The Law of Agriculture
Commerce Clause is Coming to Town
ADAM R. BIRK
CAPE GIRARDEAU, MISSOURI
The law is split into many areas. Torts, Criminal, Real Property, Family, Estates, Contracts, and Constitutional law just to name a few. As an attorney, I only work in a few of these many areas of law. But as a farmer, and as a citizen generally, I participate in all areas of law either by obedience of the law or by feeling the economic and societal effects of the law. Every law ends up governing us in some fashion, whether we are even aware of the law and its effects or not.
If all laws end up governing us in some fashion, the question is; Is there any areas of daily life the law can’t touch and govern me in? Answering this question is one of the primary purposes of the Constitution. As such, Constitutional law has a great effect on our daily lives since all federal regulations have to (or at least should) work within the confines of the Constitution. So how far into my life, my farm, my business can the government reach? The answer is almost as far as they want to. The primary tool being the Commerce Clause.
Article 1, Section 3, Clause 8 of the Constitution is the Commerce Clause. The Commerce Clause was unanimously agreed upon amongst the 13 states that the federal government should be able to regulate interstate commerce (sale of goods across state lines). Because it was unanimously agreed, they didn’t argue over it, didn’t define very much of it, and the Courts were left to figure out what they meant.
Around the time of the Great Depression the Courts began to decide and rule that the Commerce Clause was a golden ticket to Willie Wonka’s Chocolate Factory and you could do anything you wanted with it. To summarize this near carte blanche power of the Commerce Clause, there were two cases in 1937 and 1941 in which the Courts allowed the regulation of local labor practices as well as enforce hours and wages regulations. This was all under the idea that labor is “close enough” to affecting interstate commerce that the government can go ahead and regulate it. A third example of the Clause’s far-reaching power is that of a wheat farmer who exceeded his quota back in the 1930’s. The farmer argued he used the wheat on his own farm thus the government shouldn’t be able to regulate what he produces and uses internally with a law governing commerce between the states. In 1942, the Supreme Court found that his internal use may have been miniscule and not affected interstate commerce but any action which could affect interstate commerce in the aggregate (if everyone did it) then the action can be regulated.
What does all this mean for the farmer today, what are the practical implications? It means that the products you use today can be taken away. If the government wants to take away certain chemicals, they can. Limit water use, they can. Limit fertilizer, they can. Tell you what to grow, they already did and upheld it in the 1942 wheat farmer case. Agriculture today has an addiction to chemicals, fertilizer, and burning diesel. The majority of land today has very minimal organic matter and terrible soil structure which feeds these addictions. What would your farm look like if you suddenly had a strict limitation placed on the use of your chemicals? Fertilizer? Diesel? Water? These are very real concerns and considerations which farmers should be considering because the government without a doubt has the power to regulate these things and it’s only a matter of time before they have the motive.
America is full of great land and resources, but she needs maintenance. Consider whether you would prefer to regulate yourself and improve your land’s soil and reduce chemical, fertilizer, and diesel usage or would you prefer the government to step in and tell you how to do it? Either farmers figure it out on their own and begin making real changes or it’s only a matter of time before the government steps in to force their hand. ∆
ADAM BIRK: Birk Law Firm, LC