On Constitutional Grounds

Tenth Amendment Center: Utah Senate Passes Bill to Expand Raw Milk Sales; Important Step to Nullify Federal Prohibition Scheme

SALT LAKE CITY, Utah (Feb. 26, 2018) – On Friday, the Utah Senate passed a bill would expand raw milk sales in the state. Final passage into law would take an important step toward rejecting a federal prohibition scheme in effect.

Sen. David Hinkins (R-27) and Rep. Marc Roberts (R-67) introduced Senate Bill 108 (SB108) January 23. The legislation would expand existing laws relating to raw milk sales from producer to consumer in the state. Under the proposed law, a milk producer would be able to sell up to 120 gallons of raw milk per month to consumers without meeting stricter requirements under the current law and permitting program, providing certain conditions are met. Under the proposed law, the raw milk could only be sold directly to the consumer on the premises where the milk is produced for household use, not resale. SB108 also includes handling, sanitation and record-keeping requirements for unlicensed producers of raw milk. The milk bottle would have to include the warning “This raw milk has not been licensed or inspected by the state of Utah. Raw milk, no matter how carefully produced, may be unsafe.”

The proposed law would also allow licensed producers to sell raw milk from a mobile refrigerated truck where the raw milk is maintained at 41 degrees Fahrenheit or a lower temperature.

The Senate passed SB108 by a 21-6 vote.

An amendment approved in the Natural Resources, Agriculture, and Environment Committee stripped a provision from the bill that would have allowed licensed producers to sell raw milk at farmers’ markets.

Under the current law, raw milk sales are only allowed on the farm, or from a retail store owned by the producer under strict licensing guidelines. Passage of SB108 would relax requirements for small producers, and expand legal sales. This would allow the raw milk market in Utah to grow.

According to nofamass.org, “With a growing demand for raw milk and a decreasing number of raw milk dairies, many consumers are unable to purchase this product.”

Impact on Federal Prohibition

FDA officials insist that unpasteurized milk poses a health risk because of its susceptibility to contamination from cow manure, a source of E. coli.

“It is the FDA’s position that raw milk should never be consumed,” agency spokeswoman Tamara N. Ward said in November 2011.

The FDA’s position represents more than a matter of opinion. In 1987, the feds implemented 21 CFR 1240.61(a), providing that, “no person shall cause to be delivered into interstate commerce or shall sell, otherwise distribute, or hold for sale or other distribution after shipment in interstate commerce any milk or milk product in final package form for direct human consumption unless the product has been pasteurized.”

Not only do the feds ban the transportation of raw milk across state lines, they also claim the authority to ban unpasteurized milk within the borders of a state.

“It is within HHS’s authority…to institute an intrastate ban [on unpasteurized milk] as well,” FDA officials wrote in response to a Farm-to-Consumer Legal Defense Fund lawsuit against the agency over the interstate ban.

The FDA clearly wants complete prohibition of raw milk and some insiders say it’s only a matter of time before the feds try to institute an absolute ban. Armed raids by FDA agents on companies like Rawsome Foods back in 2011 and Amish farms over the last few years also indicate this scenario may not be too far off.

Legislation like SB108 takes a step toward nullifying this federal prohibition scheme.

As we’ve seen with marijuana and industrial hemp, an intrastate ban becomes ineffective when states ignore it and pass laws encouraging the prohibited activity anyway. The federal government lacks the enforcement power necessary to maintain its ban, and people will willingly take on the small risk of federal sanctions if they know the state will not interfere. This increases when the state actively encourages the market and nullifies federal prohibition in effect.

We’ve seen this demonstrated dramatically in states that have legalized industrial hemp. When they authorized production, farmers began growing industrial hemp, even in the face of a federal ban. Despite facing the possibility of federal prosecution, some growers were still willing to step into the void and begin cultivating the plant once the state removed its barriers.

In the same way, removing state barriers to raw milk consumption, sale and production would undoubtedly spur the creation of new markets for unpasteurized dairy products, no matter what the feds claim the power to do.

