By Tiffany Willis
The European Center for Constitutional and Human Rights has filed a criminal complaint against U.S. torture program architects and members of the Bush Administration. The organization has accused CIA director George Tenet and Defense Secretary Donald Rumsfeld of war crimes and they’ve called for a German prosecutor to conduct an immediate investigation.
This move follows the release of the damning Senate report on CIA torture that includes the case of German citizen Khalid El-Masri, who was captured in 2004 by CIA agents in a case of mistaken identity. The report revealed the shocking contrast of democracy and corruption.
Bizarrely, the only person involved with the CIA torture program who has been charged with a crime is the man who exposed the war crimes — whistleblower John Kiriakou.
The relevant parties in this case have given an extensive interview to Democracy Now. Some of the important points are below.
“By investigating members of the Bush administration, Germany can help to ensure that those responsible for abduction, abuse and illegal detention do not go unpunished.”
Michael Ratner, president emeritus of the Center for Constitutional Rights and chairman of the European Center for Constitutional and Human Rights said this:
“I strongly disagree that Bush, Cheney, et al., would have a defense. This wasn’t like these memos just appeared independently from the Justice Department. These memos were facilitated by the very people — Cheney, etc. — who we believe should be indicted. This was part of a conspiracy so they could get away with torture. But that’s not the subject here now.”
“Secondly, whatever we think of those memos, they’re of uselessness in Europe. Europe doesn’t accept this, quote, ‘golden shield’ of a legal defense. Either it’s torture or it’s not. Either you did it or you didn’t. And that’s one of the reasons, among others, why we’re going to Europe and why we went to Europe to bring these cases through the European Center.”
Ratner is the author of The Trial of Donald Rumsfeld: A Prosecution by Book.
Ratner also said this:
“But, of course, you know, Cheney just showed us exactly why you have to — have to prosecute torture. Because if you don’t prosecute it, the next guy down the line is going to torture again. And that’s what Cheney said: ‘I would do it again.’”
Khalid El-Masri was on vacation in Skopje, in Macedonia, when he was pulled off of a bus by government agents, sodomized with a drug, and taken to the secret base that was identified only as Cobalt in the CIA torture report. After four months, and after the United States learned of the mistaken identity, they left him there and continued to torture him. They held him further because the U.S. realized they had been torturing the wrong man. Afterwards, they released him, dropping him off somewhere to resume his life.
El-Masri’s comments to Democracy Now highlight the contrast of democracy and corruption:
[translated] I was the only one in this prison in Kabul who was actually treated slightly better than the other inmates. But it was known among the prisoners that other prisoners were constantly tortured with blasts of loud music, exposed to constant onslaughts of loud music. And they were—for up to five days, they were just sort of left hanging from the ceiling, completely naked in ice-cold conditions. The man from Tanzania, whom I mentioned before, had his arm broken in three places. He had injuries, trauma to the head, and his teeth had been damaged. They also locked him up in a suitcase for long periods of time, foul-smelling suitcase that made him vomit all the time. Other people experienced forms of torture whereby their heads were being pushed down and held under water.
“And let me just say, Germany — whatever happened before, between the NSA spying on Germany and the fact that their citizen has now been revealed to have been kept in a torture place, when it was known that he was innocent, I’m pretty sure that Germany is going to take this very seriously.“
We need to throw our full support behind this investigation and our government and the Obama administration needs to not impede it in any way. This is a harsh indictment of our hypocrisy as a nation when it comes to democracy and corruption.
Source: Liberal America
By Ian Millhiser
In an extraordinary opinion that transforms a routine sentencing matter into a vehicle to strike down a politically controversial policy, a George W. Bush-appointed judge in Pennsylvania declared President Obama’s recently announced immigration policy unconstitutional on Tuesday. Because the policy “may” apply to a defendant who was awaiting sentencing of a criminal immigration violation, Judge Arthur Schwab decides that he must determine “whether the Executive Action is constitutional.” He concludes that it is not.
