A Thinking Reed

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The Humane Society vs. the farm bill

The Humane Society is opposing section 123 of the proposed 2007 Farm Bill which is supposed to be voted on by the House very soon.

The section says that:

Notwithstanding any other provision of law, no State or locality shall make any law prohibiting the use in commerce of an article that the Secretary of Agriculture has—
(1) inspected and passed; or
(2) determined to be of non-regulated status.

The HSUSA interprets this to mean that states and localities would be prohibited “from banning activities they deem to be contrary to public health, safety, and morals. Section 123 would undo bans on horse slaughter, intensive confinement of pigs and calves raised for veal, force-feeding of ducks and geese to make foie gras … [etc.]”

This piece at Grist describes further implications of this provision:

[T]his broad statement basically says that if the USDA says something is safe, a state or local government is not allowed to regulate it. For example, there have been a number of counties around the country that have banned genetically modified organisms from being produced within their borders. This preemption-style language, if it’s passed in the Farm Bill, would void those local laws.

This seems to me to be a bad idea both substantively and on grounds of democracy and local control. The HSUSA encourages people to contact the congressional representative about the provision here.

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5 responses to “The Humane Society vs. the farm bill”

  1. Gaius Sempronius Gracchus

    Can the constitutional distribution of powers as between the states and the federal government be altered by federal statute?

    I would not have thought so.

    Reply
  2. bs

    A thorny constitutional issue to be sure. But here’s a start (from a 2006 federal district court opinion summing up the Supreme Court’s jurisprudence):

    [Describes a case called Raich as signalling a sea change in the Court’s application of the Commerce and Supremacy Clauses. Until then, the Rehnquist Court was shrinking their reach, but Raich changed things. The Supremacy Clause more or less says that federal law trumps state law when the thing regulated is within the federal power and there is pre-emption. And the Commerce Clause basically says that the federal government can regulate interstate commerce. Just how broad they cast the Supremacy-Commerce net will dictate the constitutionality of the Farm Bill. The summary follows:]

    The [Raich] decision addressed whether a California state law-the Compassionate Use Act-allowing the medicinal use of marijuana, could be set aside through the Commerce [**11] Clause (under the Controlled Substances Act) when the drugs in question were produced and consumed locally. Raich, 125 S. Ct. at 2201. The Court ruled that HN7Congress could regulate purely local activities where [*1003] they were part of an economic “class of activities” that substantially affected interstate commerce. Id. at 2208-09.

    The Court relied heavily upon Wickard’s treatment of the Agricultural Adjustment Act for its reasoning: HN8″even if appellee’s activity be local and though it may not be regarded as commerce, it may still, whatever, its nature, be reached by Congress if it exerts a substantial economic effect on interstate commerce.” Id. at 2205-06 (quoting Wickard, 317 U.S. at 125) (internal quotations omitted). The Court reasoned that marijuana, as part of a $ 10.5 billion annual enterprise, was a fungible commodity similar to wheat. Id. at 2206, 2208.

    Notably, Justice Stevens characterized HN9the assessment of congressional authority as a “modest” task where the Court need only determine if the activities, viewed in aggregate, presented a “rational basis” for concluding (not actually finding) there was a substantial affect on interstate [**12] commerce. Id. Thus, the majority opinion stated it had no trouble finding a rational basis for Congress’ regulation of the intrastate manufacture and possession of marijuana. 3 Id. at 2208-09.

    As previously noted, Stevens’ opinion took considerable care to debunk the dissent’s argument that this ruling was not in compliance with recent Supreme Court case law. Id. at 2209-11.

    The opinion also weighed the question of federalism. In defense of this expansive use of congressional power in contradiction of a state law, Justice Stevens cited prior Court edicts: HN10″The Supremacy Clause unambiguously provides that if there is any [**13] conflict between federal and state law, federal law shall prevail. It is beyond peradventure that federal power over commerce, is ‘superior to that of the States to provide for the welfare of necessities of their inhabitants’ however legitimate or dire those necessities may be.” Id. at 2212-13 (citation omitted). Stevens further reasoned that Justice Thomas’ narrow construction of the Commerce Clause as set forth in the dissent would “require Congress to cede its constitutional power to regulate commerce whenever a State opts to exercise its ‘traditional police powers to define the criminal law and to protect the health, safety, and welfare of their citizens.’” Id. at 2213, n. 38.

    In response, Justice O’Connor, joined by Chief Justice Rehnquist and Justice Thomas, found the decision an example of “overreaching” authority that “stifles an express choice by some States.” Id. at 2229. Justice O’Connor quoted James Madison in The Federalist No. 45 for an overview of federalism: “The powers delegated by the proposed constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite . . .. The powers reserved [**14] to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State.” Id. (internal quotations omitted).

    Despite the dissent voiced in Raich, the decision embraces a broad application of federal regulatory commerce power and appears to be a shift back to the early held views of the commerce power that existed between 1937 and 1995.

    Reply
  3. Lee

    Lawyers – they think they know everything! 😉

    I wonder if it makes a difference from a legal or constitutional standpoint that in this case it appears to be a matter of the states wanting to more stringently regulate something?

    Reply
  4. bs

    It might depend on how the Court interprets preemption under the Supremacy Clause (they might say, hey, it’s not a conflict but an enhancement), but I think more likely it will be framed as a conflict of commercial interests vs. health interests: according to Stevens, at least, “It is beyond peradventure that federal power over commerce, is ’superior to that of the States to provide for the welfare of necessities of their inhabitants’ however legitimate or dire those necessities may be.” Thus, as the reasoning goes, if the Secretary says it’s good for the economy to have animal torture, then state statutes (and even constitutional provisions, i suppose) placing a ban on animal torture will be trumped.

    This reminds me a bit of the same sex marriage thing. As I recall there was some issue about whether the federal DOMA, which defined marriage as between a man and a woman, conflicted with the Mass Constitution’s inclusion of same sex couples under the state definition. A question arose over whether the Mass Constitution ought to be viewed as providing further marriage protection or as conflicting with pre-existing federally recognized marriage rights. Cf. Hohfeld’s Rights Table (showing rights talk is often mushed up with people ignoring correlative duties, etc.): http://lsolum.typepad.com/legal_theory_lexicon/2004/05/legal_theory_le_4.html

    Reply
  5. Farm bill victory « A Thinking Reed

    […] bill victory A while back I blogged about opposition to section 123 of the proposed 2007 farm bill from animal welfare and […]

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