No regulation without representation

Residents and businesses of one state should not be subject to the taxes and regulation of another. This is a deeply-rooted Constitutional principle that has been obscured, if not lost entirely, in a modern era of increasingly aggressive regulation. 

The risks of state overreach are not theoretical. The agriculture industry, for example, is currently fighting a California rule that requires out-of-state egg producers to use cages twice the standard size. Originally, California applied the rule exclusively to Californian producers, but when its egg producers complained they were at a competitive disadvantage, the state extended the rule to all eggs sold within the state. The goal of course was not to regulate Californian producers who were already subject to the rule, but to regulate producers from other states. 


As a result, anyone hoping to sell eggs in California must raise chickens in cages sized according to California’s rules.   

This is not an isolated incident. Until President Obama signed a law banning the practice, Vermont required labelling of any genetically-modified food sold in the state. Thus, food manufacturers selling food in Vermont had to label their genetically-modified food regardless of where they are based and despite the fact that there is no national law requiring them to do so. 

At first blush, these regulations may seem reasonable. Why shouldn’t California—or any other state—be allowed to set rules for food sold to its residents?

The problem, of course, is that these regulations exert considerable influence in other states. In some cases, they effectively set national policies. In Vermont, for example, food manufacturers had no way to know which food products a wholesaler or distributer might ultimately ship to Vermont, meaning one small state dictated a national policy.

Similarly, California is free to regulate the size of its chicken coops, but if it does so, it must also accept the economic consequences of that decision for its producers. By regulating the sale of all eggs in its state, California is dictating policy to producers in other states. 

Regardless of whether one agrees with either state’s policies, regulation with national effect should be implemented with authority of the national government. 

To address this, I will be introducing the No Regulations without Representation Act (NRRA) which would preserve each state’s authority to regulate its own citizens and businesses, and ensure that only the federal government can dictate national policies.

This bill takes no position on the merits of any individual regulation, but targets instead the manner of their implementation because individual states should not influence national policy.

At its core, NRRA is about states’ rights. When the actions of one state infringes on the rights of the other 49, the overreach must be curtailed in accordance with the Constitution, which gives Congress the exclusive authority to regulate interstate commerce. 

The Supreme Court has also long defended this position. In the 1930s, New York passed a Milk Control Act, which set a minimum price for milk paid by dealers to milk producers. To prevent the price control from being undermined by out of state producers, the act also banned sales of milk within New York unless the price paid to producers met the New York minimum.

In Baldwin v. G.A.F. Seeling, Inc., the Court found that “New York has no power to project its legislation into Vermont by regulating the price to be paid in that state for milk acquired there.”

The No Regulation without Representation Act extends this premise to its logical conclusion and forbids regulatory actions of one state that could severely limit the practices of another. 

We live and work in a hyper-politicized environment where the smallest things are spun into controversy, but this is a common sense bill that breaks the cycle of partisan politics and reflects the will of the Constitution.

The Commerce Clause of the Constitution “was framed upon the theory that the peoples of the several states must sink or swim together, and that in the long run prosperity and salvation are in union and not division.” The No Regulation without Representation Act is aimed at ensuring this prosperity. 

Rep. Sensenbrenner represents Wisconsin’s 5th District and is a member of the House Judiciary Committee.

The views expressed by this author are their own and are not the views of The Hill.