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Economic destruction by Commerce Clause – farm equipment edition

Economic destruction by Commerce Clause – farm equipment edition

One of the great unwritten stories of the damage to the economy from team Obama is the relentless attempt to regulate areas that have not previously been regulated.

The health care mandate received a lot of attention and breaks new ground, but there are countless other areas that mostly fly under the popular radar.

Thanks to reader Danelle from Texas for forwarding this article to me about the Obama administration’s attempt to force local farmers and ranchers to obtain commercial long-haul licenses:

Tractors lumbering down country roads are as common as deer in rural Montana, but the federal government wants to place new driving regulations on farmers and ranchers.

“It’s a huge deal for us,” said John Youngberg of the Montana Farm Bureau. After years of allowing state governments to waive commercial driver’s license requirements for farmers hauling crops or driving farm equipment on public roads, the Federal Motor Carrier Safety Administration is poised to do away with the exceptions.

Regulators are suggesting that all wheat shipments be considered interstate, even when farmers making short hauls to local grain elevators aren’t crossing state lines. The change would make commercial driver’s licenses — and all the log books and medical requirements that go with them — a necessity for farmers. Some might not qualify.

The licenses would also be required of farmers driving farm equipment down public roads. Farmers hauling grain for a neighbor or landlord would be considered commercial drivers hauling for someone else.

Ranchers hauling livestock in trailers as small as 16 feet would also be subject to the new rules…

Traditionally, farmers driving farm machinery have been exempt from commercial driver’s licenses, as have farmers hauling wheat, provided they didn’t cross state lines and traveled no farther than 150 air miles to the elevator.

It just never ends. And the rationale sounds very familiar:

FMCSA argues that because grain will ultimately be shipped out of state, it  should be regulated as an interstate product at every transportation step.  Treated as a product destined to cross state lines, grain becomes federally  regulated under the commerce clause of the U.S. Constitution.

Update:  I really should have focused on the destruction of a way of life, not just economic destruction.  Danelle futher e-mails:

This is regulation on a very personal level to those of us living anywhere in the west.  While the bigger impact will be on full time farmers and ranchers, even more of us use the same equipment to transport our horses to rodeos, playdays, or safely down the road to the next pasture.  We help our kids haul their livestock projects to County Fairs and Major Livestock Shows.  Trailers are used to haul not only farm equipment but a they get things like welding rigs and generators to rural job sites (think oil rigs here).  They’re also used in recreation for transporting bikes, quads, dune buggies and dirt track race cars safely to their destinations.

As an aside, last week, the boys and I were driving back to El Paso County from
San Antonio (600 miles of mostly unpopulated desert).  I wondered how someone
like Obama would handle being dropped in the middle of that territory in a Chevy
Volt on one of our 110 degree afternoons.  Just one section of I-10 is 105 miles
between towns with some very tough hills to get up.  And in case you’re worried
about whether today’s youth will be standing up for the 2nd Amendment, we were
on our way home from 8 days at the Texas 4-H Shooting Sports games where over
2300 youths ages 8-18 competed in 43 disciplines including pistol, rifle, bows
and shotgun.

Wow, things really are bigger in Texas.


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Wow, with that logic, the government can just about make any and all planting decisions as the wheat will eventually be interstate product. For that matter they can control the whole farm.

I hate it when I get behind a tractor. Yes, Virginia we have farms in W. Mass largely settled by Polish immigrants generations ago. They won’t obey the new regulations and the local authorities won’t enforce them.

I’ll still hate it when I get behind a tractor, but I’ll have new respect for them.

2nd Ammendment Mother | August 2, 2011 at 5:48 pm

Craig Morgan says it well:
“Well you may be on a state paved road
But that blacktop runs through my payload
Excuse me for tryin’ to do my job
But this year ain’t been no bumper crop
If you don’t like the way I’m a drivin’
Get back on the interstate
Otherwise sit tight and be nice
And quit yer honkin’ at me that way”

The legal argument is nothing new, the floodgates for this sort of federal usurpation of states’ rights opened with Wickard v Filburn.

Check this out:

They successfully argued that a farmer growing a crop to feed to HIS OWN pigs could be regulated by the federal government under the commerce clause because, by growing his own crop he was reducing the amount he might otherwise have bought on the open market, some of which might have come from out of state.

That was in 1942. Little has changed. In 2002 in Gonzales v Raich, see here:

The federal goverment successfully argued that it could make Marijuana growing, even on your own property for your own use, illegal despite the fact that the person was living in a state (CA) where it was legal to do so because it affected interstate commerce. That’s right, Commerce Clause again. By growing his own weed and smoking it himself, he was reducing the amount of weed he would have bought illegally from Mexico.

