Unconstitutional State Food, Agriculture Crackdowns Spur Congress to Act

States like Massachusetts attempt to control how farms outside their borders operate.


Chicken Farm
Yotrak / Dreamstime

Earlier this summer, Rep. James Sensenbrenner (R-Calif. Wisc.) introduced a bill that could dramatically change the ways states tax and regulate interstate commerce, including commerce in agriculture and food.

The bill, known as the No Regulation Without Representation Act of 2017, would bar states from regulating or taxing many businesses that don't physically operate within their borders.

The bill is intended to rein in "certain State impositions on interstate commerce." It declares "a State may tax or regulate a person's activity in interstate commerce only when such person is physically present in the State during the period in which the tax or regulation is imposed."

But wait. Doesn't the Constitution already prohibit states from regulating interstate commerce, via the Commerce Clause (and its corollary, the dormant Commerce Clause) and the Fourteenth Amendment? You bet! But states increasingly ignore those edicts.

Take Massachusetts, where voters in November adopted Question 3. The law, which won't take effect for at least a couple years, bans "the sale of eggs, veal, or pork of a farm animal confined in spaces that prevent the animal from lying down, standing up, extending its limbs, or turning around." The law applies not just to farms in Massachusetts but also to "farms located in other states," notes one recent report.

As I wrote last year, the law "impose[s] unwise, harmful, costly, and unconstitutional standards for raising a host of livestock animals." Though the Massachusetts law imposes the same restrictions on businesses in every other state that it imposes on businesses in Massachusetts, that doesn't make the law fair. It makes it unconstitutional.

"The state may well be allowed to regulate many facets of agriculture within its borders," I wrote last year. "But it has no such authority to regulate the way livestock is raised in other states."

The bill introduced by Rep. Sensenbrenner is a direct threat to the Massachusetts law. While Massachusetts voters clearly erred in choosing to adopt this unconstitutional law, they're not alone. California voters adopted a similar law earlier this decade.

Both states' laws, which I discuss together here, are just the sort of unconstitutional laws Rep. Sensenbrenner's bill is intended to eradicate. Indeed, it appears the origins of Rep. Sensenbrenner's bill stem directly from battles like these over food and agriculture.

"[The new bill] is likely related to a fight between states that has been progressing through the courts," reads a good National Law Review analysis of the bill, which compares it to a narrower Sensenbrenner bill that stalled last year. "California has a law that requires eggs sold in California to be laid by hens in cages that are of a specific size. Missouri and other states sued to invalidate California's law, but lost in the 9th Circuit and certiorari was denied by the US Supreme Court on May 30, 2017."

Unsurprisingly, the bill has strong supporters and vehement detractors.

Animal-rights and animal-welfare groups are in the latter camp.

"We're all for neutering pets," Paul Shapiro, vice president for policy engagement with the Humane Society of the United States, told me by email this week, "but we don't know why Mr. Sensenbrenner wants to neuter the states and strip their ability to protect their own citizens."

The National Conference of State Legislatures (NCSL), a bi-partisan group that represents state lawmakers across the country, says the bill is "one of the most coercive, intrusive, and preemptive legislature measures ever introduced in Congress."

The National Governor's Association, which also opposes the bill, issued a joint statement with the NCSL saying the measure would hinder states' power to tax.

But many conservative, libertarian, and business groups support the bill., helmed by libertarian CEO Patrick Byrne, says the bill would limit unfair and burdensome taxation by states. Hamilton Davison, head of the American Catalog Mailers Association, which also supports the measure, says the state laws the bill is intended to negate "contradict Supreme Court precedent… and disproportionately harm smaller businesses with limited means."

Americans for Tax Reform head Grover Norquist says the bill would "reign[] in government overreach by forbidding any state from 1) imposing a sales tax on businesses physically outside the boundaries of the state, and 2) prohibits any state from exporting regulations onto businesses in other states." The R Street Institute says "[p]assage of this bill would codify important Constitutional protections on behalf of consumers, taxpayers, and small businesses."

Proponents of animal agriculture also support the bill.

"No state has the right to tell the citizens of another state they can not sell a product to that state[']s citizens," says the nonprofit Protect the Harvest, in a statement emailed to me this week. "These laws being introduced do not protect the welfare of the animals they seemingly are trying to protect. They are to eliminate the use of animals in agriculture period."

In its letter to Congress, the NCSL concludes "it is the prerogative, no, it is the obligation of states to remind Congress that there are 50 stars on the American flag, not 535," the latter figure referring to the number of Members of Congress.

That is undoubtedly true. But until states like Massachusetts and California stop overstepping their constitutional authority—by passing, to turn the NCSL's overheated rhetoric against it, "coercive, intrusive, and preemptive" laws—they can expect Congress will flex its muscle in response.

