Having the Constitution for Lunch

by Don Boudreaux on April 6, 2006

in Law

I’m aware that what I’m about to ask is the intellectual equivalent of taking your date to a monster-truck rally — that is, sure evidence of low-brow benightednes and crude sensibilities — but on what Constitutional basis does the national government in the United States regulate the contents of school lunches?

That Uncle Sam does regulate school-lunch contents is beyond question.  See this report in today’s New York Times informing us that "A bipartisan group in Congress plans to introduce legislation today
that would prohibit the sale in school not only of French fries but
also of other fatty or sugary foods, including soft drinks."

Put aside all questions of the desirability of such legislation and ask "Is this legislation Constitutional?"

I’ve read the U.S. Constitution several times, and nowhere — not remotely, not even as a penumbra emanating from its text — does it give to the national government the power to regulate the contents of school lunches.  And yet, such a fact inspires no apparent hesitation in the typical member of Congress to regulate in this way.

Keep in mind that each member of Congress is sworn to uphold the Constitution.  This oath, however, obviously matters less than does the fact that

Senator Lisa Murkowski, Republican of Alaska, has watched what goes on in the school her two teenage sons attend.

"We talk a lot about healthy nutrition,
we teach the kids about the food pyramid, and then they go down the
hallway and get the high fat, high sodium and high junk available in
the vending machines," Ms. Murkowski said. "We need to be consistent.
People are beginning to connect the dots between rising health care
costs and obesity."

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Jeff April 6, 2006 at 3:29 pm

Interstate commerce clause. Isn't that the grounds for every bill that's introduced? Don't ask me how.

Josh April 6, 2006 at 3:56 pm

If that doesn't work, try the necessary and proper clause.

Don't even think about looking at the 10th amendment.

Half Sigma April 6, 2006 at 4:22 pm

FDR appointed nine justices to the Supreme Court, and every single one of them voted his way on the Interstate Commerce Clause issue.

Dick Head April 6, 2006 at 4:30 pm

Is there anything in there about securing our borders?

Chris April 6, 2006 at 4:47 pm

I guess it is so easily legitimized becuase of public schools.

Nobody ever seems to think that the compulsory "sitting around" 10 hours a day, followed by sitting a few more hours working on homework and then playing on the computer is a problem.

Perhaps we should enforce physical education instead of sweets? Perhaps only sports should be taught in school?

Force the schools to only serve gatorade and power bars! That will fix everything!

Robby April 6, 2006 at 4:52 pm

It seems that it would have to be done under the commerce clause. However after Lopez it seems to me that this would be highly questionable. Justice Thomas said in his concurrence that allowing Congress to regulate intrastate, noncommercial activity under the Commerce Clause would confer on Congress a general “police power” over the Nation. If the government did not have the power to regulate the possession of firearms near schools I'm not sure whether they would have the power to regulate lunch programs.

Don Mynack April 6, 2006 at 5:02 pm

I have yet to see the masses of fat kids supposedly devouring our nation as we speak. I walk my daughter to elementary school every day, and most of those kids are skinny as we were. Hell, they probably had higher fat foods in school when I was a kid – it just tasted like crap.

We do I get the feeling the so-called "obesity epidemic" is advocacy and media generated bunk?

spencer April 6, 2006 at 5:19 pm

Actually, the power probably comes from the power of the purse. The federal government pays for many of the school lunch programs.
So, technically, a school is free to ignore the federal government regulations — suggestions — but it will just cost them the federal lunch subsidies they receive.

Don Boudreaux April 6, 2006 at 5:24 pm

Spencer's guess — namely, that Congress might try to justify its violation of the Constitution by saying that its new rules apply only to school lunches that are paid for with federal tax dollars — is sensible. But it's wrong. Here's a line from the NY Times report:

"The bill would apply to all foods other than the official school lunch, the meal for which schools receive government aid and which is already covered by other high-nutrition standards."

But Spencer's comment does raise another, equally fundamental question: under what Constitutional provision does Uncle Sam find the authority to pay for school lunches?

