the rate at which the new system is being considered, embraced, and at least partially adopted has picked up speed since the beginning of the year, and looks to become more rapidly and broadly implemented as this year continues – and as other countries take stock of the inability of the combined US and NATO military to defeat Russia in Ukraine. It has become transparently obvious to everyone except the mal-informed populations living within the Trans-Atlantic nations that the US is no longer the dominant military power, and therefore need not be so thoroughly feared.
My point: it should be clear that the complaint you raise about the over-reach of the US Federal government into what were originally meant to be the affairs of sovereign US States is the same complaint China has leveled against that same government for reaching beyond its shores into the affairs of sovereign non-US States. The remedy will have to be similar. It will not be until our several states are prepared to operate cooperatively with one another, but independently of the bribes offered by DC to compliant states, and the threats and economic coercion leveled at any state government that demurs in the slightest on whatever DC determines to be essential matters, that we will restore our country to its promise.
No one is going to solve this problem from DC. That is to say, from the top, down. At both the international level and the domestic level, the problem is solved from the bottom, up. When States act in sovereign ways, prepared to work with each other apart from the tools, resources, and mechanisms controlled by DC, the power of DC will evaporate. Not without threats, and perhaps even violence here and there, but as long as the citizens of sovereign States remain determined, and their governments do not fold to enticement or threats, State sovereignty will return.
That applies to both domestic and global States. At the global level, the movement is gaining momentum. The whole world would appreciate it if we would get our domestic house in order. I would too, and it is why I am now interested in supporting politicians and leaders who have the same attitude toward DC that is emerging across the once-subjugated, now self-liberating globe.