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    1. Triggered snowflakes marching with their pussy hats tiki torches.

      1. Crusty is just mad cause he has no game when it comes to alt-right chicks.

    2. So, when white, male, non-Lefty assholes march it’s Panic Time, but when Lefty assholes of all descriptions pull pretty much the same crap its “lets all applaud the politically engaged”.


      I don’t like bigots. But it’s kinda hard to get too worked up over White male bigots when the Left has been going full-bore anti-white anti-male bigot for, what, thirty years now? Forty? Did the Progressive Left really think they weren’t going to stir up a backlash?

  1. While Congress tries to restore the meaning of the “Interstate Commerce Clause”, could they pay attention, not just to meat-milk-eggs, but health insurance as well? It’s not too much to ask, MeThinks…

    1. Hey, it’s nice they’re doing anything at all. Little steps….

    2. How is the Massachussets law trying to regulate business outside the state? It just says you can’t sell certain types of meat in MA. Does the law ban sales in other states? That would obviously be unenforceable.

      1. Practically speaking, it means that an interstate supermarket chain has to use only certain meats or eggs.

        1. But only in MA, right? I am not defending this law. I just want to understand the legal argument.

          1. Correct. What SHOULD happen, is all interstate super markets would suspend operation in MA, and starve the population until the recall process plays out.
            Same thing in CA; for instance, the car companies should just pull out for a few years and see how many regulations get revoked.

            Sadly, so far only Barratt has had the corporate balls to properly respond to state overreach with unconstitutional laws. When CA outlawed all .50 caliber rifles, including single shot versions, excpet for ‘law enforcement’ of course. Ronnie Barratt told them he would not participate in illegal (unconstitutional) activity, and they would not receive any more of his product, and would have to come get all those currently in for service.
            “Barrett cannot legally sell any of its products to lawbreakers. Therefore, since California’s passing of AB50, the state is not in compliance with the US Constitution’s 2nd and 14th Amendments, and we will not sell nor service any of our products to any government agency of the State of California.”
            (remove space after hhtp:

          2. To be honest, I’m a bit confused as well. Individual states have all sorts of laws about what may or may not be sold in their states; I’m not sure why they view this to be different. You can’t buy a automotive radar detector in some states, how is that different? It’s still telling a company you can’t sell your product here. The Peoples Democratic Republic of California has piles of things you can’t do or sell there, why this is the first to be an issue I can’t imagine.

  2. …the state laws the bill is intended to negate “contradict Supreme Court precedent… and disproportionately harm smaller businesses with limited means.”

    I wish he had said that the state laws intended to harm smaller businesses, which is likely the case.

    1. In this case, I think they don’t really care much about the size of the business. They just want to stop other people from doing things they don’t like. Control is their only motto.

  3. Interesting if we can establish a principle regarding the states’ inability to regulate interstate commerce in foodstuffs – liquor is a foodstuff and my county doesn’t allow liquor sales at all, the city has liquor but not on Sunday.

  4. I really hate to be on the same side as animal rights groups, especially after those bastards got red paint all over my panda/tiger fur coat with elephant ivory buttons, but I’m going to side with federalism on this one.

    1. Elephant ivory, ha!

      Protecting Woolly Mammoths from Extinction!

      New York State Government Almighty the vanguard! They are protecting wooly mammoths from extinction! I kid you not!
      Please see . . . about-8-million-of-elephant-ivory-destroyed . . . -in-central-park.html among other links. New York State will destroy your art created from mammoth ivory as well as from elephant ivory! I have read that telling mammoth ivory from elephant ivory is a trivial task! Government Almighty just LOVES to flaunt its arbitrary power to destroy!

      1. Um have you read Jurassic Park. We must squelch the immoral trade before mammoth species are resurrected.

        1. That documentary was so flawed. Everyone knows there was no Linux in the Jurassic era.

    2. “I really hate to be on the same side as animal rights groups, especially after those bastards got red paint all over my panda/tiger fur coat with elephant ivory buttons, but I’m going to side with federalism on this one.”

      Yep, let the fine citizens of Massachusetts pay the premium for feel-good stupidity.

  5. Screw the chickens, can we please go back to using lead foil on our wine bottles rather than plastic crap? Thanks to the Californian’s asinine labeling laws, one now needs not just a corkscrew but a knife to open a bottle.

    1. Just get rid of the corks completely. The plastic sealed screw tops are so much better; corks are only still used for looks.

      1. I agree, how can we not do better than corks?

        1. We can. It’s just that screw tops were originally only on really cheap wine, so a lot of wine makers stick with corks purely to avoid the impression that they’re a cheap wine.

          Luckily that’s finally starting to change.

    2. Do you have a knife permit?

    1. Yeah, that looks pretty awesome 🙂

  6. State and Local regulation is the biggest nightmare for national corporations which is one of the reasons they often support federal regulations. One it gives them consistency, two easier to control what happens in DC than what happens throughout the country.

