A farm inspection bill making its way through the Virginia General Assembly is designed to allow the Virginia Department of Agriculture and Consumer Services (VDACS) to replace federal inspectors on Virginia farms, which is good. Virginia farmers assuredly would prefer Virginia inspectors over the Feds.
The bill, however, has provisions that are worse than the Writs of Assistance, the general warrants that fomented the Revolutionary War and led to creation of the Fourth Amendment.
Also, why are places like California and Chicago being more aggressive protecting illegal aliens from the Feds than the General Assembly and Terry McAuliffe’s VDACS in protecting innocent Virginia farmers?
As I understand the issue, federal inspectors would be precluded from Virginia farms if VDACS were to take over these inspections authorized under the Code of Federal Regulations (CFR) written by federal bureaucrats. The bill, however, does not seem to expressly preempt federal inspections, which in turn seems to create a loophole that zealous federal bureaucrats could exploit since they write the rules these days, and not Congress.
But let’s start with the reality that the inspection regime, whether done by the Feds or VDACS, is government-authorized trespass. If Bob down the road wanted to come onto a farm, the farmer could refuse consent. Farm inspections under this regime don’t require consent, nor provide a process to overcome the lack of consent except shear government power and threats of penalties against farmers.
There are historical and legal exceptions to trespass, and the Fourth Amendment creates an exception for government to protect society from harm. The Fourth Amendment, however, first and foremost protects the right of security in our persons and certain private property (not lands, however).
The U.S. Supreme Court created an exception to the Fourth Amendment’s probable cause requirement for certain types of inspections designed to protect the public, provided there was a statutory or administrative plan to prevent unfair targeting or arbitrary use of the inspections. The farm inspection bill does not seem to require such a plan, so inspections may be done on an arbitrary basis. This is worrisome for farmers who wish to criticize the government, for they become targets.
The farm inspection bill authorizes VDACS to trespass on farms during “reasonable” hours. This is akin to a general warrant, which is illegal. Adding a touch of irony, it was farmer George Mason who wrote Virginia’s constitutional ban on general warrants.
The bill authorizes inspectors to seize goods without a warrant. To destroy the produce, VDACS must proceed to a magistrate and hearing, but the burden is on the farmer, not VDACS, to show cause why the product should not be destroyed. So this pits farmers against savvy government lawyers.
Also, there are penalties for farmers who obstruct this trespass. It is not clear whether “No Trespass” signs or something more severe constitutes obstruction.
But the biggest problem with the bill is the lack of remedies for farmers. Government inspections are ripe for corruption, extortion, and abusive targeting.
The Writs of Assistance authorized searches and seizures of illegal contraband. The 17th century English statutes creating the Writs of Assistance provided severe penalties against searching agents who engaged in corruption. They could lose their jobs. The VDACS farm inspection bill provides no such penalties for corruption. It’s sad that the 17th and 18th century English were better at protecting rights than modern-day Virginia.
Also, even under the Writs of Assistance, searching agents could be sued personally for trespass if they failed to find illegal contraband. If they were wrong in seizing property, they could be sued for replevin to return the goods. There are no remedies in the VDACS farm inspection bill to protect farmers, who are at the mercy of the benevolence of VDACS inspectors. This practically invites abuse.
Also, the Writs of Assistance, which were general warrants, were nevertheless issued by judges. Judges could at least evaluate the temperament and past bad acts of searching agents in deciding whether to grant the Writs. The bill provides no review of inspectors searching farms.
The Virginia General Assembly could be more proactive in protecting against federal trespass on Virginia farms by creating state remedies. If states and jurisdictions are fighting to protect illegal aliens from the Feds, then why can’t Virginia officials be more aggressive in protecting innocent Virginia farmers?
30 comments
There is no such thing as a warrant for a farm producing fruits and produce crossing state lines, with inspections to the purposes of public safety. The FDA is explicitly granted authority to unannounced inspections of farms in the Food, Drug & Cosmetic Act from 1938. FDA may grant that authority to the states through the FSMA.
A police search requires a warrant. A farming inspection does not.
It’s a simple bill. Virginia inspectors, or federal inspectors? And to see conservatives demanding we opt for federal inspectors over Virginia is essentially what this post does.
Any talk regarding 4th Amendment, Writs of Assistance or any other rhetorical suggestion towards unlawful search and seizure has not read 1195 and does not understand federal law regulating interstate farming. The FDA already has the authority to do these inspections. And don’t for a second think that the FDA, in paying grants to the FORTY TWO other states already doing this, is going to duplicate the inspections in the 43rd. In 5 years since states have opted in, no state has seen a duplicated inspection, and no state will.
There is nothing unconstitutional about it.
This is the second guest post on TBE regarding this bill that did not understand the bill.
But kudos for referencing the amended bill, rather than the original.
