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Marler Blog Providing Commentary on Food Poisoning Outbreaks & Litigation

Did you ever get the feeling that grown-ups are not running our government?

That is not meant as a slam against the Democrats now or when the Republicans took us in year’s past from a surplus to tax breaks for the weathly, medicare drug benefits and two wars.

Screen shot 2010-11-30 at 10.10.13 PM.pngI was having a relaxing evening for a change until I received an email from John Stanton of Roll Call noting that “[a] food safety bill that has burned up precious days of the Senate’s lame-duck session appears headed back to the chamber because Democrats violated a constitutional provision requiring that tax provisions originate in the House. Section 107 of the bill includes a set of fees that are classified as revenue raisers, which are technically taxes under the Constitution.” Section 107 states:

Directs the Secretary to assess and collect fees related to: (1) food facility reinspection; (2) food recalls; (3) the voluntary qualified importer program; and (4) importer reinspection.

Per Mr. Stanton, “[a]ccording to a House GOP leadership aide, that section has ruffled the feathers of Ways and Means Committee Democrats, who are expected to use the “blue slip process” to block completion of the bill.”

However, this possible squabble may well have an elegant, possible solution to funding for food safety legislation. As you might already know, in the House version of its food safety bill, H. R. 2749, lies Sec., 743. FACILITY REGISTRATION FEE.

(b) Fee Amounts-

(1) IN GENERAL- The registration fee under subsection (a) shall be–

(A) for fiscal year 2010, $500;

So, if the House is already charging $500 per year, per facility, why can not the House and Senate in conference agree that the $500 fee, (that S. 510 did not have in the first place) would replace S. 510 Sec. 107?

It is late and I simply do not know the answer.  And, I have not even talked about issues that the House may well have over the Tester/Hagen Amendment which at this point the House needs to leave alone.

  • http://www.thecompletepatient.com David Gumpert

    S 510 already runs roughshod over the Constitution via allowing arbitrary company searches without warrants, so I can appreciate your impatience with letting another Constitutional technicality possibly interfere with passage. But the Constitutional provision that taxing and spending legislation originate in the House is quite fundamental to our entire system of government, as stated in Houghton Mifflin Companion to U.S. History:
    “The House of Representatives, created as the ‘popular’ branch of government, was intended to counterbalance the more elitist Senate and presidency. Giving meaning to the principle ‘no taxation without representation,’ the Framers of the Constitution provided that House members be elected directly by the people and enjoy exclusive authority to initiate tax and spending legislation.”
    Moreover, S 510 allows huge fees beyond the $500 registration–those “food facility reinspection” fees could total many thousands of dollars each, if current FDA practice is employed of charging companies substantial hourly rates for FDA time and services…really taxes. Damned Constitution, what a pain!
    David Gumpert
    Author: The Raw Milk Revolution: Behind America’s Emerging Struggle Over Food Rights”

  • http://www.marlerclark.com/wmarler.htm Bill Marler

    David, I think they will work it out, but it is amazing how many lawyers – including myself – read S. 510 and missed that provision. Perhaps because there was not a actual number attached to it. My guess is that Dingell, Waxman, etc will work this out with Harkin and Durbin and the President will sign this legislation before the end of the year.