First Pennsylvania came for its citizens’ kitchens; now the federal government is after your gardens. A new bill introduced by Rep. Rose DeLauro (D-CT) has the potential to bring government inspections to the vegetable garden in your backyard. Although some reports — and DeLauro herself — deny that H.R. 875 could possibly have this effect, both the text of the legislation and the history of Supreme Court jurisprudence on similar issues suggest otherwise.
Within the food regulation bill itself, Section 406 states
PRESUMPTION. In any action to enforce the requirements of the food safety law, the connection with interstate commerce required for jurisdiction shall be presumed to exist.
This bit of text links H.R. 857 to the Commerce Clause of the Constitution, which has been used more than almost any other part of that document to expand the power of the federal government over the states and the people. From initially being understood as an injunction against states erecting tariffs amongst themselves, it is now interpreted by the Supreme Court as giving the federal government power to regulate any commercial activity which might be in any way logically connected to commerce which crosses state lines. Needless to say, there is typically a low standard for such logical connections, and the Commerce Clause has been used as the constitutional justification for the federal minimum wage, the limited work week, and more.
It has also been used by the Court to justify preventing a man from growing wheat for home consumption over and above a government production cap in Wickard v. Filburn (1942) on the grounds that this activity could affect interstate commerce because he would no longer have to buy others’ wheat — a ruling which is strikingly similar in its effect, namely regulating a home garden, to H.R. 875. Perhaps Rep. DeLauro has been a little disingenuous in branding her bill as harmless?
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