All Farmers Matter
I frankly fail to see why if I understand your argument that existing FDA regulatory authority grants (legislative in this case from 1938) and historical precedent regarding interstate farming regulation somehow can and/or should override any stated concerns regarding potential Fourth Amendment issues (lets select search and seizure as a simple example).
Again if I follow this comment’s justification to reject this topic of concern regarding farm regulation legislation given legal underpinnings because of “preexisting regulatory code and precedent” one could well extend this rational to a logical rejection of a significant recent major Supreme Court ruling handed down in Riley v. California which faced the question of whether and how to apply the “search incident to arrest” (and or code violation) doctrine to cell phones and smart phones that police find in the possession of an individual during arrest or citation.
I get it cell phones aren’t cows but the point here is the court clearly came down in a slam dunk ruling severely restricting the right of policing oriented activities to collect massive amounts of non incident related data that was not germane to a specific event under question without further legal remedies being applied to legally support such actions. Previous precedent of SOP of policing agencies was NOT germane to the Fourth Amendment constitutional ruling of these activities (e.g. a bogus point).
I frankly know little to nothing about this specific state legislative bill pro or con but if the general argument above is being used to justify it’s application and constitutionally I’d have to say I now have some real doubts and concerns. Farmers have a tough and often underappreciated job with often high financial risk and little public thanks for the largely invisible service they provide. Regardless farmers are still citizens and I would think they desire at least the same Fourth Amendment considerations as a cell phone equipped local drug dealer. Simply replacing the feds with state regulation with the same potential ingrained Constitutional inequities doesn’t seem like much of a step forward to me.
HEADDESK.. Not a 4th issue.
So say you I believe I’ll rely on a little more qualified expert’s substantiation regarding the constitutional underpinnings of in effect a regulatory agencies warrant less search rights then your word for it or “it’s always been like that rational”. That something has never been challenged doesn’t ipso facto make it correct or constitutional and feel free to bang your head to your heart’s content.
For you Lawrence.. Not what farmers want, you enjoy it.. https://uploads.disquscdn.com/images/7fa17f1be36e047032a6e9ea8006657224c7209f6245638d7ca456dc25c22ad7.png
I’m ignorant of farming and am not an attorney BUT you need to get used to challenges to many of the precedents set from 1910-1960. We will reverse the absurd Wickard v. Filburn that interprets interstate commerce to include all intrastate commerce due to indirect effects. As eloquently expressed in the consensus of Patel vs Texas Department of Licensing, the judiciary has no authority to separate rights into primary and secondary classes. Certainly one can argue that most rights can’t be enjoyed without the right to earn a living. This overreaction to “robber barons” must be changed so that the government has the same burden of need to restrict commerce as it has to restricting other rights such as speech and religion.
RealFacts, The post obviously does not suggest we opt for federal inspectors as you suggest, but highlights the severe flaws of the state bill expressly incorporating the nature of the federal regime created by federal bureaucrats. The Fourth Amendment, of course, applies to more than just the police. As noted in the article, the Supreme Court has ruled (in 1967) that bureaucratic inspection regimes, to comply with the Fourth Amendment, generally require a plan to help limit arbitrariness and abuse. There also needs to be peaceable, neutral procedures for when businesses refuse consent to entry for inspection. Requirements of a plan, remedies for farmers, and corrections of other flaws in the bill noted in the piece, including expressly barring federal inspectors and reviewing the qualifications and integrity of Virginia inspectors, would help protect Virginia farmers, both those who farm now, and those who farm in the future. Do you oppose such improvements to the bill?
In fact, none of those things are required. Georgia, not exactly a state known for its love of Democrats, the federal government, or federal oversight, when enacting this legislation, the bill was 3, THREE, lines long. Virginia, and Senator Stuart, have gone out of their way to accommodate (unnecessarily) the (unjustifiable) concerns regarding this bill.
Virginia would be the 43rd (as in all but 7) to enact this legislation. I’d argue we defer to the other 42 states in what works in their language, rather than cowtowing to rhetoric referencing words like 4th amendment, warrantless, writs of assistance and other nonsense coming from the far right, all of which has been incorrectly applied to this bill.
When farmers are near unanimous in calling for, asking for, demanding it pass, and the only people in opposition are the far right, those not involved in farming or understanding produce production or the federal regulation over interstate commerce, it’s pretty clear where the priorities will lie, and a majority of legislators will vote, and continue to vote.
It’s not a coincidence that the farmer/Chairman of subcommittee voted for this legislation, or the seven other members on subcommittee to unanimously send it out, or the 19 on the full committee. They understand the bill, what it does, why it’s needed, and why farmers are supporting it.
All farmers matter.
So you believe reference to the Fourth Amendment is “rhetorical” and “nonsense.” That’s illuminating.
All farmers do matter, and none have consent to horse trade the rights of the others.
I also appreciate the irony in choosing a picture of Paris Farms for your post, as Martha Boneta supports this bill 100%. Helps illuminate who’s on the right side of the argument.
