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How can the government regulate farming?

Last week was a strange one in my practice. Several clients — and non-clients — were wondering how the newly announced $12 billion farm aid package was going to be disbursed and managed. That is an easy answer: I don't know. The federal agencies who are responsible for administering the aid and providing technical assistance — the Farm Service Agency and the Natural Resources Conservation Services — don't know the answer to that question either. It's just too early in the process. We will keep an eye on that question in this column and will be in touch on specifics as they become available.

On the other hand, I had a different client come in last week asking "how is it that the federal or state government even has authority to regulate farming?" That's a good question. And the answers are not short answers.

Farming is heavily regulated at both the state and the federal government levels. Both levels of government have departments of agriculture. In North Dakota, agriculture commissioner is elected every four years. The North Dakota Agriculture Commissioner even holds one of only three seats on the state Industrial Commission, along with the governor and the attorney general. At the federal level, the Secretary of Agriculture is charged with managing a $140 billion budget in both mandatory and discretionary expenditures. The budget summary for the U.S. Department of Agriculture can be found at https://www.usda.gov/sites/default/files/documents/USDA-Budget-Summary-2....

All told, according to the book "Principles of Agricultural Law," by Roger A. McEowen, J.D., there are government programs for marketing and quality standards, inspections, animal and plant health, crop insurance, soil conservation, commodity exchanges, credit and farm financing, food production, safety, quality, livestock and stockyard regulation, irrigation regulation and export/import programs. In North Dakota, there are divisions in the Department of Agriculture for administrative services, animal health, livestock industries, pesticides and fertilizer, plant industries, and government affairs. There are more than 40 programs administered by that office, which can be found at https://www.nd.gov/ndda/programs.

Where does the authority for government regulation of agriculture come from? At the federal level, remember that the federal government is a government of limited powers. In a general sense, federal case law analyzing the federal government's authority over the past 50 years has been generally interpreted by analysis of "the commerce clause." The federal government, by our Constitution, has the authority to regulate commerce among the states and other countries, and is able to regulate any transaction that affects interstate commerce. In fact, much of the expansion of federal government authority to regulate water — remember WOTUS — derives from the proposition that "Waters of the United States" affect interstate commerce, and thus the regulation of these waters becomes a federal matter.

The federal government also has expanded its authority over agricultural regulation through "the spending authority" of the federal government. Since the federal government spends federal money on federal farm programs, it stands to reason that they have the authority to regulate the activity upon which they spend money.

One of the first federal government exercises of the spending authority that I remember is from back in the 1980s, when some states had a "drinking age" of 19, whereas others had a drinking age of 21. Now, state governments clearly have sole authority over what age minors can consume alcohol. But in the 1980s the federal government encouraged state legislatures to adopt a higher drinking age of 21, and were able to do so by asserting that federal highway funding would be withheld from states that didn't adapt to that age. This was known as the National Minimum Drinking Age Act of 1984.

At the state level, the authority to regulate is a different matter. In general, the state government has authority to regulate according to the "police power." This authority is broader than the federal government's authority, and generally applies to all attempts to regulate in order to promote the health, safety and welfare of the citizenry.

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