Half of Schwab’s analysis of the Executive Action’s constitutionality is devoted to a strawman. Noting that Obama cited Congress’s failure to act on immigration in his speech announcing the new policy, Schwab devotes half of his analysis of the policy’s constitutionality to explaining that “Inaction by Congress Does Not Make Unconstitutional Executive Action Constitutional.” He’s right on this point, just as Schwab would be correct if he argued that President Obama’s authority to create this new policy does not come from a magic hat that Obama keeps in the Oval Office. But it’s somewhat curious that the judge feels the need to present Obama’s political rhetoric as if it were a constitutional argument and then tear that non-argument down.
The remainder of Schwab’s brief constitutional analysis concludes that the new policy “Goes Beyond Prosecutorial Discretion — It is Legislation.” Notably, however, Schwab cites no judicial precedents of any kind to support this conclusion.
One case that Schwab does not cite is Arizona v. United States, where the Supreme Court said that the executive branch has “broad discretion” in matters of deportation and removal. As Arizona explains, a “principal feature of the removal system is the broad discretion exercised by immigration officials.” Executive branch officials, moreover, “must decide whether it makes sense to pursue removal at all.”
Notably, Arizona also indicates that this broad discretion flows from federal immigration law — i.e. laws that were enacted by Congress. This matters because Schwab’s opinion concludes that Obama’s “unilateral” policy “violates the separation of powers provided for in the United States Constitution as well as the Take Care Clause.” In essence, Schwab concludes that the president lacks the authority to act in the absence of authorization by Congress. Schwab does not even discuss the possibility that Obama’s actions may actually be authorized by Congress. Thus, even if Schwab’s reading of the Constitution is correct — itself a questionable proposition — the judge does not even discuss another major source of law that can justify the president’s actions.
Another problem Schwab does not address in his constitutional analysis is how, exactly, the executive branch is supposed to deport the many millions of undocumented immigrants in the United States if it is not allowed to set enforcement priorities among them. As the Justice Department explained in a memo discussing the legality of Obama’s policy, “there are approximately 11.3 million undocumented aliens in the country,” but the executive only “has the resources to remove fewer than 400,000 such aliens each year.”
The fact that Congress only provided sufficient resources to the Obama administration to remove a small fraction of the undocumented immigrants within the United States is itself a legislative judgment that most of these immigrants should not be removed. As the Supreme Court explained in Heckler v. Chaney, because federal agencies typically lack the resources to “act against each technical violation of the statute it is charged with enforcing,” they necessarily must set enforcement priorities. Moreover, these priorities generally should not be second-guessed by judges because “[t]he agency is far better equipped than the courts to deal with the many variables involved in the proper ordering of its priorities.”
So Schwab’s legal analysis is thin. He spends nearly as much time making what appear to be political attacks on the president as he does evaluating actual legal matters. And what little legal analysis he does provide fails to cite key Supreme Court decisions that seem to contradict his conclusion. Judge Schwab traveled far along a very thin branch to reach this decision, and he anchored his decision with little grounding in legal authorities.
Moreover, it’s not clear what effect, if any effect at all, this decision will actually have. The judge does not issue an injunction halting the new immigration policy. Nor does he even state with certainty that the actual defendant in the case before his court will benefit from an order declaring the immigration policy unconstitutional.
Yet, despite these weaknesses in his opinion, immigrant families would be wrong to write off the threat his decision could present. There was a time when the constitutional challenges to the Affordable Care Act were widely dismissed by legal experts — Ronald Reagan’s former solicitor general said he would “eat a hat which I bought in Australia last month made of kangaroo skin” if the Supreme Court struck the law down — yet these challenges rapidly gained momentum after a few Republican judges reached out to strike the law down. The same can be said about the legal theory in King v. Burwell, a lawsuit currently before the Supreme Court that seeks to gut much of Obamacare.
It remains to be seen whether Schwab’s opinion — thin though its reasoning may be — will also grant legitimacy to the case against the president’s immigration policy.