You can’t make this stuff up. If you were to write such things in a novel, as fiction, no one would read it because no one could possibly believe in a society where such things could be possible.

Basically, since FDR, statists have been stretching and twisting the Commerce Clause in every imaginable way so that the federal government has unlimited power and the 10th Amendment is meaningless. There is now nothing reserved to the States and the People, the feds can legislate on absolutely everything. This is why, when asked the Constitutional basis for Obamacare, Pelosi replied “are you serious?”

    groundhogchick05 in reply to Aarradin. | August 2, 2011 at 7:16 pm

    I would support any candidate who would propose the following: Limit all federal judges (SCOTUS included) to using only: 1)the Constitution, 2)Federalist papers(or congressional records and debates for later amendments) when judging and forming written opinions.

    A judge’s ideology and own opinion should be completely left out of the law! They were not made to be little kings and queens over us! I was actually surprised to learn a couple of weeks ago, that the Supreme Court originally had no building all to themselves. They would meet in libraries, basements, the Capitol, etc. to hold court. It was basically a boring, tedious job! The Founders never expected the Supreme Court to have as much power as they do today. In the 1930’s they finally gave them a building to call home. Say, isn’t that when judicial hell broke loose? Hmmmm….Maybe a trip back to the basement is in order…

In recent years, commerce to Congress and SCOTUS has become more about inner state than interstate. The administration is just taking the esoteric interpretations to their logical conclusion for more money and control.

Anyway, the ideal American prole whom the Left champions has been updated from the poor rural hero of the New Deal to a disaffected city dwelling type. They don’t understand those boots-wearing pick-up driving farmers or ranchers who make, who try hard to make and often don’t, money off of Gaia.

    Nemo's omen in reply to Nemo's omen. | August 3, 2011 at 10:41 am

    [above “inner state”: as in between the ears intellectual contortions and passing fancy, not within state boundaries or “intra” state]

Update:   I really should have focused on the destruction of a way of life, not just economic destruction. Danelle futher e-mails:..

See also this link to a KXXV report I saw a few days ago over at the UrbanGrounds blog which highlights the consequences to farmers of this type of meddling by the USDOT.
OT:   Cool!   There’s a ‘Preview’ button now.   Thanks Prof!

“Treated as a product destined to cross state lines, grain becomes federally regulated under the commerce clause of the U.S. Constitution.”

This is a descendant of the horrible Wickard v. Filburn decision (1942), in which the SCOTUS found the Commerce Clause allowed regulation of economic activity that took place not only wholly within a state, but wholly on a single farmer’s property, opening the floodgates to increased federal regulation under the guise of “interstate commerce.” It really is one of the worst non-civil rights decisions the Court has ever made, and amending the Commerce Clause to more tightly define it should be a goal of any new conservative Congress.

    William A. Jacobson in reply to Phineas Fahrquar. | August 2, 2011 at 6:19 pm

    It doesn’t look like the Obama administration is breaking new legal ground unlike the health care mandate,, but it is breaking new ground in actually proposing regulations. Just because you can regulate something doesn’t mean you should regulate it — a concept completely alien to the current administration.

groundhogchick05 | August 2, 2011 at 6:41 pm

I honestly wish the Supreme Court would put the original meaning of the Commerce Clause back the way! Can’t they see this is getting totally outrageous?! In fact, I believe that Wickard v. Filburn is the tumor that ails our country. Once that ruling is overturned, all of this stupid spending and these harmful regulations would cease because the government wouldn’t have the power to get in everybody’s business!

    If the courts won’t overturn it, we could use a Constitutional Amendment to eliminate or at least strictly limit it.

    The left is infitely more adept at using the courts to advance their ideological agenda (most of which couldn’t pass a state legislature even if it was dominated by Democrats). We need to become much more aggressive in pushing to overturn terrible SCOTUS decisions. Hopefully, Obama’s legacy will be sufficient to result in a couple decades of Republican Presidents (this, btw, is my consistent argument against anyone that mentions the possibility of O not surviving his term. This would be a disaster. Far better to vote him out and honestly appraise his catastrophic policies than to have the hagiography that accompanied FDR’s demise similarly applied to Obama. We need him and his policies discredited – by their own failure).

    My understanding of its original intent was that it arose out of desire to give the national government authority to prevent internal trade wars. Like the one between NY and NJ involving tolls on ferries crossing the Hudson. They also had the example of Europe, particularly the fractured German territories, where each one had tolls and tariffs on roads and waterways at the edge of their territory.

