There are no words that cause raw milk advocates more heartburn than these: “The Congress shall have Power …To regulate Commerce with foreign nations, and among the several States, and with Indian Tribes.”
It was this section of the United States Constitution – the Interstate Commerce Clause – that as recently as this week tripped up an Amish dairy farmer who was legally milking cows in Pennsylvania, but selling illegally the District of Columbia and its Maryland suburbs.
But issues surrounding the Interstate Commerce Clause have spilled over to affect more than just raw milk since the time the Constitution was ratified. The Clause also affects other foods, as well as food safety.
Sick chickens, wheat and pasteurized milk are among the food issues that have piled up around the Interstate Commerce Clause – also known as Article I, Section 8 – and have even made their way into Supreme Court cases in disputes over when it applies.
Maybe if the U.S. constitution had set up a special panel of experts on business and the economy, we’d have a uniform and consistent series of cases ruling on when the Commerce Clause applies and when it does not.
But instead of these rulings being made by experts, people in robes who may or may not know how to balance their own checking accounts make them.
Because of this, our system produces decisions that often leave the reader of history with a case of whiplash from going back and forth.
My favorite among the many decisions involving the Interstate Commerce Clause and food is, by far, the “sick chicken case” of 1935.
It was that sick chicken that brought down the National Recovery Administration. The NRA required businesses to display “the Blue Eagle” to show that they were adhering to the organization’s various codes.
Four chicken guys from Brooklyn, however, did not go along with the NRA’s clueless attempts at making the market go up.
The Schechter Poultry Corporation was a poultry wholesaler supplying chicken to New York City wholesalers.They were eventually charged with 60 counts of violating the NRA Live Chicken Code. They pled not guilty, but were convicted.
On appeal, however, the U.S. Supreme Court ruled the Live Poultry Code was unconstitutional because it regulated intrastate commerce. The convictions were overturned.
Instead of just cutting his losses from the inept NRA with its scheme for lowering retail chicken prices in New York City, then-President Franklin Roosevelt subsequently went ballistic with plans to “pack” the court.
So that was the “sick chicken” case, so named for the NRA violation that had some connection to poultry health.
The Roosevelt administration then continued to attempt to impact prices through yet another law – the 1938 Agricultural Adjustment Act – which limited how much wheat individual farmers could plant.
Wheat grower Roscoe Filburn did not contest how much he could grow and sell into interstate commerce. He did, however, think that how much wheat he grew strictly for his own use was not subject to government jurisdiction.
So, when he was found and fined for growing excess wheat, he contested it all the way up to the U.S. Supreme Court. It was just seven years after the sick chicken case. Filburn lost.
The production quotas were found to comply with the Interstate Commerce Clause and the court went with the logic that if a farmer is allowed to grow his own chicken feed, demand for chicken feed will be down. So, growing your own could have a big impact on interstate commerce.
Some historians say that in the time between these two cases, during which Roosevelt threatened to double the size of the court with more favorable appointments, the President had whipped the court into doing his will. Of course by 1942, the war was on and the government’s power to dictate production had more urgency.
The sick chicken and wheat cases are just the first two on a long list of interstate commerce cases involving food, and sometimes food safety.
Baldwin, Hood, and Dean are among the names of three early cases involving milk and state laws to discriminate against out-of-state products.
The result of the Baldwin case was basically that if a state is going to isolate some part of its economy, it better have a pretty good reason for doing so. Regulating food prices is not part of a state’s role.
In Dean, Milwaukee dairies challenged the city of Madison’s law prohibiting the sale of milk produced more than five miles from the center of the city.
Indeed, it was our old friend the Interstate Commerce Clause that was relied upon in the 1941 case of Edwards v. California. In Edwards, a state law preventing poor people from other states from entering California was ruled unconstitutional.
All that human talent was part of interstate commerce, and was found to fall under the power of Congress to regulate.
Some, including many raw milk advocates from the comments I read, believe that the Commerce Clause has been used far too broadly to regulate societal functions that the founding fathers never would have considered to be “interstate commerce.”
A case not involving food or food safety, but regulation of school grounds, was found to be too much of a stretch even for Congress.
But I think it’s clear that when it comes to food and food safety, the Commerce Clause clearly gives Congress the power. And it is the Congress that should get any credit or blame.