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.

  • Leon

    Good on you, Dan, for explaining the subversion of commerce clause jurisprudence even though you seem to support it. Your belief that the commerce clause allows regulation of food safety is clearly at odds with the truth that even you acknowledge – but that’s irrelevant because federal regulation of food safety fails as a practical matter more so than a constitutional one.
    Readers of this blog know all too well the various failings of the FDA and USDA. The comic definition of insanity is to do the same thing over and over again expecting a different result. It’s time to stop the insanity.
    Forgot about debating whether the states should regulate rather than the feds. The real question is whether the supply chain should enforce food safety. The truth is that retailers are already moving toward this because of the failings of the government.
    Every business knows that it must police its suppliers. Of course, nobody wants to do this and everybody wants the government to relieve them of that burden. Nevertheless, every business also knows that even in an increasingly regulated world there is little more guarantee of quality today than there was 100 years ago. You still have to hold every supplier’s feet to the fire.
    That’s why people need to set aside their fantasies about the government making everything safe. Grownups know that regulations can be evaded and regulators can be bought no matter how hard you try to prevent it. You can’t acknowledge (correctly so) that these agencies are next to useless one minute and hail them as our saviors the next.
    Some people believe that the world would be like the wild west without government regulation. The reality proves otherwise. Mature industries are pefectly capable of delivering high quality products – when they want to do so.
    The Walmarts and Costcos of the world are already starting to make this happen. Retailers and distributors can and should demand food safety from every producer. Every day we waste trying to prop up the current system is costing human lives.

  • Michael Bulger

    I couldn’t help but notice that the two industry leaders you cite have repeatedly benefited from FDA and USDA regulations. We commonly see inspections and outbreak investigations save the industry from poisoning its customers. Unfortunately, an absolutist view no more applies to industry self-regulation than it does to the infallibility of government regulation. You argue that “regulations can be evaded and regulators can be bought”; well, by whom? By the very industry you think would best regulate itself?
    Properly designed and implemented government regulations are effective in saving lives. I do agree that work still needs to be done to improve the system, and retailers and distributors should do their part. Placing the burden solely on that sector would at this point be unfair to both market competition within that sector and, ultimately, consumers.

  • Leon

    I’m not sure what “benefits” these companies get. I assume you mean that the government is doing their jobs for them – and that is precisely what I’m talking about. The government isn’t doing as good a job as these companies are.
    For example, I just read on barfblog about Walmart dropping sprouts. Even though they pass regulatory muster, the sprouts still aren’t safe and presumably Walmart isn’t going to sell them again until a producer steps with a better process and convinces Walmart that they are safe.
    I also know from people working with these companies that they are pushing food safety measures down on their suppliers that go beyond USDA/FDA.
    These companies are actually doing it. Advocates of regulation on the other hand keep saying improve the system until it works. People need to acknowledge that this is a circular argument. They assume that government is the answer when that is in fact what they need to prove.
    It is a red herring to cite to examples where the government has been effective because it is quite possible that companies would have done a better job than the government if left to their own devices.
    Think about the government taking over airport security. I don’t know anybody who thinks they are doing a better job – but even if they were you can’t assume the previous regime was ineffective. Do you really think the airlines couldn’t and wouldn’t figure out how to do security if the government left them alone?
    I never said that government shouldn’t do epidemiology or other coordinating work. That is a proper role. Doing what industry could clearly do better is not.
    Finally, remember this: Government always has a conflict of interest with any regulation because the regulated parties are constituents who can have political influence. Purchasers, on the other hand, don’t care. Just ask anybody who’s done business with Walmart.

  • Hortense

    Consumer safety should be our prime objective in a rational world. Direct protections are essential. Capacity for producers to sincerely adopt altruistic attitudes of consumer safety is questionable. Capacity for producers to adequately police themselves, to possess the means as well as the will, is highly questionable. Capacity for consumers to understand risks in their adopted food fashions is unquestionably lacking when they rely upon popular opinion and blind trust. Politics trumps science in arguments thrown up by raw milk peddlers and small farm enthusiasts. See how adroitly the Food Safety Modernization Act was gutted by Senator Tester as a sop to the nostalgic small farm lobby. It is only a matter of time before romantic “food sovereignty” sophists assure the perfect legal right of food producers to endanger their (local) customers at will and on a whim. It will all work out just fine so long as the resulting local food poisoning outbreaks are not publicized.