Not Everything is “Interstate Commerce”

The United States federal government finds a seemingly endless array of ways to exercise authority it does not rightly possess. But perhaps the widest path to the destruction of state sovereignty winds its way through the Constitution’s commerce clause.

Since the infamous Wickard v. Fliburn case, the feds use the commerce clause to justify virtually unlimited intrusion into nearly every corner of American life. From regulating the nation’s entire health care system to waging a “war on drugs,” federal agents wield power over the states and the people via the commerce clause.

Rep. John Yarmuth reluctantly admitted the truth during a radio interview in August 2010. The show host asked the Kentucky Democrat: what can’t the federal government do if it can mandate Americans must purchase health insurance.

“It really doesn’t prohibit the government from doing virtually anything – the federal government. So I don’t know the answer to your question, because I am not sure there is anything under current interpretation of the commerce clause that the government couldn’t do,” Yarmuth replied.

Of course, the commerce clause was never intended to grant such sweeping power. It was meant to allow the feds to regulate trade across state lines with some ancillary power to regulate shipping and transportation. That’s it. It didn’t grant the federal government the power to regulate manufacturing or agriculture, and it certainly wasn’t meant to allow the feds to interfere with commerce engaged in strictly within a state’s own borders. James Madison alluded to the limits of the commerce regulating power.

“It is very certain that [the commerce clause] grew out of the abuse of the power by the importing States in taxing the non-importing, and was intended as a negative and preventive provision against injustice among the States themselves, rather than as a power to be used for the positive purposes of the General Government.”
Some states are beginning to fight back against federal intrusion into intrastate commerce. Legislatures in Iowa, Florida and New Hampshire will consider bills during the 2012 session that seek to reestablish the states’ control over commerce within their borders. And the Tenth Amendment Center expects a number of other states to follow suit this year.
House File 380 in Iowa reaffirms that the Constitution grants the federal government the power to regulate commerce among the several states, but the power to regulate intrastate commerce is reserved to the states or the people under the Ninth and Tenth Amendments. The bill goes on to declare:
All goods produced or manufactured, whether commercially or privately, within the boundaries of this state that are held, maintained, or retained within the boundaries of this state shall not be deemed to have traveled in interstate commerce and shall not be subject to federal law, federal regulation, or the authority of the Congress of the United States under its constitutional power to regulate commerce.
If the bill passes into law, any agent attempting to enforce federal law in violation of the act would be guilty of an aggravated misdemeanor and subject to appropriate penalties.
The Iowa bill, sponsored by Rep. Kim Pearson (R-Pleasant Hill), was initially filed in Feb. 2011 and will carry over into the 2012 session. Senate File 272, introduced at the same time by Sen. Kent Sorenson, serves as the companion bill.
A second Senate bill, Senate File 385, with 11 co-sponsors, proposes even stricter penalties. It would make it a class D felony to enforce any federal law interfering with intrastate commerce – that’s commerce within Iowa’s borders.
Rep. Matt Caldwell (R-Ft. Meyers) and Sen. Greg Evers (R-Crestview) sponsor the Florida version of the Intrastate Commerce Act. The bills’ language reads similar to Iowa’s, and the Florida act also makes it a felony for any agent to enforce federal law on intrastate commerce within Florida.
The New Hampshire General Court will consider HB1406. The bill, sponsored by Rep. Richard Ockerman (R-Rockingham) and Marc Tremblay (R – Berlin), declares, “all goods produced or manufactured, whether commercially or privately, within the boundaries of the state that are held, maintained, or retained within the boundaries of the state shall not be deemed to have traveled in interstate commerce and shall not be subject to federal law, federal regulation, or the authority of the Congress of the United States under its constitutional power to regulate commerce.”
The New Hampshire Intrastate Commerce Act does not stipulate penalties for agents attempting to enforce federal law on intrastate commerce.
But the New Hampshire General Court will take up stronger intrastate commerce legislation applying specifically to food grown in the state. HB1650-FN exempts any food grown or produced, and consumed in New Hampshire from federal regulation, providing that “any public servant of the state of New Hampshire as defined by RSA 640:2 that enforces or attempts to enforce a federal act, order, law, statute, rule, or regulation upon a foodstuff labeled ‘Made in New Hampshire,’ that is produced commercially or privately in New Hampshire, and that remains within the state of New Hampshire shall be guilty of a class B misdemeanor.”
Six legislators have signed on as sponsors of this bill.
And Utah will also consider an agriculture-centric version of the Act – Senate Bill 34 “prohibits federal regulation of an agricultural product that remains in Utah after it is made, grown, or produced in Utah, and addresses the designation of a Utah agricultural product.”
Putting a stop the federal government’s abuse of the commerce clause would fundamentally change the way the feds do business. Intrastate commerce acts establish a beachhead. The states must stand up and say, “No! We will no longer sit back and allow you to push us around!” It is our hope the legislatures in Florida, New Hampshire and Iowa will get these bills passed, and that other states will follow suit.