    1. It’s also a pretty good anti-competition tool.

  7. Seems like an overreach of the UCC. But does this mean I can order pot from Colorado and Ohio can’t stop me?

  8. Proof that there is no known cure for TDS:

    “Cubs at SF Zoo highlight glut of orphaned Alaskan bears”
    “”It’s definitely not normal,” said Patrick Lampi, executive director of the Alaska Zoo in Anchorage. “I’ve worked for the Alaska Zoo for 31 years, and we’ve never had this many bear cubs ? the most in the past it was maybe five or six, and this year it was 11.”
    So the increase is perhaps 5 or 6 bear cubs found in the entire state of AK in an entire year! And the cause?
    “a glut of orphaned bear cubs found malnourished in the Alaskan wild in a trend that coincides with a repeal of regulations restricting the hunting of bears that was approved by President Trump.”…..758801.php

    Yes sir! It was that big meany TRUMP!!!!!!!!

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    1. Dr. Mack better re-invoke his magic! I caught yer boyfriend just last night humping a dead possum in my back yard, in the middle of my manure pile!

  10. Ironic that a statist dbag like Sensenbrenner is on the side of less state power.

    1. There’s a difference between state and State.

  11. “The bill is intended to rein in “certain State impositions on interstate commerce.” It declares “a State may tax or regulate a person’s activity in interstate commerce only when such person is physically present in the State during the period in which the tax or regulation is imposed.”

    “Doesn’t the Constitution already prohibit states from regulating interstate commerce, via the Commerce Clause (and its corollary, the dormant Commerce Clause) and the Fourteenth Amendment? You bet! But states increasingly ignore those edicts”

    Am I crazy here? I don’t see the point. If states “increasingly ignore those edicts” what is the point of adding one more edict for them to ignore? Does the new law come with a new law smell, which will coerce everyone to follow it till it wears out and starts smelling old and musty like the constitution, so then it can be happily ignored too?

    1. Two guesses (I am too lazy to look up the exact wording in the Constitution).

      One: The Constitution may only say that “Congress may regulate commerce among the states …” and thus Congress has to actually pass a law to make it so.

      Two: It’s a lot easier to bring suit when there’s a specific law against that action, compared to arguing about the exact meaning of 200+ year old Constitutional quibbles.

    2. Because if you pass a law, people forget that the constitution has supremacy. Like passing gun laws that are entirely unconstitutional is easier than actually repealing the second amendment.

      1. Can’t say I disagree with you. They(govt) say that the commerce clause(CC)denotes all these authorities that have no grounding in history, then they ignore the plain text which has been well understood for over 200 years. They write drug laws based on the authority they claim under the CC.
        But long before that, govt went to the very difficult trouble to pass a constitutional amendment to regulate/outlaw alcohol, then again to remove that authority.. But why? If they had the authority under the CC to outlaw anything, with a simple bill, why write an amendment at all? And from my understanding, the feds never repealed the prohibition laws, just their authority to regulate it by repealing the amendment. But If they still have that authority under the CC, that means all the alcohol laws that were passed during prohibition are still active, and every one involved in alcohol is a felon.

        I have to disagree with (Scarecrow Repair & Chippering), if they are having trouble “arguing about the exact meaning of 200+ year old Constitutional quibbles” which have supporting documentation and explination by the authors, about a small and longstanding text. It’s not because it is easier to write a specific law, It’s becuase like you say (Longtobefree) it’s because if they supersede it they want credit for fixing a problem.

        Plus the simple truth is that they just redefine words to mean what they want, which grants them enormous control. This is just another example to throw on the pile.

  12. I’m in trying to figure out how this works with state’s rights. Unless that was just code for allowing segregation.

    1. State’s right was the outdated concept that a state government can and should be the primary source of legal control over a citizen’s conduct. It presupposed that a state, as an entity, had rights and responsibilities. Among the many fallacies was the concept that the senate would be the legislative house dedicated to representing the states, to assure that the states were not burdened unconstitutionally by federal legislation.
      Fortunately, this roadblock on the road to progressive control of each and every individual has been discarded.

    2. Individual rights beat state rights every time. Or should. Part of the point of federalism is to have a limited competition of governments. so that if one violates individual rights, the other can beat them up. It doesn’t work very well in practice; it’s like sailors and Marines hating each other until the coasties show up, then they combine against the mutual outsider, and then the soldiers and flyboys show up, and all three combine against the new foreigners. State and federal politicians may despise each other, but they are united in fighting individualism.

  13. Look, I get that the larger libertarian position is that the state shouldn’t be regulating *at all*, but this argument? If you think it’s reasonable for a state to say “this product doesn’t meet our standards, sell elsewhere”, then it’s a nonstarter.

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