It could ultimately nullify the interstate ban as well. If all 50 states allow raw milk, markets within the states could easily grow to the point that local sales would render the federal ban on interstate commerce pointless. And history indicates the feds do not have the resources to stop people from transporting raw milk across state lines – especially if multiple states start legalizing it. Growing markets will quickly overwhelm any federal enforcement attempts.

WHAT’S NEXT

SB108 now moves to the House for consideration. It was referred to the House Natural Resources, Agriculture, and Environment Committee where it must pass by a majority vote before moving forward in the legislative process.

Mike Maharrey
February 26, 2018 at 11:42AM

Tenth Amendment Center: Iowa House Passes Bill to Expand Healthcare Freedom

From Tenth Amendment Center

...from Tenth Amendment Center

DES MOINES, Iowa (Feb. 26, 2018) – Last Thursday, the Iowa House overwhelmingly passed a bill that would help facilitate healthcare freedom outside of government insurance regulatory schemes.

The House of Delegates Human Resources Committee introduced House Bill 2356 (HF2356) on Feb. 14. It replaced HF2275 sponsored by Rep. David Heaton (R-Mt. Pleasant). The legislation specifies that direct primary care agreements (sometimes called medical retainer agreements) do not constitute insurance, thereby freeing doctors and patients from the onerous requirements and regulations under the state insurance code.

HF2356 also includes provisions defining direct primary care agreements and establishing modest requirements.

The House passed HF2356 by a 94-1 vote.

According to Michigan Capitol Confidential, by removing a third party payer from the equation, medical retainer agreements help both physicians and patients minimize costs. Jack Spencer writes:

“Under medical retainer agreements, patients make monthly payments to a physician who in return agrees to provide a menu of routine services at no extra charge. Because no insurance company stands between patient and doctor, the hassles and expense of bureaucratic red tape are eliminated, which have resulted in dramatic cost reductions. Routine primary care services (and the bureaucracy required to reimburse them) are estimated to consume 40 cents out of every dollar spent on insurance policies, so lower premiums for a given amount of coverage are another potential benefit.”

This represents the kind of cost control Obamacare promised but failed to deliver. In 2015, Tom Woods interviewed a Kansas doctor who utilizes the direct primary care model. Dr. Josh Umbehr’s practice demonstrates the cost savings possible when doctors are unfettered from the bureaucratic health insurance system.

Under Obamacare, regulations define such programs as a primary care service and not a health insurance plan, and current IRS policy treats these monthly fee arrangements just like another health plan.

A FIRST STEP

At this point, it doesn’t look like Republicans will repeal or even reform Obamacare, and the changes to the ACA proposed by the GOP would have arguably made things worse. Even with the penalty for not buying health insurance repealed by the Republican tax plan, all other Obamacare rules and regulations remain in place. Regardless, state actions can help completely bring down the Affordable Care Act, or any national healthcare plan the Congress comes up with in the future.

Oftentimes, supporters of Obamacare criticize opponents for not having any alternative. Direct primary care offers one.

These direct patient/doctor agreements allow a system uncontrolled by government regulations to develop. It makes doctors responsive to patients, not insurance company bureaucrats or government rule-makers. Allowing patients to contract directly with doctors via medical retainer agreements opens the market. Under such agreements, market forces will set price for services based on demand instead of relying on central planners with a political agenda. The end result will be better care delivered at a lower cost.

By incentivizing creative healthcare solutions, the market will naturally provide better options, such as the Surgery Center of Oklahoma, This facility operates completely outside of the insurance system, providing a low-cost alternative for many surgical procedures.

A more open healthcare marketplace within a state will help spur de facto nullification the federal program by providing an affordable alternative. As patients flock to these arrangements and others spurred by ingenuity and market forces, the old system will begin to crumble. Creating a structure for Medicaid patients to access direct primary care would likely incentivize more doctors to adopt the direct primary care model, expanding the market further.

Passage of HF2356 would take the first step toward healthcare freedom in Iowa and would create a stepping stone to further action to nullify the onerous Affordable Care act. Once in place, the people of Iowa could take further steps to fully extricate themselves from Obamacare for good.

WHAT’S NEXT

HF2356 will now move to the Senate for further consideration. At the time of this report, it had not been referred to a Senate Committee.

