About Obamacare, House Speaker Nancy Pelosi famously said, “We have to pass the bill so that you can find out what is in it.” Nearly five years after the bill passed, we are still finding out. The latest product of Obamacare is a new rule issued by the Food and Drug Administration that requires sellers of prepared foods to include calorie counts on menus. Some observers expected the rule to affect only restaurants, but as noted by Daren Bakst at dailysignal.com, the FDA ended up writing the rule broadly enough to include even hot dogs sold at convenience stores and popcorn sold at movie theaters.
Instead of covering just restaurants and businesses that are “similar retail food establishments,” the FDA decided to ignore the word “similar.” Under the proposed rule, grocery stores and convenience stores were also covered under the rule. For example, a convenience store whose floor space is 99 percent devoted to packaged goods would still be included if it sells prepared hot dogs. That 1 percent makes the entire business operation similar to a restaurant, at least from the FDA’s perspective.
No reasonable person would confuse such a business with a restaurant or similar retail food establishment. If Congress wanted to cover such businesses, they could have just covered all retail food establishments that sell prepared foods.
The final rule has taken this FDA power grab to a whole new level. The FDA is now requiring more businesses to comply with the law, such as movie theaters and bowling alleys.
Let’s leave aside, however, the FDA’s broad interpretation of the statute. Let’s also not dwell on whether the rule will succeed in getting Americans to eat healthier. We doubt it will help much, but we’re more concerned with a different issue. The question we want to ask is: Where does Congress derive the Constitutional authority to tell restaurants how to write their menus? Where among Congress’ enumerated powers does it say that Congress can regulate a menu?
Back in the 1800s, when a member of Congress would propose legislation, he would make a lengthy speech on the floor of Congress. Typically, the member’s speech would include a long argument, perhaps as long as two hours, for why the bill was constitutional. Everybody in those days just took it for granted that legislation always had to be justified on constitutional grounds.
These days, not so much. As noted by Lyle Denniston of the National Constitution Center, neither legislators nor FDA bureaucrats offered constitutional justification for the menu rule.
The announcement, though, came with hardly any justification of its constitutional authority to do that. The FDA clearly operates on the assumption that it has authority from Congress to do what it is doing, and thus silently assumes that it must be acceptable under the Constitution’s Commerce Clause. The agency noted that it has had authority from Congress since 1990 to require nutrition labels on food, and that the Affordable Care Act extended that authority to restaurant menus and vending machines.
The FDA, no doubt, is convinced that it is not substituting its regulatory judgment for the tastes of the American food consumer. But of such assumptions is constitutional controversy born.
The Commerce Clause, however, grants Congress the power to regulate commerce “among the several states”; that is, commerce that is interstate, not intrastate. For instance, back when the Civil Aeronautics Board used to regulate airline fares and routes, the CAB could not regulate airlines that flew only intrastate, nor could the CAB set fares for intrastate routes. The CAB therefore did not, for example, set fares between Los Angeles and San Francisco.
Due deference to the Commerce Clause suggests, at minimum, that FDA can regulate only restaurant chains that operate across state lines. Yet the FDA’s rule is apparently not so limited.
The new menu rule is just the latest example of Obamacare’s architects acting as if they can make any rule they want, unrestrained by the Constitution. A few years ago, when a reporter tried to ask Speaker Pelosi about the constitutionality of Obamacare’s individual mandate, she refused even to acknowledge the legitimacy of the question. “Are you serious? Are you serious?” she repeated incredulously.
Hey, we’re not asking for a two-hour speech in flowery 19th century language, but at least acknowledge the legitimacy of the question.
The official name of Obamacare is the Affordable Care Act, or ACA. Given the legislation’s multifaceted affronts to the Constitution, the ACA should more appropriately stand for Anti-Constitution Act.