Law For Food: The law affects what you eat. What you buy to eat affects the law.

On the Congressional power to regulate vending machines.
4 December 2007, 1:07 am
Filed under: Economics of Eating, Ethics of Eating, Farm Bill, Food Policy, Subsidies

Andrew Sullivan asks, “Since when did the federal Congress have the right to micro-manage what school-kids get from snack machines?”

Since at least 1933.

I know he was probably being rhetorical, but I’m guessing that the
Cato-at-Liberty article to which he links is actually being disingenuous when they point out that nowhere does the Constitution say “Congress shall have the power … to hector schools about the contents of their vending machines.” In fact there is such a power.

Since the legislation to limit the contents of vending machines is attached to the 2007 Farm Bill, I’m guessing that this proposal is somehow tied to the spending power, which SCOTUS has found to be pretty near infinite. In United States v. Butler (1933) the Court adopts the Hamiltonian position that congressional spending power is a free-standing power among the powers enumerated in Article 1 § 8 of the U.S. Constitution. That is to say, Congress may tax and spend for any purpose that it believes serves the general welfare. If the proposal makes certain federal spending contingent upon the states’ compliance with a rule about, e.g., what goes into their school’s vending machines, it’s lawful under Butler, and is in a vein of thinking that goes right back to the founders themselves.1

Ordinarily I wouldn’t write a letter like this to address what I suspect is a rhetorical question, but this one kind of got under my skin: Mr. Sullivan often writes hopefully of the transformative nature of the Paul and Obama campaigns, and I am disappointed to see him occasionally fall into the same tired narratives of government intrusion and nanny-statism. I don’t think this narrative applies: there’s no time-honored tradition or civil right to sell candy to kids in school vending machines. The practice is itself an innovation of the past few decades, and it is not unconservative (as Sullivan defines the term, if I understand him correctly) to discover that innovations require modification.

Moreover, the proposal takes place in the context of a vibrant debate about the nature and extent of U.S. farm subsidies. For instance, it is not controversial to note that subsidies distort market behavior. It is hardly controversial to point out that the farm subsidy shifts the costs of raw inputs such as corn syrup and high-fructose corn syrup from the consumer onto the taxpayer. The net effect is that Americans are able to purchase more calories for their retail dollar, particularly in the form of processed foods containing lots of fat and high-fructose corn syrup: in essence, U.S. taxpayers are paying to create the conditions for our own health and obesity crisis.

Seen in this light, the proposal is an attempt to correct a situation Congress has created. I might agree with Mr. Sullivan that Congress shouldn’t do this, but I am more inclined to say that Congress shouldn’t have to do this.

Update: A reader points out that no discussion of the Congressional spending power is complete without at least the mention of South Dakota v. Dole, which lays out four requirements which limit the spending power as a conditional tool to compel state action, albeit in a largely theoretical manner. The four requirements are: the condition must 1) promote the general welfare, 2) be unambiguous, 3) relate to a federal interest in national projects and programs, and 4) not fall afoul of other constitutional provisions (e.g., it is theoretically possible to condition spending in such a way as to violate, say, the equal protection clause: such a conditioning would be unconstitutional.)

If this had been a legal argument, I would certainly have been expected to address Dole, however it doesn’t seem to me that this spending proposal fails any of the Dole requirements. Moreover, my understanding from ConLaw is that the spending power is more or less unrestricted save in theory, and that as a result conditional spending is almost never challenged.


3 Comments so far
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I’m a bit confused about the term “conservative.” You say that getting rid of school vending machines is not unconservative; I think that it is distinctly and affirmatively conservative.

Seems to me that conservatives prefer to keep things the way they are–things should be protected from change. Normally, this aligns with the libertarian perspective, because our society has long held free market beliefs and so the things being protected by conservatives are the things that have been established under libertarian views. This contrasts with liberals, who afford tradition little precedential value and generally equate change with improvement.