I didn’t choose or suggest the picture.
So you oppose the improvements that can and should be made to the bill to better protect farmers?
Martha Boneta does not support this bill.
RealFacts, I know plenty of “far right” folks. All of them who farm on a larger scale understand and support this bill. The nonsense is coming from Carol Stopps who has stubbornly planted her boot on the neck of the folks who grow grassroots and connived them into opposing this bill regardless of facts. I am not looking forward to the backlash among farmers who are pretty much saying F all you Tea Party folks, you are crazy, irrational and wrong. Before Carol Stopps issued HER COLA alert, this bill was already in the process of being amended. You cant tell her stubbornness anything.. She knows it all and if you disagree with her, you are deemed wrong.
This move by Carol Stopps is doing REAL harm to the public opinion of the Tea Party in rural farming areas, makes “us” all look like arrogant idiots.
Want to know the background to the REVISED SB 1195? Fast Forward 12 minutes into this interview. https://www.youtube.com/watch?v=Jl2T0N7wOO8&feature=youtu.be
If you are against 1195 then you should really listen to this.
Listen to this, you just might change your mind… https://uploads.disquscdn.com/images/8c7d7aedaedfee33e0a659d80144ff7bcccd1e92389db5a31a728561251eeaea.gif
We all want safe food and, in rare circumstances, the speed of locating the source of a contaminant can save lives, BUT this is the most offensive, heavy-handed, naive, extortion-prone bill I’ve seen since Obamacare. You’re right on target highlighting the lack of remedies. I’m not a farmer but I would never consider being one if the legislature believes, as this bill implies, that farmers are so nefarious that they will intentionally contaminate their own products unless inspectors have “no-knock, no-warrant” warrants! As written, this Machiavellian bill is an abomination to the basic respect of human nature required by civil societies. Our rep’s have apparently forgotten our state slogan.
So many got this bill AS REVISED so wrong. I one 3 farms, 1 with horses on it. I know several larger farm owners. ALL support 1195. Want to know why?
Years ago, I saw a campaign contribution sheet that had turbocohen’s address on it. Did a google map search on it, then the overhead picture of it. It was the horse farm. Really nice place…
Horse farms wont be affected, its the larger crop farms that my Tea Party friends have decided are better off with more federal bureaucracy and they are telling the folks living in the most Red parts of the state to shove it. Democrats will have a field day with this and my stubborn misinformed friends in the Tea Party refuse to see this.
What the fucking fuck is this bullshit Mark? Real Farmers support SB 1195.
Strong response coming
Trubo, please watch your language here. Thanks!
It frustrating seeing to many of my Tea Party and Liberty friends who by opposing this bill they really hate being supported by mostly Republican farmers who want what most other ag states did to defend them from FDA abuse.
Opposing this is like supporting increased IRS audits, higher taxes and increased debt limits. I guess farmer haters are gonna hate farmers.. Right Jeanine?
Take a deep breath. “Farmer haters are gonna hate farmers” is just plain ridiculous, and rather leftist in its attack angle. Raise your hand everyone if you think anyone here “hates farmers”. Geez….the hyperbole is unhelpful.
http://i0.kym-cdn.com/photos/images/newsfeed/000/173/576/Wat8.jpg?1315930535
… https://uploads.disquscdn.com/images/5b184da98ebf70aff7866769ad205158b0effb486b42ba7d37bf36efbb1b2106.jpg
Look at all the red areas of Va. Which ones do you want to lose. Mark my words, this circular TP fustercluck could turn a few of them against our movement.
Kinda what the TP does, look at Party Registration.
I’m so confused?! As a farmer, why do you need inspections in the first place? If safe farming requires an objective advisor, why don’t you just hire one. Are the inspections just a freebee paid for by the taxpayer? (LOL Usually, at this point I like to say “paid for by people who don’t use the product,” but that’s kinda hard to argue here.)
Why do inspections have to be mandatory and why use the inefficient organization of gov to provide this need?
If my questions offend you, I’m sorry . . . that you’ve allowed yourself to be so easily threatened.
Mainstream ag in Virginia supports the bill. Define real farmers? The new language is specific to FSMA which was not the case with the original bill which had broad, sweeping language without due process. The original bill was really too broad in language. I’ve reviewed the new language but haven’t worked through the specific sections left (small farm.) I wrote for years covering the organic industry for a national publication. I am extremely familiar with the FSMA. When I took training in it, my opinion is that its level of detail was crazy. FSMA certainly incentivizes farmers to do less that 25k of proceeds. Neither bill addresses the crazy FSMA language about recordkeeping (which may be a good thing.)
http://inthesetimes.com/rural-america/entry/19012/the-food-safety-and-modernization-act-has-consequences-for-small-farmers
Real Farmers as in growing crops for sale. No offense to backyard farmers.
All Farmers Matter.