February 9, 2012

Food Sovereignty, Raw Milk, and the Commerce Clause


I’ve written previously about the totalitarian implications of the central government’s commerce clause power.
To review, the government claims a prerogative to impose any and every kind of regulation and mandate upon so-called interstate commerce. “Interstate commerce” can mean any activity which crosses state lines, but it also means, according to SCOTUS rulings, any activity which by any stretch of the imagination could be said to affect this cross-border commerce.
Thus in the case of Wickard v. Filburn, among others, the court found for the government that not only selling something into the commerce stream, but withholding something from it, falls under the government’s power prerogative. This logic has recently been extended further. Since the passage of the health racket bailout, there have been several court challenges to the poll tax it imposes in the form of a mandate to buy worthless insurance policies. There have been conflicting decisions in the lower courts, but those who found for the rackets did so on the basis that the commerce clause power extends not just to activity withheld from the economy, but to inactivity, to mere existence itself.
We see how the term “totalitarian” is not hyperbole. According to the system’s laws, courts, and constitutional interpretations, there is literally nothing the government cannot order us to do or not to do under the commerce clause, as long as the activity or inactivity can by any stretch of the imagination be linked to the economy. Obviously, anything can be so linked.
(Of course commodification and globalization, chosen and imposed by government policy, render all activity “interstate”. We also see how the existence of the states themselves, which are for the most part arbitrary according to any geographic or political measure, is used to aggrandize central government power. Federalism was never anything but a scam. The goal from the 1788 start was centralized empire. So we see how the commerce clause was a ticking time bomb from day one. It’s now being exercised according to its full tyrannical logic.)
I’ve written before about how this weapon can be used against Food Sovereignty:

Revolving door corporate bureaucrats could issue fiats banning medicinal herbs or vitamin supplements, while requiring all growers right down to the backyard gardener to use any kind of synthetic fertilizer, pesticide or herbicide, hormone in an animal, or GMO seed. As always in this connection, let me remind the reader that if Obama’s health racket mandate is allowed to stand, that will provide another precedent for any and every corporate mandate. The exact same logic will allow the FDA or even the WTO to “constitutionally” force us to buy, for example, GMO seeds.

A more “conventional” use of the power, meanwhile, is the FDA’s claim that it can criminalize individual consumption of raw milk (that is, milk) if the citizen crosses one of these phony borders in the course of getting the milk.
Under pressure of direct action by the Raw Milk Freedom Riders, who have publicly and defiantly crossed state lines with their milk, the cowards at the FDA have announced, in all their elitist magnanimity, that they won’t seek to prosecute individual citizens for such acts, for now.
But the government continues the assault on dairy farmers, as in the persecution of Amish farmer Dan Allgyer for running a milk buying club, many of whose customers cross a bogus state line to get the milk. And this persecution in turn maintains the principle of total prerogative, as a federal judge just stipulated in a ruling permanently forbidding Allgyer to sell milk to any citizen whose “state” status is from outside Pennsylvania.
The judge stipulated that the FDA can and should prosecute individual citizens as well.

14 A provision of the FDCA, 21 U.S.C. § 321(b), defines “interstate commerce” to mean “(1) commerce between any State or Territory and any place outside thereof, and (2) commerce within the District of Columbia or within any other Territory not organized with a legislative body.” Courts have interpreted the purpose behind the FDCA’s interstate commerce regulation to be to “safeguard the consumer from the time the food is introduced into the channels of interstate commerce to the point that it is delivered to the ultimate consumer.” United States v. Wiesenfeld Warehouse Co., 376 U.S. 86, 92 (1964).

Thus, the purchase of raw milk by one who traveled between states to obtain it, or traveled between states before consuming it or sharing it with friends or family members, implicates “commerce between any State . . . and any place outside thereof,” see 21 U.S.C. § 321(b), “introduction of [raw milk] into the channels of interstate commerce” before delivery to an ultimate consumer, see Wiesenfeld Warehouse Co., 376 U.S. at 92, and “the interstate flow of goods” prior to delivery to an ultimate consumer, see United States v. Sullivan, 332 U.S. 689, 696 (1948). Such conduct plausibly involves “causing [raw milk] to be delivered into interstate commerce.” 21 C.F.R. § 1240.61.

So here we come back to the totalitarian commerce clause ideology.
We must be clear that this jurisprudence is not “radical” by the measure of the system courts. Few judges disagree with it at all, and those who do tend to do so only in partisan contexts. (Thus the judges who reject the health racket Stamp mandate tend to be Republican judges who have it in for Obamacare. But they don’t reject Wickard in principle.) The courts are loaded against the 99% and against any attempt by the people to take back our economies and polities. Needless to say, the same goes for the executive and legislative branches.
Trying to reform the system, or to beg for better outcomes within it, won’t work. We see the system’s terminally tyrannical and criminal intent. The commerce clause is just one example. If we want our freedom, our prosperity, our democracy, our citizenship, our human birthright, we’ll have to seize them ourselves. We’ll have to do so in spite of the system, in evasion of it and resistance to it, and where necessary in direct conflict with it.



