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What if the USDA really is full of stooges?

Can the state of Montana impose testing requirements for mad cow disease that exceed those required by the USDA?

Montana Gov. Brian Schweitzer has said that regulators at the USDA are "a bunch of stooges" who have been bought by the big meat packing companies, and has criticized federal mad cow testing requirements as too lax.

The governor has ordered additional tests of Canadian cattle imported into Montana, which will be paid for by a $3- to $5-per head fee charged to the packing companies. Officials at the USDA say that these requirements may be an illegal burden on interstate commerce. Gov. Schweitzer claims that they are a necessary and permissible health and safety regulation.

May the state of Montana do this? Do these regulations unconstitutionally burden interstate commerce? Are they preempted by any federal statute?

I haven't looked too closely at the controlling precedent, but as far as I know the answer to the constitutional question may turn on whether the burdens on commerce imposed by the increased testing requirements outweigh the health and safety benefits for the citizens of Montana. Kessel v. Consolidated Freightways Corp., 450 U.S. 662 (1981). If so, statements like this might come back to bite the governor:

Critics have said Schweitzer is embracing a protectionist policy, but the governor said he was concerned about Canadian cattle imports driving down the price of Montana cattle.

“Bottom line, I’m trying to keep family ranchers in business,” he said.

I realize the political temptation to pander to in-state ranchers is almost overwhelming. In this case, though, Schweitzer ought to stick to his protecting-citizens-from-mad-cow-disease rhetoric. That's all the excuse he really needs.

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