Mike Maharrey
February 26, 2018 at 11:35AM

Tenth Amendment Center: Today in History: The Passing of “The Chancellor,” Robert Livingston

From Tenth Amendment Center

...from Tenth Amendment Center

Today in 1813, Robert Livingston died. Known as “The Chancellor” for his position at the top of New York’s equity court, he became one of his state’s most influential politicians in an era of political upheaval.

Born into the most prominent New York family, Livingston was destined to follow a legal background. He entered King’s College in 1765 and was admitted to the colonial bar in 1770. Selected by his colonial legislature to attend the Continental Congress, Livingston found himself on the five-man committee that drafted the Declaration of Independence. While his state wavered on the prospect of independence, Livingston maintained a strong position in support.

After New York had declared independent and drafted a republican constitution, Livingston helped established New York’s legal norms as the Chancellor of New York. Under the Articles of Confederation, he served as Secretary of Foreign Affairs.

At the New York ratification convention in Poughkeepsie, Livingston maintained pragmatic sensibilities comparison to Alexander Hamilton and John Jay, but assumed a moderate position in favor of ratification. Addressing the multitude of detractors, Robert Livingston assured the assembly that the Constitution model was a republic “formed by a league of states.” Livingston strongly refuted the statements of those who denied this, saying that “the gentlemen who have spoken in opposition to me, have either misunderstood or perverted my meaning.”

He also countered the attacks regarding the power of the executive by clarifying that almost all powers resided in Congress, including powers of war, peace, and taxation. Therefore, the government could not make unlimited demands upon the states. According to Livingston, the structure and purpose of the government limited its potential to challenge the states.

After the Constitution had been ratified and when the new government went into effect, Livingston administered the presidential oath of office to George Washington at Federal Hall in New York City. After a failed attempt to win the governorship of New York, he remained Chancellor of his state until 1801.

Breaking with the Federalists in the 1790s, he opposed the National Bank, Jay Treaty, Sedition Act, and the Quasi-War. Appointed by President Thomas Jefferson to serve as an ambassador to France, Livingston was instrumental in negotiating the Louisiana Purchase in 1803. Upon the occasion, he declared that “the United States take rank this day among the first powers of the world.”

Mike Maharrey
February 26, 2018 at 11:30AM

Tenth Amendment Center: Has the Tea Party Sold Out to Big-Government Republicans?

From Tenth Amendment Center

...from Tenth Amendment Center

by Ron Paul

The recently-passed big-spending budget deal’s failure to generate significant opposition from the “tea party” has led some to pen obituaries for this once-powerful movement. These commentators may have a point. However, few of them understand the true causes of the tea party’s demise.

The movement commonly referred to as the tea party arose in opposition to the 2008 bank bailouts. The tea party grew as its focus shifted to opposition to President Obama’s policies, particularly his stimulus spending bill, cap-and-trade legislation, and, of course, the health care plan tea party leaders successfully branded as Obamacare. In its early days, the tea party was equally opposed to big spenders in both parties. In fact, it was often harder on Republicans than on Democrats. Tea party groups even backed primary challengers to Republican incumbents.

Unfortunately, the tea party was quickly coopted by the GOP. As a result, while tea party groups still opposed Republican policies, they began muting their opposition to all but the worst Republican politicians. Now that Republicans control the White House and Congress, tea party groups have even muted their opposition to the policies. This reinforces the tendency of Republicans to support spending bills backed by Donald Trump or George W. Bush that they would have fought tooth and nail if they were proposed by Barack Obama or Bill Clinton.

The tea party’s effectiveness as a force for fiscal conservatism was also crippled by the support of too many of its leaders and favorite politicians for a hyper-interventionist foreign policy. Support for foreign interventionism logically requires support for huge military budgets, which conflicts with a commitment to fiscal conservatism.

Some tea party-backed politicians tried to reconcile support for militarism and fiscal conservatism by claiming to be “cheap hawks.” The problem with this formulation is that the so-called cheap hawks accept the neoconservative premise that American exceptionalism justifies US military intervention around the globe. This makes it impossible for them to resist the calls for increased military spending to ensure the United States has the ability to police the world in the name of “democracy.”

