Category Archives: Commerce Clause

The Nanny State Invades The School Cafeteria

Commerce Clause, Constitution, Federalism, The Nanny State

Today’s New York Times reports that the Senate is about to consider a proposal to ban candy, soda, and fatty foods from the nation’s school cafeterias:

Federal lawmakers are considering the broadest effort ever to limit what children eat: a national ban on selling candy, sugary soda and salty, fatty food in school snack bars, vending machines and à la carte cafeteria lines.

(…)

The nutrition standards would allow only plain bottled water and eight-ounce servings of fruit juice or plain or flavored low-fat milk with up to 170 calories to be sold in elementary and middle schools. High school students could also buy diet soda or, in places like school gyms, sports drinks. Other drinks with as many as 66 calories per eight ounces could be sold in high schools, but that threshold would drop to 25 calories per eight-ounce serving in five years.

Food for sale would have to be limited in saturated and trans fat and have less than 35 percent sugar. Sodium would be limited, and snacks must have no more than 180 calories per serving for middle and elementary schools and 200 calories for high schools.

And to make the blow against Federalism even more pronounced:

Although states would not be able to pass stronger restrictions, individual school districts could.

Can someone please point me to the portion of Article I, Section VIII of this document that gives Congress the authority to decide what appears on a child’s lunch tray on a daily basis ? Yes, I know that Congressional power has expanded far beyond where it was intended but there are times when the grab for power is so egregious and unauthorized that it becomes, for lack of a better term, galling.

But will the American people protest ? Will they flood Congressional phone lines in protest of this latest invasion of the nanny state into their lives ?

My guess is that, for the most part, the answer to those questions will be no. For the most part, Americans will look upon this as a good idea and will thank their enlightened leaders in Washington for telling them what their children should eat because, you know, we’re all too stupid to figure that out.

H/T: Cato@Liberty

Doug Mataconis
http://www.belowthebeltway.com

The Supreme Court’s Abortion Decision And Federal Power

Commerce Clause, Constitution, General

Today, the Supreme Court upheld a nationwide ban on the controversial abortion procedure that has come to be called “partial birth” abortion:

WASHINGTON — The Supreme Court upheld the nationwide ban on a controversial abortion procedure Wednesday, handing abortion opponents the long-awaited victory they expected from a more conservative bench.

The 5-4 ruling said the Partial Birth Abortion Ban Act that Congress passed and President Bush signed into law in 2003 does not violate a woman’s constitutional right to an abortion.

The opponents of the act “have not demonstrated that the Act would be unconstitutional in a large fraction of relevant cases,” Justice Anthony Kennedy wrote in the majority opinion.

The ruling is narrow, and it is significant in that it is the first Supreme Court ruling that deviated significantly from the precedent set in Roe v. Wade.

Now, I’m not writing here to debate whether the Court was right or not, or whether this particular abortion procedure is right or now. What I find interesting is the one question that the Court did not touch on — what authority does the United States Congress have to regulate a medical procedure? If a woman has an unplanned pregnancy then she should have every right to decide if she wants to have an abortion or not, as it is her body, no one else’s. There is plenty of guidance around abortion as well (just check out something like this Portland abortion clinic information here). So it’s not exactly hard for women to find what they are looking for. But going back to my original question, what authority does the United States Congress have to regulate a medical procedure?

Congressional authority derives solely from the power granted by Article I, Section 8 of the Constitution. Nowhere in there, of course, will you find a provision that gives Congress the authority to regulate the practice of medicine. So where, you might ask, does Congress claim the authority to regulate an abortion procedure ? From these words:

To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;

Yes, the Commerce Clause, which the Supreme Court has interpreted so loosely that it has gone far beyond the point where it actually imposed any limits on Congressional authority. For example, in 1942, in Wickard v. Filburn, the Supreme Court ruled that a farmer who grew wheat on his own land for his own consumption affected interstate commerce and was therefore subject to the regulations of Agricultural Adjustment Act of 1938. Once that happened, the door was open to allow Congress to use the Commerce Clause to justify extensions of Federal power into areas that the Founding Fathers would never have conceived it would be exercised.

The post-Wickard history of the Commerce Clause has been one of expanding federal power and increasing regulation of activities that have only a tangential relationship to interstate commerce. But there have been some bright spots recently.

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Doug Mataconis
http://www.belowthebeltway.com
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