In April, 2014, five members of Congress introduced a bill, H.R. 4432 (hereinafter “the Bill”) seeking to regulate, among other things, the labeling of bio-engineered food products.[i] The Bill, also known as the “Safe and Accurate Food Labeling Act of 2014,” is remarkable in that it: 1) prohibits the States from regulating the labeling of bio-engineered foods; 2) gives the FDA the sole authority to regulate the labeling of bio-engineered foods, but severely restricts how the FDA can regulate the labeling of bio-engineered foods; 3) allows companies to voluntary label their products as bio-engineered when they so desire, subject to very few restrictions; and 4) prohibits under any circumstances the FDA’s ability to decide in the future whether bio-engineered foods are less safe than foods not bio-engineered. Each of these points is discussed in detail below.
First, if the Bill passes, States will not be able to enact any laws regulating the labeling of bio-engineered foods. Section 104(c) of the Bill explicitly states that:
No State or political subdivision of a state may directly or indirectly establish under any authority or continue in effect as to any food in interstate commerce any requirements for the labeling of a food by virtue of its having been developed using bioengineering, including any requirements for claims that a food is or contains an ingredient that was developed using bioengineering.
The quoted language would have the effect of nullifying efforts in at least 20 states to require mandatory labeling for foods that contain genetically modified organisms.[ii] For example, Vermont enacted a law, effective July 1, 2016, that will require foods produced from genetic engineering be labeled as such.[iii]
Instead of allowing states to regulate the marketing of bio-engineered foods, the Bill purports to give the FDA such authority. However, the FDA’s authority to regulate labeling of bio-engineered foods is greatly restricted by the terms of the Bill. Specifically, the FDA may only require bio-engineered food labeling when it determines that 1) there is a “material difference” between the bio-engineered food and its comparable marketed food, and 2) where that difference “is necessary to protect health safety” or to prevent false or misleading labeling.[iv] Even if those two elements exist, the FDA can only require specific labeling that “would adequately inform consumers of such material difference.”[v] Stated differently, not only can the States not require genetically modified foods to be labeled as genetically modified, the FDA cannot even require that labeling, unless the FDA can meet the two elements identified above. Even where the FDA can meet those two elements, the mandatory labeling must be narrowly tailored to inform consumers of the specific “material” difference between the bio-engineered food and its similar, non-bio-engineered counterpart.
What exactly is a “material difference” requiring that companies inform consumers of the difference? The bill provides three types of differences which are considered to be material. The first type of “material difference” is a difference that “significantly alters the characteristics, including the functional or compositional characteristics, of a food, such that the common name no longer adequately describes the food.”[vi] It is difficult to know when such a situation would arise because “significantly alters” is not defined. Therefore, should the Bill pass, the FDA would be entitled to a great amount of discretion to determine whether or not a bio-engineered product is “significantly altered.” See Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 843 (1984) (explaining that an agency’s construction of a statute it administers is owed deference when “the statute is silent or ambiguous” on the issue). Given the FDA’s conclusions that there is no material difference between bio-engineered food and non-bio-engineered food, it is highly unlikely that the FDA would ever require mandatory labeling when left to their discretion.[vii] Indeed, while the statute does not define differences that are not material, it does state that the “use of bio-engineering does not, by itself, constitute a material difference.” Id. at § 424(e).
Furthermore, even if there was such a material difference, given that the labeling must only “adequately inform consumers of such material difference,” this requirement could be met, for example, if the company selling the bio-engineered product simply markets the product in a different name than the “similar” non-bio-engineered product. It seems that sweet and firm, bio-engineered “tomatoes” would be able to be marketed as “specially formulated sweet and firm tomatoes.” That label would inform consumers of the material difference—that the new tomatoes are sweet and firm—without even revealing the fact that they are bio-engineered.
