NAIS—not legal
by Karin Bergener

USDA points to Section 8320 of the Animal Health Protection Act (7 USC Sec. 8320) as the basis for NAIS. That Section speaks to “developing new and improving existing strategies for tracking and guarding animal and plant health” and “tracking... animal and plant shipments... on hold at ports of entry and customs.” It refers to terrorism not less than three times in a short section. It says nothing about individually registering each farm and head of livestock within the country. And the various bills introduced in the past two Congresses, specifically establishing electronic tracking of livestock and other aspects of the NAIS, indicate that a number of congressmen believe legal authority does not already exist.

No Federal Mandate—Feds have claimed NAIS is voluntary. While they may continue to fund mandatory state programs, no federal mandate exists at this time. Yes, that could change, but until it does, no state can rest on “the federal government says we must do this.” If the state agriculture departments were honest they would say, “We’re doing this because otherwise we won’t get this money from USDA.”

In some states, most notably Texas, legislators have said they want to be prepared to implement a mandatory NAIS because “Then we’ll be ready if the federal government requires it.” This is absurd. It’s like saying that, because it might snow in Florida some day, everyone should buy down coats, heavy boots, hats, and scarves and practice wearing them.

No Proper Procedures—On the state front, various departments of agriculture have taken steps toward NAIS. Wisconsin and Indiana passed legislation that established mandatory premises registration. While these state statutes might be subject to attack on constitutional grounds, at least they represent a statement from the state legislatures about NAIS.

But a number of states have established premises registration either by substituting NAIS premises registration for the premises registration in other programs, or by stating that their broad statutory mandate to protect animal health allows them to establish NAIS. In other words, the state agencies are implementing NAIS without the state legislatures having said anything about NAIS.

Some scrapie program participants have been told they can’t have their scrapie tags unless they register in the NAIS database. In Michigan, universal premises registration was established under the tuberculosis program, which now requires NAIS-compliant tags in cattle. And some states that have established animal census programs have just folded a NAIS-compliant 7-digit premises registration into the census process. What gives the states legal authority to build the largest database we’ve ever seen, and turn that data over to the federal government?

Constitutional Rights—On first hearing of the NAIS, many of us immediately said it violates constitutional rights. A monstrous database containing information about us, our property, and our movements certainly doesn’t match our understanding of the Constitution, or what the founders of this country had in mind for a free people.

Unfortunately, what is and is not constitutional is defined by the Supreme Court, not by our individual interpretations of the language. Given the Supreme Court cases from the last century, the probability of winning a lawsuit on a federal constitutional basis is far less than we would like. On the other hand, if we don’t push for an improved definition of our rights under the Constitution, the few rights we have left will continue to erode. Arguments under the Constitution roughly come down to: freedom of religion, due process for property rights, privacy and freedom from unreasonable searches and seizures, and states’ rights.

Freedom to practice your religion does not have to be tied to an established religion. But, under Supreme Court cases, practicing an established religion can be helpful in claiming an exemption under the First Amendment. The Amish have, in some states, sought exemption from NAIS. So far they have not prevailed.

The relationship between NAIS and constitutional protection for property rights isn’t clear. The right to raise your own food is arguably a fundamental right that deserves protection under the Fifth and Fourteenth Amendments. And animals are clearly property under the law. Many people think the reference to the National Herd in USDA’s original Draft Strategic Plan portends the destruction of the right to individually own livestock, and many people have raised a question about the effect of premises registration on private property.

But government regulates the ownership of property in many ways: auto registrations, the purchase and sale of investments, registries of deeds, and the right of a taxing authority to seize your property for non-payment of taxes. Laws allow the state and federal government to seize animals if they deem them mistreated or become a health threat. We may not like those laws (read the Animal Health Protection Act sometime for an extreme example of bad law), but they exist. No clear cases from the Supreme Court address this type of a claim, so we would have a tough fight to win against a backdrop of regulations we have allowed to gradually expand.

Many people point to the use of tags that may be scanned from a distance as an unreasonable search under the Fourth Amendment. While the current NAIS plan calls for tags that may be read from a distance of only a few feet, we have good reason to believe the plan will gradually change to active RFID tags that may be read at much farther distances.

You might be shocked to learn that it’s entirely constitutional for law enforcement agencies to fly over your open fields and gather evidence without a warrant. Reading ID chips from the roadside has similarities to gathering evidence from the air. Something is intrinsically intrusive about an agriculture department employee sitting at the roadside, identifying your cattle. The prospect gives us all great concern, but it will be complex to raise this argument under existing Supreme Court cases.

Many people argue that NAIS unreasonably invades states’ rights. Some of this argument comes from farmers who are shocked to learn they are considered part of interstate commerce. Based on Supreme Court cases, if you grow farm produce or raise livestock you consume yourself, you are part of interstate commerce. In Wickard v. Filburn, 317 U.S. 111 (1942), for example, the Supreme Court stated that Congress could regulate a person who was growing wheat on his own property for his own family’s consumption, because home-grown wheat could affect interstate commerce, if you consider all the people together who grow their own food.

We may not like the result of the Supreme Court cases, but they are the law until changed in a court case or by Congress passing legislation that restricts the application of the Commerce Clause of the Constitution. Whether the federal government has reached beyond what the founders intended is an argument for another time and another place.

Back to: Where We Are

Karin Bergener of Freedom, Ohio, is an attorney and a cofounder of the Liberty Ark Coalition dedicated to defeating NAIS. This article appeared in the Spring 2007 issue of Rural Heritage.