  1. Russ,

    Boy have you been missed. Don’t get me wrong, hope you are rested and revived… thought you might be interested in this review of Graeber’s book http://thenewinquiry.com/blogs/zunguzungu/david-graebers-debt-my-first-5000-words/

    Sorry to continue off topic but have you seen the documentary on Dr. Burzynski (cancer, antineoplastines) fighting against FDA/Big Pharma/Cancer For Profit Industry? It’s available online or netflix now and could resonate (it’s real easy to digest) with that group of folk not quite ready to purge the ruling parasites. Powerful stuff, if it could just get a minimal amount of exposure in lieu of Hollywood high speed car crashes and explosions…

    Comment by Pete — February 9, 2012 @ 10:27 am

    • Thanks Pete. I haven’t seen the documentary. But I did just come across that piece on Debt and bookmarked it. I recommend that book to everyone I can. It really is a revelation blasting away all the lies and the entire alleged basis for this economy.

      Just like we always intuited – we don’t need the finance sector or money itself, and would be much better off without them.

      Comment by Russ — February 9, 2012 @ 11:56 am

  2. Yes, we are glad you are back.
    I feel more ready to put my nose to the grindstone and get something going.
    I am starting to feel that one must actually have a plan to help one’s family escape the “high cost structure” life most of us live in, to even have the time and energy available for an alternative.
    One must also learn how to play the part of the trickster: the archetypal rogue who knows how to turn the rules against the rulers.
    We need to learn to be low-cost-structure living rogue tricksters who stick together to create alternative paths.

    Almost time to start thinking about gardening projects again!

    Comment by publius — February 9, 2012 @ 11:07 am

    • I started planning my garden this week. I’m going to select based on

      1. nutrition/calories

      2. heirlooms

      3. for an increasingly warm and dry climate punctuated with extreme weather.

      Most practical is to become an expert in such gardening, toward the day I hope will never come where I depend on gardening for some of my necessary food.

      Comment by Russ — February 9, 2012 @ 11:53 am

  3. The judge used circular logic to define interstate commerce here: “safeguard the consumer from the time the food is introduced into the channels of interstate commerce to the point that it is delivered to the ultimate consumer.” United States v. Wiesenfeld Warehouse Co., 376 U.S. 86, 92 (1964). Yes, but it is not interstate commerce because the buying club does not resell the milk subsequent to bringing it into MD. So they are not acting as a distributor, but as an agent of the buyer. The sale occurs legally in PA, and then the milk is converted from commerce to the personal property of the buyer. At that point the milk is legally possessed and transported by anyone to any state. The point here being that the ultimate consumer can send his agent to PA to buy on his behalf and bring it back to him.

    Comment by aed939 — February 9, 2012 @ 11:31 pm

    • You’re talking about a common sense, English language definition of “interstate commerce”. But the Orwellian ideological definition the judge is using here goes back to the 40s (as far as being enshrined in SCOTUS jurisprudence). That’s one of my points here – anyone who thinks we should live according to common sense and simple reason (and that words should mean what they really mean) will get no help from the corporate/government system, only assaults. That’s just one reason the 99% needs to abolish the system completely rather than trying to “reform” it (that is, beg it not to be so evil).

      In the case of milk we see how begging and “playing by the rules” avails nothing, while direct action works.

      In this particular case, the buying club logic is certainly sound from any reasonable point of view. (Although the fact that milk has been criminalized, and that citizens must resort to such organizational convolutions, already indicates that we’re not in a reasonable environment. But at least it may have the good effect of helping educate milk drinkers to be democratic citizens rather than apolitical consumers.)

      But as the judge says, it’s the alleged effect on commerce, rather than whether or not a particular action is intrinsically commercial, which decides whether the action comes under the purview of the commerce clause, and therefore central government power.

      The point is that the idea that there’s a magic formula (such as cow shares or buying clubs) which will meet the requirements of some objective legality and appease the government (a common notion at the Gumpert blog) is misguided and wrong. The corporate/government is out to get us, period – milk, and the food sovereignty movement as a whole. Fascism cannot be appeased, and therefore there’s no good civics “legality”, no “rule of law” at all. The law is a weapon of the 1%, as we see in every sector, every context.

      We’ll never be secure in our natural right to milk or anything else so long as we try to rely on anything but direct action and a truly democratic movement.

      Comment by Russ — February 10, 2012 @ 6:07 am

  4. […] to totalitarian commerce clause jurisprudence. I’ve extensively covered this here, here, and here. (For the health racket bailout and Stamp mandate in general, see my posts catalogued here.)   […]

    Pingback by The Health Racket Mandate, Toward Other Corporate Mandates « Volatility — March 28, 2012 @ 4:44 am

  5. […] but are at the same time insisting that Obama’s Stamp mandate is constitutional? But the exact same totalitarian commerce clause logic which would find Obama’s poll tax “constitutional” could also find that a […]

    Pingback by GMO Labeling « Volatility — April 16, 2012 @ 8:21 am

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