The second type of “material difference” is a difference that “results in a significantly different nutritional property in the food produced from, containing or consisting of the bio-engineered organism.”[viii] Once again, given that the labeling must only “adequately inform consumers of such material difference,” a company could label bio-engineered corn with higher protein content than non-bio-engineered corn as “high protein corn,” without ever revealing the fact that the corn is bio-engineered.
The third difference resulting in a “material difference” is where the bio-engineered food contains an allergen that consumers would not expect to be present based upon the name of the food.[ix] A company could simply label the product with a warning such as, “warning: this product contains [allergen.]” Again, the company would not have to disclose the fact that the product is bio-engineered. Indeed, given that the labeling must only “adequately inform consumers of such material difference,” it is likely that the FDA will never be authorized to require that companies disclose the fact that a product is bio-engineered when narrower labels adequately inform consumers of the material differences.
While mandatory labeling is allowed only in narrow circumstances under the Bill, companies would have great opportunity to voluntarily label their bio-engineered products as they so choose. The Bill prevents the FDA from prohibiting persons “from disclosing voluntarily on the labeling of food developed with the use of bio-engineering the manner in which the food has been modified to express traits or characteristics that differ from its comparable marketed food.”[x] Thus, a company is free to market the differences between their bio-engineered product and similar, non-bio-engineered foods. For example, a company selling bio-engineered tomatoes may claim that “our bio-engineered tomatoes benefit the environment more than non-bio-engineered tomatoes because our tomatoes consume less water during the growing process than non-bio-engineered tomatoes.” Companies will also be free to voluntary advertise, other than in labeling, that the food was developed with the use of bio-engineering.[xi]
The Bill also regulates the labeling of foods that are not bio-engineered.[xii] It explicitly prohibits the labeling of non-bio-engineered foods from suggesting that “foods developed without the use of bio-engineering are safer than foods produced from, containing, or consisting of a bio-engineered organism.”[xiii] In a day and age where courts routinely defer to agencies because agency’s have “expertise” in certain, factual issues, see Marsh v. Oregon Natural Resources Council, 490 U.S. 360, 377 (1989) (explaining that the Court defers to the agency’s analysis when the issue requires a high level of technical expertise), it is alarming that, through the Bill, Congress is making a scientific determination that non-bio-engineered foods are not safer than bio-engineered foods. While the FDA does not currently consider non-bio-engineered to be safer than bio-engineered foods,[xiv] the Bill prevents FDA from ever reconsidering that opinion.
The Bill will have the ultimate effect of keeping Americans in the dark about information they may deem material to their purchasing decisions. By legislating that the fact that a food is bio-engineered is not per se material, without any supporting evidence, the Bill seeks to foreclose any opportunity for a party to prove with empirical evidence that, in fact, the fact that a food is bio-engineered is indeed material to consumers’ purchasing decision. It is plausible that, if the Bill passes, no federal agency or any other governmental entity would be allowed to require companies to disclose the fact that their product is bio-engineered in any circumstances. The Bill will act to, at best, fail to inform consumers that they are consuming bio-engineered products, and, at worst, mislead consumers into believing that there are no bio-engineered products on the market.
[i] See H.R. 4432, 113th Cong., 2d Sess. (2014), available at https://www.congress.gov/113/bills/hr4432/BILLS-113hr4432ih.pdf.
[ii] Jenny Hopkinson, GMO labeling bill would trump states, Politico (Apr. 9, 2014, 4:57 PM), http://www.politico.com/story/2014/04/gmo-labeling-bill-105548.html.
[iii] See 9 V.S.A. §§ 3043(a)–(b).
[iv] H.R. 4432, supra note 1, at § 104(c).
[v] Id. at § 424(e).
[vi] Id. at § 424(g)(4)(A).
[vii] See Draft Guidance for Industry Voluntary Labeling Indicating whether Foods have or have not been Developed using Bioengineering, 2001 WL 34768203 (F.D.A. Jan. 17, 2001), available at http://www.fda.gov/Food/GuidanceRegulation/GuidanceDocumentsRegulatoryInformation/LabelingNutrition/ucm059098.htm.
