“Lawmaker wants to criminalize enforcing federal food law!”
That’s the headline of a recent KSL article (with an exclamation point added in for emphasis) regarding a billthat will be considered in the upcoming 2012 legislative session. Sponsored by Utah Senator Casey Anderson and originally drafted by the Utah Tenth Amendment Center, this bill is simple: it upholds the Constitution.
It does so by clarifying the difference between intrastate and interstate commerce; the latter is a power delegated to the federal government, but states constitutionally retain the authority over intrastate commerce—items which are exchanged only within the state. This bill does for agriculture what was done for guns in 2010.
But rather than leading out with any substantive, principled information, KSL’s article focuses on one provision of the bill which would penalize agents of the state government for enforcing unconstitutional federal regulations on intrastate commerce. They claim that the criminalization would be for federal law, but legislative mandates which violate the Constitution are not in fact laws, and should not be treated as such. Thus, the bill upholds the Constitution by prohibiting agents of the state government from enforcing policies which run afoul of its provisions.
The Utah Democratic Chair eagerly jumped into the fray, commenting that “this is… another example of Republican Legislators who are out of touch with Utah common sense values.” It is unclear to which values Mr. Dabakis is referring, but to the extent that Utahns believe in the Constitution, liberty, and limited government, this bill is in harmony, and not out of touch, with those values.
Dabakis continues his misguided comments by suggesting that the bill’s sponsor “should think out his ideas first, before trying to codify them into law.” The near-apoplectic reaction to this bill, which seeks to have the state reclaim powers long usurped by the federal government, demonstrates a destructive and disappointing trend: willing federal serfdom.
Serfs, of course, were peasants in bondage who occupied and worked on a plot of land owned by the lord of the manor, in return for protection. The same could be said of farmers today: they own and work their land at the mercy of the federal government and its increasingly burdensome regulations, for if they run afoul of the “lord’s” mandates, swift punishment will be meted out. Their land is not ultimately their own, and can be managed, condemned, and confiscated by the “lord” if they disobey his decrees.
The Utah Tenth Amendment Center rejects this bondage and affirms the primacy of private property; farmers who choose to produce and ship their agriculture only within the bounds of the state have no constitutional responsibility to heed the lords of the FDA, and thus merit the protection and interposition of the state government. This bill accomplishes that liberty-minded goal.
Dabakis claims that Anderson should “should think out his ideas first” but we humbly suggest that it is he whose ideas need some intellectual consistency. For support of his position, he writes that “The State Legislature’s attorneys commented on Senator Anderson’s proposal, saying that any court would likely find the law unconstitutional.” The KSL article commented likewise: “Legislative attorneys attached a note to the bill saying there is a ‘high probability’ that a court would find it unconstitutional.”
As anybody who has worked with lawyers will tell you, it’s easy to find one who agrees with you. Pointing to the opinions of a single lawyer for intellectual support is hardly a convincing argument or intellectual checkmate. In fact, the legislative attorney’s opinion, which is at the bottom of the bill’s page, has serious problems and will likely be disregarded by legislators who understand the Constitution better than their employed lawyer.
The attorney claims that the bill’s “provisions raise issues relating to the Supremacy Clause” and then proceeds to cite that clause in his opinion as follows:
This Constitution, and the Laws of the United States . . . shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.
When you see a lawyer purposefully exclude a portion of a constitutional reference, it’s likely that it was intentional, and quite often that exclusion is the key to better understanding the issue. So, too, with this legislative attorney. The clause reads, in full:
This Constitution, and the Laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the constitution or laws of any state to the contrary notwithstanding. (emphasis added)
Note the bolded text, which is the most important part of this clause. It makes clear that only those federal laws which are “made in pursuance” of the Constitution—in other words, those which are constitutional—can be considered supreme, and thus trump lesser, conflicting laws. By leaving that text out entirely, the lawyer attempts to deceive the legislature and build up the common, erroneous interpretation of the supremacy clause, which suggests that all federal laws trump lesser, conflicting laws. That is absolutely not the case. Given that the federal laws relating to food rely upon the commerce clause, only those commerce-related laws which are constitutional may be justified and bound upon the states. This leads us to the lawyer’s next paragraph.
The lawyer’s opinion argues, based on a horribly misguided Supreme Court case Wickard v. Filburn (and related cases) that the federal government has power over all commerce, extending even into a family’s home. In summary of these awful opinions by other lawyers, this lawyer writes: “The United States Supreme Court has recognized that Congress may regulate wholly intrastate conduct if the conduct has a substantial effect on interstate commerce.” In response to that laughably unconstitutional and anti-liberty opinion, this bill tells the feds to mind their own business by correctly interpreting, upholding, and enforcing the Constitution (unlike the black-robed lawyers at the Supreme Court during FDR’s administration) and by refusing to allow the federal government to micromanage and regulate commerce which never leaves Utah.
Just imagine the framers of the Constitution discussing with glee the empowerment of the federal government to tell a single farmer how much wheat he may grow, and upon what conditions. It’s laughable! And yet, as noted by Dabakis and KSL, the legislative lawyer concludes that there’s a “high probability” that the federal government won’t like being told that they can’t control anything and everything they want. Well, duh. The lawyer opines:
Based on the federal statutes and case law described above, there is a high probability that a court will find that this bill violates the Supremacy Clause to the extent that it: 1) conflicts with valid federal regulation of intrastate commerce; 2) makes it a crime for a government agent to enforce federal law; or 3) requires a court or the governor to uphold state law in violation of the Supremacy Clause of the United States Constitution.
Yes, the bill conflicts with federal regulation of intrastate commerce, but that regulation is not “valid,” nor is it constitutional. Yes, it makes it a crime for an agent of Utah to enforce an unconstitutional federal mandate; why would we justify the agents of our government in enforcing something that is invalid? And yes, it requires a court to uphold state law—not in violation of the Constitution, but in support of it.
This is a battle that deserves to be fought; farmers are being increasingly regulated and those who seek only to sell their produce within the state should not have to comply with a monstrous federal bureaucracy whose mandates are often anti-competitive as a result of the incestuous revolving door between regulators and agribusiness executives. Utah farmers need and deserve the interposition and protection of the state in upholding the Constitution and rejecting mandates which run afoul of that important document. This bill provides such an opportunity to legislators this session. Please contact your legislators (find them here) and encourage them to support bill SB34.
Connor Boyack [send him mail] is the director of the Utah Tenth Amendment Center. He is the author of Latter-day Liberty: A Gospel Approach to Government and Politics. Read his blog or follow him on Twitter.