    A good use for the Commerce Clause today, under its original intent, would be for Congress to pass a law saying that States may not have laws preventing their citizens from buying health insurance across state lines. Those are clear internal barriers to free trade that the Commerce Clause was meant to empoyer the feds to destroy.

    They might also pass a law saying that tolls on toll roads must be used to maintain only that road. This would stop states like MD and DE from fleecing out of state travellers on I95 that are merely passing through their state.

    In order for the Supreme Court to overturn a ruling, I think somebody (with standing) has to sue someone, or the government. I’m not a lawyer, so I don’t know for sure. But if it requires a case or lawsuit started in lower court, who would do it, and on what grounds? I wish someone would start the ball rolling (on this and other decisions that need to be reviewed.)

2nd Ammendment Mother | August 2, 2011 at 6:48 pm

I think you guys are getting too hung up in the detail of “hauling wheat” and the commerce clause. The new rule is targeted at hauling loads of any type. What type of vehicles are used to haul trailers of all types? Why that would be the heavy duty series of very popular pick up trucks that are considered “nasty gas guzzlers”. Therefore, if you’re not allowed to haul a heavy load, you won’t need a heavy duty truck and then you too can drive a Prius. If you can’t take your horse to the vet – well, PETA didn’t think you needed to own a horse anyway.

    Then there’s the guy being harassed by the government for raising rabbits. “Livestock”. How long until your family pet is declared livestock and driving it to the vet requires a CDL?

As a key member of one state’s contribution to the national effort in 1988 to create the Commercial Driver License classification and laws that made sense and would get the job done – everywhere [no small matter, btw] farmers and ranchers were NEVER considered in the mix because they were known to be exempt. And would always be exempt. Transportation is not one size fits all, nor are current laws adequate to accommodate farmbelt needs. Accordingly, standards and criteria established for long haul and local trucking will never completely accommodate agricultural needs. Attempting to rope them in now is like fitting a round peg into a square hole, and makes just as little sense.

But then idiots making those decisions don’t know what they don’t know, so we’re once again at the mercy of the “unknown unknowns” stage. What a sloppy way to distribute governance.

I know of no stats or datasets in existence that would compel this move, btw, so to me it reeks of political payback to perceived administration “enemies”, IMO.

“FMCSA argues that because grain will ultimately be shipped out of state, it should be regulated as an interstate product at every transportation step.”

What if there’s a fire and a shipment is destroyed before being shipped out of state? Are regulations retroactively removed?

What if only a portion is to be shipped out of state, with the rest being turned into bread to be sold locally? Just for the sake of argument, let’s say 80% out of state, 20% in state. Does that mean the regs only apply during 80% of the trip? or to only 80% of the vehicle?

This is the absurdity that results when you engage in regulation for the sake of regulation.

    Aarradin in reply to irv. | August 2, 2011 at 7:20 pm

    If it is in any way conceivable that the activity could ever, in any way, affect interstate commerce, they’ll rule that the Commerce Clause grants the federal government the power to regulate.

    Remember, it doesn’t have to make sense and the real-world consequences are irrelevent. The point to the exercise is to grant the federal government power that rightfully belongs to the States. Any argument will do, and the more convoluted the better.

The States need a meaningful voice. The Senate was supposed to do this, now they are just entrenched representatives with a longer term.

Interstate Commerce should mean a *single* transaction that crosses State or International borders. The Feds should have *no* power before or after that transaction is arranged and executed. Only in the how/when that step takes place.

The interpretation that we are now operating under has had a severe eroding effect on economic liberty and the Sovereignty of the States.

    iconotastic in reply to Steve. | August 3, 2011 at 10:09 pm

    It is all about power. The SCOTUS is as corruptable as any other institution. Power is never given away, it is always taken by an opposing force.

    There is no opposing force to the federal government any longer. Senators no longer represent states so states are becoming mere municipalities to the federal monster.

    The only possible peaceful solution is a Constitutional Convention. No amendment can resolve the utter disregard the SCOTUS has had for a plain reading of the Commerce Clause. And any amendment that focused on the Commerce Clause would just be circumvented by the same power center that originally destroyed the 10th Amendment and made the Commerce Clause the joke that it is right now.

    Power needs to be returned to the states in a constitutional manner. Somehow the federal government must be muzzled and hobbled.