[viii] Id. at § 424(g)(4)(B).
[ix] Id. at § 424(g)(4)(C).
[x] Id. at § 425(b)(3)(A).
[xi] Id. at § 425(b)(3)(B).
[xii] See generally, Id. at § 425.
[xiii] Id. at § 425(a)(2)(C).
Last night wasn’t a good night for Democrats. But when asked instead to vote on issues that many Democrats care about, voters backed progressive ballot initiatives around the country. This is particularly true in the area of criminal justice, which has become a rare point of bipartisanship among some Democrats and Republicans. In a spate of ballot initiatives around the country, voters sent a signal that they are ready to reform a system that has sent more people in the United States to jail than in any other country in the world.
Alaska, Oregon, and Washington, D.C. put pot legalization on the ballot, and all three passed it. As of last night, there are now more than double the number of jurisdictions that have legalized marijuana for recreational use, even as it remains federally prohibited. In Washington, D.C., where African Americans make up almost half the population, the margin of victory was staggering, with voters supporting the measure by a ratio of 7 to 3.
Alaska and Oregon were not as certain to pass the initiatives. But both passed by margins of several points ballot initiatives that don’t just legalize possession and growth of pot, but also its sale and taxation. (Washington, D.C. is not permitted to tax and regulate by ballot initiative, and lawmakers plan to follow up with a bill to achieve this).
In each of these jurisdictions, different messages dominated. In libertarian-heavy Alaska, where pot policy was already liberalized, the focus of the campaign was that marijuana is no less safe than alcohol, and those who use it shouldn’t be penalized differently. In Washington, D.C., by contrast, a significant population of very liberal gentrifiers mixed with longtime African American residents who are sick and tired of criminal justice policies that arrest African Americans for pot at eight times the rate of whites.
Majorities also voted in favor of medical marijuana. In Guam, a measure to pass medical marijuana passed early in the day. And in Florida, a medical marijuana ballot initiative that became heavily politicized with a well-funded opposition movement failed, but only because it required a 60 percent vote to amend the Constitution. Despite the initiative’s failure, a solid majority — 58 percent — voted in favor of the measure. The initiative’s loss is still a bit of a surprise, because polls have shown that support among Florida residents for the idea of medical marijuana is as high as 90 percent. In fact, lawmakers passed a much narrower medical marijuana provision last year that, remarkably, had the support of almost every state lawmaker. If their goal in passing it was to pick off support for the more expansive measure on the ballot, they succeeded.
Rounding off the evening, two cities in New Mexico — Santa Fe and Bernalillo — voted to decriminalize pot.
The statewide initiatives won’t go into effect today. There will be months of policy-making, political wrangling, and pushback from Congress. But majorities in every jurisdiction where the question was posed voted to reduce the penalties for marijuana.
In California, voters passed an initiative that embraces that Smart on Crime notion in a more comprehensive way. Proposition 47 reduces the penalties for low-level nonviolent offenses including many drug and property crimes, on the notion that locking people up who haven’t done anything dangerous doesn’t do anybody any good. The initiative changes a number of offenses from felonies to misdemeanors, meaning the sentence for conviction is much lower, and that the impact on an individual’s criminal record won’t be as significant. Many job and voting restrictions, for example, only apply to felonies. Offenses that will be affected by the measure include drug possession offenses, as well as shoplifting, credit card fraud, and forgery.
The initiative also means that some 10,000 individuals already behind bars will be eligible for re-sentencing. This is particularly relevant for California, which has been struggling to reduce its prison population since the U.S. Supreme Court declared its prisons so overcrowded that they violate the Eighth Amendment prohibition against cruel and unusual punishment.
With a passage rate of 58 percent, the initiative may serve as a model for other states. The state already decriminalized marijuana possession several years ago, and has seen arrests go down without significant adverse consequences.