Now, when something comes along and changes things–say, a Farm Bill that encourages vending machines in schools–one would expect different reactions from the different schools of thought. Libertarians, of course, won’t argue with the effect but with the cause: the Bill’s manipulation of the market is the issue, and trying to fine-tune the problems isn’t going to make those problems go away. Liberals would be happy to meddle, seeing vending machines in schools not as a problem but as an opportunity to genuinely enhance the diet of children–perhaps by dispensing magnetized bracelets and fish oil capsules rather than chips and cola. I don’t think that is controversial.

But what would conservatives do? Well: conserve. Protect the way things are. Conservatives see a change, and, unless convinced it is a change for the better, they try to get rid of that change and make things “normal” again. What I’m getting at is that modifying the Farm Bill to minimize its unintended effects, to get rid of the vending machines that never should have been there to begin with, strikes me as being an archetype of conservative reaction to change.

Have I got something wrong here? Of course, it all comes down to how “things” are framed: the above is obvious only following your view of the obesity largess, which is not a common perspective.

Comment by Jon


Thanks for writing! My apologies for not responding sooner — it is finals here and I felt that your comment deserved a fuller response than I yet have time for. Also, as I believe political labels are often more obscuring than they are illuminating, I do not hope to fill this website with the sort of easy, unconsidered left-vs-right paradigms that pollute so much political discussion. Having said that, I should admit that you are of course correct — my formulation above is best read as an example of litotes rather than my usual hedging of rhetorical bets; that is to say, by “not unconservative” what I mean is “really quite conservative indeed.”

In the instance cited, Sullivan begins with the words, “All conservatism begins with loss”, and goes on to write a fascinating book filled with healthy regard for the limits of politics as a means of transforming the world — a belief that stands in sharpest opposition to the Marxian belief in revolution as the means of bringing about a more perfect and just world. To Sullivan, as I understand him, conservatism is procedural rather than substantive, incremental rather than paradigmatic, more muddling than visionary. Weasels not hedgehogs, so to say. From the fifth chapter of the book: “The defining characteristic of the conservative is that he knows what he doesn’t know…. While not denying that the truth exists, the conservative is content to say merely that his grasp on it is always provisional. He may be wrong. He begins with the assumption that the human mind is fallible, that it can delude itself, make mistakes, or see only so far ahead. And this, the conservative avers, is what it means to be human.”

For lawyers, a useful analogy might be that the conservative method resembles the common law, rather than statutes. The common law is hammered out one case at a time, by fallible judges who are given authority only over the cases on their docket, and who are subject to review by other, ideally more learned, judges. Statutes are imposed by legislators who have broad authority and who are subject only to political pressures. Politicians would like to be thought of as visionaries. When judges are visionaries, we call them “activist,” and we say that they are legislating from the bench; we say, in essence, that they are doing the job of politicians. Scholars in the “Law and Economics” school of legal thought have gone a long way to demonstrating that out of hundreds of thousands of common law decisions it is possible to aggregate rules and principles which wind up in most if not all cases promoting economic efficiency. The common law method is conservative in nature.

As you note, even if one is skeptical of the transformative power of politics, how one frames the issues will dictate one’s specific positions on those issues. That is to say, what one seeks to conserve will depend on one’s intuition about the ground-state of the world. If you think it is ordinary and normal for, say, Nestle to be allowed to sell candy to kids whenever and wherever, including on school property, then you might oppose government actions which interfere with this state of affairs. If on the other hand you think that putting vending machines and soda fountains into schools is a new idea, you might be more willing to see that idea modified or restrained if it turns out to have unexpected consequences.