Devotion to protecting the military-industrial complex from the budget ax leads defense hawks to cut deals with progressives to increase spending on both warfare and welfare. We saw this with the recent budget deal, where so-called fiscal conservatives defended a $65 billion increase in domestic spending because it was necessary to get progressive support for an $80 billion increase in military spending. One cannot be both a budget hawk and a defense hawk.

Fortunately, while the tea party is dead or at least on life support, a related movement is alive and growing. This is the liberty movement that grew out of my 2008 presidential campaign. Ironically, one of the first events of that movement was called a “tea party.”

Unlike the tea party, the liberty movement does not just focus on domestic policy. It works to roll back government in all areas. Thus, the liberty movement is just as committed to ending unnecessary and unconstitutional wars and protecting civil liberties as it is to repealing Obamacare. Liberty movement leaders and activists also refuse to compromise their principles for the benefit of the Republican Party. The commitment to consistency and principle may be why the liberty movement is so attractive to young people. This growing movement is a source of hope that the cause of individual liberty, free markets, and limited government will prevail.

Tenth Amendment Center
February 26, 2018 at 11:11AM

Tenth Amendment Center: “But nullification isn’t listed in the Constitution!”

From Tenth Amendment Center

...from Tenth Amendment Center

TAC memberships help us produce more educational tools like this. Members can download this video and read the full transcript here.

Every once in awhile, someone tells us, “The Constitution doesn’t say anything about nullification. That means states simply can’t do it.”

But they’ve got things totally backwards.

FOLLOW TAC:

YouTube: https://www.youtube.com/user/TenthAmendmentCenter
RSS: http://feeds.feedburner.com/tacdailydigest
Twitter: http://twitter.com/tenthamendment
Facebook: https://www.facebook.com/tenthamendmentcenter
Instagram: https://www.instagram.com/tenthamendmentcenter/
Email Newsletter: http://tenthamendmentcenter.com/register
Become a Member: http://tenthamendmentcenter.com/members/

Michael Boldin
February 26, 2018 at 08:25AM

Tenth Amendment Center: Podcast: Ideology and the Constitution

From Tenth Amendment Center

...from Tenth Amendment Center

After a seven month hiatus, Thoughts from Maharrey Head is back with episode #100!

We all have ideologies. They help us make sense of a complex world and provide us with a lens through which we can evaluate events. But ideologies can get us in trouble when we become unable to look outside of them. In this episode, I talk about the problems that inevitably crop up if you try to project your ideological point of view on the Constitution.

I also catch you up on what’s been going on over the last seven months and make an announcement about an exciting project I hope to release this spring.

You can subscribe to Thoughts from Maharrey Head for free on iTunes. Just click HERE.

SHOW NOTES AND LINKS

SchiffGold Friday Gold Wrap Podcast

Constitutional Interpretation – Living and Breathing is Dead

Crisis and Leviathan by Dr. Robert Higgs

Mike Maharrey
February 25, 2018 at 01:24PM

Tenth Amendment Center: Four Steps Toward Following Jefferson and Madison Today

From Tenth Amendment Center

...from Tenth Amendment Center

From the beginning of our history, there have been many people such as Nathaniel Bacon, Tomas Jefferson, James Madison, President John Tyler, John Calhoun, John Taylor of Caroline and the Richmond junto who have championed the idea of nullification. Today, we look back through time and wonder how we can follow in the footsteps of those people even with this monstrous national government that’s grown exponentially since constitutional debates of 1787.

Hamilton was one of the first to spread an infectious disease called misconstruction. During speeches made in 1787, he argued for an elected king, and lifetime senators, thinking it would prevent usurpation of power. But a national government and a federal Republic can’t exist on the same foundation. The latter consists of the states and their constituents as a check and balance, and the former consisting of the people of the whole along submitted to pure majority rule and public opinion. Madison even said “a federal Govt. derived its appointments not immediately from the people, but from the States which they respectively composed,” meaning the states are in fact the only part of the compact needed to prevent the usurpations of power.

And who makes up the states?

We do!