In New Jersey, Democrats and Republicans have joined forces over the past year to pass a package of measures that ensure those behind bars are those who pose a greater danger to society, not the ones who can’t afford to pay bail. Lawmakers took up the issue after a study found that some 40 percent of those who are jailed after they are arrested but before their trial or conviction are there simply because they were poor.
The idea behind bail is that individuals who are charged with a crime put up a bond of significant value to increase the likelihood that they will return for future court dates. But the system creates a class divide. Many are charged with bail under $2,500 — a sum that many wealthier individuals can pay, but is completely out of reach for low-income defendants. Those who end up stuck behind bars pending their trial do not have the same capacity to defend their case. They are more likely to eventually plead guilty, and many have called pretrial detention “ransom” intended to extract such guilty pleas.
Two companion bills were passed by the New Jersey legislature to make the bail system less about how much money defendants have, and more about whether they pose a danger to the public. One bill passed by the legislature took income out of the equation for less dangerous offenders by conducting risk assessments of defendants, and allow those not deemed dangerous to participate in a monitoring program until their trail, rather than to sit in jail. A second bill put Tuesday’s ballot initiative before the voters. That ballot initiative asked voters to give judges power to hold the most dangerous offenders behind bars before their trial — even if they could afford bail. By passing this measure Tuesday, the bail reform package is now fully in effect.
The idea of “Smart on Crime” initiatives is to eliminate the counterproductive criminal policies and re-allocate resources toward those policies that actually reduce violent crime. To that end, some might also consider it a win that in Washington State (where pot is already legal), voters both approved a measure to close a loophole in firearms background checks, and rejected a competing ballot initiative that would have narrowed the state’s gun laws. The measure means that gun sellers and buyers can’t get around limitations on who can own a guy by selling them in private online sales or at gun shows.
Source: Think Progress
Edge Fuentes, left, stands with his wife Katie Spring, right, and their 9-month-old son Waylon in their planting room surrounded by seedlings for vegetables and flowers at their Good Heart Farmstead in Worcester, Vt. Spring and Fuentes backed the GMO labeling law, arguing people need to be able to know what’s in their food. (AP Photo/Wilson Ring)
By Niraj Chokshi
Vermont on Thursday became the first state in the nation to require the labeling of genetically engineered foods.
Gov. Peter Shumlin (D) signed that mandate into law on Thursday afternoon, saying in a statement “we believe we have a right to know what’s in the food we buy.” The new law represents a significant victory for advocates who have for years pushed such measures at the state and local level. But there remains one more hurdle to overcome: a likely lawsuit.
There’s no guarantee of legal action, of course, but legislators, officials and advocates are preparing for the state to be sued over the new law. Last month, state Attorney General Bill Sorrell told Vermont Public Radio that he would be “very surprised” if the state isn’t sued. And officials were so sure of a challenge that the measure itself creates a $1.5 million legal defense fund, to be paid for with settlements won by the state. They think it’s coming, but they also say they’re ready.
“The threat of a lawsuit worked for a while, but now it doesn’t work anymore,” says Ronnie Cummins, national director of the Organic Consumers Association, whose organization has for years worked with activists and lawmakers in Vermont on the issue. “I think they may go ahead and sue and do it rather quickly in the hopes that it may gather momentum,” he added, referring to biotech industry groups.
Other states have pursued similar measures, but Vermont’s law will be the first of its kind. Connecticut and Maine passed labeling requirements, but with trigger clauses requiring multiple other states to pass labeling requirements before their own go into effect. At least 25 states have considered such legislation, according to a recent report on labeling requirements from the nonprofit Council for Agricultural Science and Technology. And advocates are hopeful they will get a measure on the Oregon ballot this year.
That recent report — authored by professors from the universities of California, Illinois and Missouri — found no science-based reason for singling out genetically engineered foods. They also suggested that such requirements could have possible trade implications — many of the labeling requirements in other countries violate World Trade Organization agreements, they write — and that food costs could potentially rise if companies decide to use non-modified ingredients instead of simply slapping a genetically modified organism (GMO) label on products. (If they opt to comply with labeling requirements instead, costs could be minimal.)
