I seem to have stumbled onto a pattern as I find another story about a state pushing back on the overreach of the federal government. Today we go to Vermont to see their legislature re-asserting their authority over intrastate commerce.
As I’ve said before, I love when states take up their mantle to stand against an overreaching federal government. We often talk about checks and balances within the federal government, but we forget that the states are to be a check against the federal government as a whole.
This story starts with a federal Food and Drug Administration (FDA) regulation:
Sec. 1240.61 Mandatory pasteurization for all milk and milk products in final package form intended for direct human consumption.
(a) No person shall cause to be delivered into interstate commerce or shall sell, otherwise distribute, or hold for sale or other distribution after shipment in interstate commerce any milk or milk product in final package form for direct human consumption unless the product has been pasteurized or is made from dairy ingredients (milk or milk products) that have all been pasteurized, except where alternative procedures to pasteurization are provided for by regulation, such as in part 133 of this chapter for curing of certain cheese varieties.
While it is within the enumerated powers for Congress to regulate interstate commerce, this is an illegal regulation since only Congress, and not the executive branch in the form of any federal agency, has been authorized to regulate commerce between the states:
To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;
In both Farm-To-Consumer Legal Defense Fund v. Sebelius and Public Citizen v. Heckler, courts have found that it is within the authority of Health and Human Services, the parent agency to the FDA, to institute a ban not only on the interstate sale of raw milk, but on the intrastate sale as well. However there is no constitutional basis, and therefore no legal basis, for the federal government to regulate intrastate commerce. To combat this federal overreach, the Vermont House has introduced two bills, H480 and H481 to allow, with some restrictions, the sale of unpasteurized milk within the state. (The main difference between these two bills seems to be H481 proposes a two-year pilot for the sale.) Whether or not you think people should be consuming raw milk, there are two very important points made by these bills.
First, it is not within the purview of the federal government to regulate commerce within a state, for any reason at all. In Public Citizen v. Heckler, the court found that HHS did have the authority to ban the interstate sale of raw milk. While this should be done by legislation and not by executive regulation, Congress does have the power to regulate interstate commerce. However, the court also found that:
Should it appear that the interstate sale of raw milk continues, it is within HHS’s authority at that time to institute an intrastate ban as well.
Just because a federal law does not have the desired effect, that does not give it the authority to violate a state’s sovereignty to get the ends they desire. While both the FDA and this court should have been disciplined for so blatantly violating their oath to support the Constitution, so should the citizens of this nation for allowing Congress to once again abdicate not only their legislative, but their oversight responsibilities as well.
Second, if we truly are a free country, then we should be free to live our lives as we see fit as long as we don’t infringe on the rights of others. If you want to drink raw milk, or do any of the myriad of other potentially harmful actions, you should be free to do so as long as you don’t expect others to pay for the consequences of your decision. And if you wish to sell someone a product that has the potential to do harm (and that is just about any product you can think of), as long as you don’t misrepresent the product you should be free to do so. When we ask government to protect us from ourselves, we give up our own sovereignty and become slaves to that government. Just because you believe people shouldn’t do something like drink raw milk, because it’s potentially dangerous, that does not give you the right to force your will on others. That makes you a tyrant. As long as they don’t come to you to pay for what happens afterwards, it’s none of your business. You are perfectly free to tell people why it is potentially dangerous, but you do not have the right to prevent them from doing it.
Conclusion
I believe all everyday Americans should support Vermont’s attempt to push back on the federal government. Whether or not you agree with how the people in Vermont want to live their lives, we need to protect their right to do so without government interference. If we wish to have our rights protected, we must protect the rights of others as well. Or one day someone will convince those in Washington that you should not be allowed to do something you like, and who will be left to support you?