I showed this story to my 78 yr old hired man and he just shook his head and laughed. “Damn fools”, who plans on coming out here and finding me out back to check my license?” He’s the same guy that gave my 5 yr old her fist little pocket knife to take to school to cut her apple for lunch. When I explained to him she couldn’t take it, it was a weapon…again, “well how’s she suppose to cut her apple?” There is no liberty or simplicity is this over regulated matrix we are currently calling life in America.

Cowboy Curtis | August 2, 2011 at 9:08 pm

Everyone is missing the point. These are yucky Christianists who live in the whited and unexplored flyover regions of the map, clinging bitterly to their guns and religion, voting for Republicans as well as other unsavory practices that retard the great progressive solution. These savages must be brought to heel, for the sake of the country, for the sake of the world! My God, man, most of them don’t even eat arugula! Our ancestors could sit back and rely on smallpox and typhoid to do the dirty work and destroy their enemies, many of whom once lived in these Gaia-forsaken regions, but we have no such luxury. So we shall have to roll up our sleeves and regulate these barbarians into submission.

    This is a direct attack on family farms and ranches, in other words, an attempt to rid Big Gov’t of independent, self-sufficient people who not only don’t rely on Big Gov’t for their survival, but who also are well acquainted with the benefits of those great threats to the Progressive utopia: “guns and religion.” In this political climate, attacks on family farms are just another way of undermining the 1st and 2nd amendments.

Unfortunately the Public Comment period closed yesterday on this regulation, but it still might not hurt to send them something. Comments can be sent to www . regulations . gov and should include the number FMCSA-2011-0146.

Voting for Democrats should be illegal under the Commerce Clause.

This is not by accident and there is virtually no limit to the destruction they will cause to advance their cause.

Fining people $4,000,000 for selling $4,000 of bunnies, and $535 for saving a wounded woodpecker are just the tip of the iceberg.

I wish I were making this up…

@ malclave. Under the new Commerce Clause only the dead and transitory workers are permitted to vote, so no problem.

@ 2nd Ammendment Mother. Those are usually called “hot shot” rigs and subsequent laws [to the original federal mandate] pretty well corralled then in the higher density states. But you are right. They still run free and loose in “flyover” land.

The federal government owns nearly 650 million acres of land in the USA. That is about 30% of all land in the United States.

Even if the federal government could sell every acre of land (not realistic) for $500 an acre (not a realistic price) it would only raise $325 billion.

If the federal government really has 261 million ounces of gold, it is worth about $430 billion at current prices.

If the feds sold all our land and all our gold it would fund the government for less than 4 months at current spending levels.

Anyone still think Congress solved our problem?

Who says America isn’t bankrupt…

1. As with most regulations, big business can afford the cost more easily than small business.

Presumably, Big Agriculture wouldn’t mind seeing the country’s remaining small farmers go under. I’m not asserting that Big Agriculture surreptitiously lobbied for these regulations, but I won’t be dumbfounded if that turns out to be the case.

2. Once the regulations take effect, hey presto, instant crime wave in flyover country! The Agriculture Department will need additional staff to enforce the regs. What politician will be unwilling to Give Law Enforcement the Tools It Needs?

[…] massive expansion of the public sector has had consequences for the economy, that the intrusions into markets have created disequilibrium and uncertainty, and that the “stimulus” has been wasteful […]

This is not simply an attack on the family farm, it is an attempt to create another protected class of worker, one entirely beholden to the Federal government for their job. Few farmers are going to jump through all of the necessary hoops. Instead they’ll contract out and those contract drivers will know EXACTLY where their jobs came from.

Creeping statism, smiley faced fascism, it’s all the same. The progressives want to be the only game in town.

[…] Economic destruction by Commerce Clause – farm equipment edition […]

2nd Ammendment Mother | August 3, 2011 at 11:54 am

There’s always a bigger picture, including the Food Safety Act which placed mountains of new regulation on small farmers and the EPA’s proposal to fine farms and ranches for creating “too much dust”.

[…] Story #2 is of how the Federal Government is sticking its nose into the daily workings of our Farmers. Economic destruction by Commerce Clause – farm equipment edition […]

eaglewingz08 | August 3, 2011 at 7:54 pm

I guess Obama is writing off the mid west, the southwest, the south, and is just going to go coastal in 2012. I wonder how that will work out for him.

[…] Jacobson (who was kind enough to make this site his “Blog of the Day” today) draws our attention to the facts: Tractors lumbering down country roads are as common as deer in rural Montana, but the […]

[…] reduced output, and increasing offshoring of business.  Now America’s farmers and ranchers are joining them in loud […]