Proponents argue that the science behind genetically modified food is far from conclusive and ask why consumers should take risks without knowing what they’re eating. If companies truly stand behind the safety of GMO foods, they shouldn’t worry about having to identify them, advocates for labeling argue.
Whatever the wisdom of labeling policies, though, Vermont is set to move forward with its requirement. Cummins and others are relatively calm about the prospect of lawsuits, though, because they’re prepared. Advocates expect industry will challenge the law on three constitutional grounds, none of which they expect to be successful (of course). Here’s how the food industry may fight back and why labeling proponents think they can win, according to their legal analyses.
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1. The First Amendment argument
The first argument that industry is expected to make in challenging Vermont’s GMO law is that it violates commercial free speech rights under the First Amendment. (Businesses have limited free speech protections based on the benefit of free-flowing information to an open society.)
The Supreme Court has established two tests for reviewing whether such rights have been violated, according to two legal analyses of Vermont’s law. Under one test — from Zauderer v. Office of Disciplinary Counsel of the Supreme Court of Ohio — the U.S. Supreme Court found that requiring commercial speech is considered constitutional if the required speech conveys “purely factual information in support of a legitimate government interest,” according to a memo from Emord & Associates, a food and drug law firm. In other words, government can require businesses to make factual statements if it’s in the service of the public good in some way.
The other First Amendment test revolves around whether a state can restrict commercial speech. It stems from New York’s attempt, in the interest of conserving energy, to ban utilities from promoting use of electricity. The Supreme Court overturned the ban, challenged by Central Hudson Gas & Electric. In so doing, the court set up a four-part test, according to another memo from the Vermont Law School’s Environmental and Natural Resources Law Clinic, which represents the Vermont Public Interest Research Group. A limit on commercial speech must meet four requirements, the court found:
- First, the court has to decide that the speech is protected, meaning it must be about legal activity and not be misleading.
- Second, the government has to claim a substantial interest in limiting the speech.
- Third, the policy in question has to “directly advance” that interest.
- Fourth, that policy must not overreach in achieving its goal.
Both legal memos and labeling advocates come to the same conclusion: a labeling law will likely pass either test.
2. Does federal law trump state law?
Another argument that proponents of GMO labeling expect to hear is that Vermont’s new law stomps on territory covered by the federal government. There are three conditions under which federal law trumps state law, a process known as preemption, according to the Law Clinic memo. They are known as express preemption, field preemption and conflict preemption.
Express preemption is when Congress explicitly says a federal law trumps state laws. Both memos conclude that it has not done so with such labeling requirements, which don’t explicitly govern genetically modified foods. A conflict preemption exists when it’s impossible to comply with both federal and state law. Again, federal regulations don’t touch on the use of “genetically enginereed,” “natural” or similar terms, so it’s possible for a business or individual to comply with federal and state labeling requirements, both memos find. Finally, federal law trumps state law when it’s clear that the federal interest in a field is so great that it’s assumed to be the one in charge. In that instance, “congressional intent to supersede state laws must be ‘clear and manifest,’” which neither memo finds it is.
3. Does it interfere with interstate commerce?
The third challenge labeling proponents expect to hear is that the GMO law unconstitutionally interferes with interstate commerce. While the Constitution’s Commerce Clause grants Congress the authority to regulate interstate commerce, it is also understood to implicitly limit state powers to do the same.
The Supreme Court has in the past applied two tests in assessing whether a policy violates the clause. The first is whether a law discriminates against interstate commerce — in other words, does it explicitly favor commerce within the state over commerce between states.
Vermont’s GMO law treats Vermont companies the same as companies based in other states, so advocates are confident it would survive that first test. The second test would ensure that any burden on interstate commerce — e.g. increased costs of labeling GMO foods — are fairly balanced with the local benefits the law provides, such as protecting public health and the environment. Again, advocates conclude the law is balanced.