Half Sigma April 6, 2006 at 5:54 pm

"under what Constitutional provision does Uncle Sam find the authority to pay for school lunches"

Don, this comes from the "Spending Power" in Article I Section 8:

"The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States"

tkc April 6, 2006 at 6:19 pm

The answer I almost always hear is the general welfare clause. Since eating fatty food and drinking sugary sodas is deemed bad for children then it becomes a matter of the welfare of these kids for Congress to intervene. It is a sort of 'whatever Congress sees fit to do' basis for such laws.

Not that I buy into it. If the general welfare clause was meant to be so expansive then what is the point to having the enumerated powers and the 10th Amendment?

Keith April 7, 2006 at 8:55 am

Help! My neighbor is getting fat! Will I die!?

Christopher April 7, 2006 at 9:21 am

Dead-on Don, great points!

FlimFlam April 7, 2006 at 10:04 am

It's the interstate commerce clause. The meaning of "interstate" and "commerce" has largely been read out of the Constitution. While Lopez and Morrison did provide a slight brake, they were really drafting guides for Congress. All that is necessary is a "jurisdictional hook", i.e. a finding by Congress that the activity to be regulated effects interstate commerce, for the law to be upheld. Who could argue that teaching children who will one day grow up to be producers and consumers does not effect commerce? Not to mention the fact of the illnesses these kids will get because they are fat which will have to be treated with goods that move in, or effect, interstate commerce.
I found it funny (not in a good way) that a large part of the questions of the Senate judiciary committee had to do with whether the recent nominees to SCOTUS would be too deferential to the President and not deferential enough to Congress. Specter and Schumer were particularly concerned. Specter seems to have a grudge that SCOTUS would have the temerity to say Congress does not have some power they claim to have.
Under their thinking, and be honest, under the thinking of just about every member of the Senate and House, Congress has to the power to do just about anything, simply because they say they have the power.
Under the current view, Lopez and Morrison notwithstanding, there is nothing that Congress cannot regulate, with the exception of a few things. We are a nation living under a government with plenary power and we retain a few enumerated rights.
As an example, Congress could validly ban the growing of tomatos in your back yard. For surely every one grown is one less purchased in interstate commerce. Does anyone really think that when the Constituion was drafted the framers thought it gave Congress complete power over every growing thing then in existence or any growing thing that will ever be in existence? The fact that Congress would not do this is immaterial. If they have the power, then we live under a mere license, subject to revocation at any time.
Still think we are free?
Read the Federalist Papers. I guess the Anti-Federalists were right.

Have a nice day, and enjoy your gilded cage.

Noah Yetter April 7, 2006 at 11:55 am

If the general welfare clause permits this, then the Constitution means nothing.

Empty set.

happyjuggler0 April 7, 2006 at 12:10 pm

I've got news for people: Eating sugar and high fat foods will not make you fat. Gasp! There is only one thing that will make you fat, and that is eating more calories than you burn.

Now as for nutrition, throw away the government pyramid because that was paid for by industry lobbying that refused to allow awful things like dairy to be removed.

What you need from a nutrition point of view is protein, a balanced amount of vitamins, and that is it. Meat, veggies and fruit, everything else is superfluous at best.

At that point it comes down to risk/reward ratios and moderation. There is nothing wrong with sugar or fries in moderation. I can see it now, we'll have Twinkie-sniffing dogs in our schools to make sure parents haven't violated federal "law" by packing a modest-sized dessert with a high sugar content along with a fabulously nutritious lunch.

Too much sugar seems to lead to diabetes, at least for many people. This does not mean that sugar needs to be banned, and it especially does not mean sugar needs to be banned fromt he lives of kids for only 6 hours a day, which is the amount of time they are usually at school.

If the Feds can't keep nasty carbs off the food pyramid, they have no business telling anyone else what they can and can't eat. In fact, even if they did have an intelligent nutrition guide….

Adam April 7, 2006 at 7:00 pm

The argument that the General Welfare Clause allows this amount to an argument that the Constitution provides an enumeration of the powers of the federal government, but adds "… and anything else they think would be a good idea."

bartman April 9, 2006 at 1:17 am

"General welfare" is usually the claim made by the nanny-staters I know.

My argumant that most programs designed to promote the "general welfare" usually promote some "special welfare", but most laypersons can't comprehend the technical differenmce between "special" and "general".

In my book, to promote the general welfare a policy has to improve Pareto-efficiency.

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