The role of the states in the constitutional system was debated during the Philadelphia Convention. In fact, the delegates discussed whether the states should serve as a check and balance on the general government. Mr. Dickenson, of Delaware, illustrated the issue using the example of the sun and planets, basically saying you can’t take the states out of the picture otherwise the sun will cease to exist.

Within a few years after the ratification of the Constitution, the usurpation of powers had already started to take place. Jefferson and Madison went to work trying and stop these unconstitutional power grabs. Even though Madison was a nationalist during the drafting of the Constitution, he believed strongly that the delegated powers of the Constitution as ratified created a limited general government. In 1798, Jefferson and Madison wrote “The Kentucky and Virginia Resolutions of,” laying out the principles of nullification as a refusal to cooperate with the unconstitutional Alien and Sedition Acts.

The Alien Acts were an unconstitutional power grab going strictly against Article 1 Section9 Clause 1 stating “The Migration or Importation of such Person as any of the states now existing shall think proper to admit, shall not be prohibited by the Congress prior to the year one thousand eight hundred and eight, but a tax or duty may be imposed on such Importation, not exceeding ten dollars for each person.” Effectively they were saying, “No!” to the general government through means of nullification/refusal, because it was unconstitutional for the general government to come in and snatch people out of the state if the people of the state allowed them to be there.

Jefferson started off the Kentucky Resolutions with Resolved 1, stating “They constituted a general government certain definite powers, reserving, each state to itself, the residual mass of right to their own self-government; and that whensoever the general government assumes in delegates power, its acts are unauthorized, void, and of no force…” Asserting that if the general government was going to try and usurp powers, it’s up to the people of the states to stop them.

In the Virginia Resolutions, Madison wrote that a state was “duty bound” to “to interpose for arresting the progress of the evil” when the general government overstepped its bounds

You might ask yourself currently how you can be like Jefferson and Madison in this crucial time of extreme usurpation of powers.

There are four steps you can take.

The first step is reading and understanding the Constitution. Knowing the enumerated powers in Article 1 section 8 is a great start. Ask yourself: just what powers did the states delegate to the general government? Then look at Article 1 section 10 to understand the negatives on the states. What can the states do? What can’t they do? Then repeat the 10^th amendment many times. “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

This serves as the foundation for where to start in this modern era, if we bring back this idea of nullification and restore power back to the states we can slowly crush this giant we are up against.

The second step is getting rid of the notion of party politics or majority rules. The parties have worked long and hard to deceive and divide us. If we fall in line with corruption, we only vote to despise each other and make it known that we voted in favor of our interest or the party interest. John C Calhoun said when addressing the second commission of the Bank of United States that “I am a partisan of no class, nor, let me add to either political party. I am neither of the opposition nor administration. …..” Calhoun was a strict constructionist, voting only for the Constitution. We, as constituents of the state, should vote only in favor of the Constitution and only by the Constitution. Let us fill in this hole that’s been dug.

The third step is to get very active at the local level. Know what’s going on in your own state. Brion McClanahan coined the phrase “Think Locally, Act Locally,” which is the strongest card we have today. We don’t need to worry about what’s going on in any state other than our own. You don’t need to worry about Washington D.C. Control your state and push legislation to nullify unconstitutional federal acts.

The fourth and final method is to defund the Treasury and nullify the Federal Reserve. Hamilton’s bank set things in motion. President Lincoln put a nail In the coffin with the “Legal Tender Act of 1863” and “The Legal Tender Act of 1864,” giving the government the ability to print money and control currency by levying a 10 percent tax on state bank notes. It was unconstitutional to create national paper money and incorporate a national bank in the first place. It also gave the federal government the ability to bring about inflation, debt, bankruptcy, loans, and economic instability. There are four strategies states can take to nullify the Federal Reserve’s monopoly on money. By encouraging the use of gold and silver, we can undermine Federal Reserve notes and ultimately nullify the Fed.

The general government has grown into a behemoth that even Hamilton could have never dreamed of. It inserts itself into every nook and cranny of our lives. It even dictates how much water we can have in our toilets.

Utilizing these four steps, we can reclaim the spirit of Madison and Jefferson, and put the federal government back into the limited box it was intended to operate in.

JP
February 25, 2018 at 01:20PM