From the comments on (I think) Megan McArdle blog, discussing this same topic, I discovered a term that may be useful: “drive-by libertarian”. This refers, as far as I can tell, to the sort of self-identified libertarian whose analysis begins and ends with, “government action? Bad idea. Privatize! Privatize!” without considering whether the government action at hand is an action that is rightly and properly the domain of the government. A perfect example of the “drive-by libertarian” is seen in our public discussion of tax rates. There is a theory, based around the Laffer curve, which implies that there is a point at which increasing the tax rate will take so much money out of the economy that tax revenues will be lower at the higher rate than they are at the current rate. This phenomenon has been turned into a matter of political doctrine by many who seem to think that lower taxes are always the way to balance the federal budget. Of course this is not the case — taken to its extreme, this would compel the absurd conclusion that federal revenues would be highest at a tax rate of 0%. Even if one accepts that the Laffer curve exists, one must still examine the tax structure and the economy in order to determine whether the tax rate is ahead of the curve, implying that taxes may be decreased for an increase in federal revenue, or behind the curve, implying that taxes may be increased without so slowing the economy as to decrease revenues. This point seems lost on many on the right today who are eager to recover the glory days of Reagan and Thatcher. It should, but sadly does not, go without saying that just because we were at one point on the curve in 1982, we are not necessarily at that same point on the curve in 2007. By the same token, I can imagine as the “drive-by federalist” one whose analysis begins and ends with “Federal government telling the states what to do? Wrong! Unconstitutional!” again without considering the nature of the government action.

I singled out Mr. Sullivan in the original article mainly because I think that his take on this issue contains elements of both drive-by libertarianism and drive-by federalism, and that I believe this fails to comport with his usual considered approach to political issues.

One final point, and then I must get back to studying. The dangers of drive-by conservatism may, I believe, be illustrated by considering the environmental policy of the Republican presidential candidate Ron Paul, whom many consider to be running on positions that quite closely represent libertarian and federalist ideals. Congressman Paul, it seems, would like to see environmental harms addressed in tort — that is to say, I think that he believes that environmental harms would sufficiently be addressed by a rigorous policing of one’s right not to have another harm one’s person or one’s property.

The problems with this approach are manifold; however, I will here discuss only two. First, the transaction costs to tort litigation mean that many minor harms will go without redress. The very nature of environmental harms is that they are spread across a wide population of victims, but the harm to each individual victim, while real, may not be worth the costs of consulting a lawyer, filing a complaint, hiring expert witnesses, and so on. Class action mitigates, but does not eliminate, these costs. Second, environmental harms are often causally underdetermined — that is to say, it is often difficult to show that the harm a victim has suffered is the result of offending activity by a particular defendant. It is easy to imagine a situation in which each of a dozen manufacturing facilities makes it only a few percent more likely that a member of the local population will get, say, a particular form of cancer, but the aggregate effect of all of these facilities is that cancer rates shoot up in the local population. It will be hard for a particular cancer patient to prove that a particular defendant caused his or her cancer, even if it is certainly the case the patient would not have gotten cancer in the absence of any of these manufacturing facilities. Because of these problems, actual harms done to individuals will not be addressed merely in tort. This leads to economic inefficiency, and it may be the case that the inefficiencies of the tort solution (i.e., the wealth incorrectly distributed to polluters who receive the total profit of their activities but are not held liable for the harm those activities cause) exceed the inefficiencies of the regulation solution (i.e., diminished return on investments in regulated industries).

Environmental regulation is often criticized by conservatives and libertarians on the grounds that it is inefficient because it limits economic growth and imposes something resembling a “command economy”; it seems to me that even if this is the case, environmental regulation is a lesser inefficiency de jure, while hoping the harms are redressed in tort is a greater inefficiency de facto. At some point, thoughtful conservatives acknowledge that the difference between these inefficiencies may become large enough that the blunt instrument of political action may be used to correct them. Drive-by conservatives simply hear the word “regulation” and translate it into “command economy” and imagine that we are one step closer to the Glorious Leninist Future that almost nobody actually wants anymore. In so doing, they wind up opposing the lesser inefficiency in favor of the greater, which in the aggregate does more harm than good.

Okay, about halfway through there, I might’ve completely lost the plot, but I’m gonna leave this as it is because I think some of the ideas are worth putting into this discussion. Whew! Back to work.

Comment by lawforfood

I guess everything needs to be regulated these days…even vending machines. People just need an order.

Comment by VendingMachines

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