FDA Regulating Your Stem Cells As Interstate Commerce

New submitter dcbrianw writes "A non-surgical procedure that treats joint pain involves removing stem cells from a patient's blood and reinserting them into the joint. The facility conducting these procedures resides in Colorado, but because it orders equipment to perform the procedure from outside of Colorado, the FDA claims it must regulate this process and that it can classify stem cells as a drug. This issue opens the debate of what the FDA, or other regulatory bodies, may regulate within each of our own bodies." Quick: Name five activities with no possible plausible effect on interstate commerce.

Comments

Commerce maximalists?

[DoofusOfDeath]

Can anyone comment on why the Supreme Court has historically allowed the Commerce clause to apply to absolutely anything that could be remotely, however ridiculously, be considered related to interstate commerce, and thus trample states' rights?

Is this simply a perennial sin of the Court, or is there a sound Constitutional basis for it?

Re:Commerce maximalists?

[Anonymous Coward]

This came up in a constitutional law class I took. The answer we came up with is that (1) we (the general populace) want the federal government to be able to regulate these things, (2) constitutional amendments are nigh impossible, and (3) it can be justified... the logic is tortured, and I doubt any intellectually honest person would really believe it, but it can be done.

You probably hate point (1), but think about when it really started happening... the depression was here, people were miserable, they wanted someone to save them, so they turned to the government. And that still happens today. Turn on the news, and when you hear about a major problem, there will be a commentator following hard upon saying "where were the regulators in all of this?!" and people will nod their heads.

Anyway, that's the answer: the majority of people want it to be the way it is.

Re:Commerce maximalists?

[0123456]

Can anyone comment on why the Supreme Court has historically allowed the Commerce clause to apply to absolutely anything that could be remotely, however ridiculously, be considered related to interstate commerce, and thus trample states' rights?

Because it's the only way for a power-crazed Federal government to impose their laws across the country.

Re:Commerce maximalists?

[JBMcB]

Blame FDR. The supreme court was striking down his New Deal regulations and reforms left and right as they didn't jive with the whole "regulating interstate commerce" thing. So he packed the court with statists who rubber-stamped nearly every program and rule with tortured interpretations of the commerce clause.

The side-effect is that the federal government can now regulate nearly everything you do. Unintended consequences and all.

Re:Commerce maximalists?

[Anonymous Coward]

I never understood why some people thinks states rights are oh so wholesome. Some of the most corrupt and evil politics have been enshrined at the state level.

Re:Commerce maximalists?

[SaroDarksbane]

Can they use Interstate Commerce to keep me from going to work?

They can use the Interstate Commerce clause to prevent you from growing wheat in your own backyard for your own consumption, so . . . yes? And it's obvious why the courts let them get away with this; like any good statist, the courts also want the government to control your life at every level. Judges really have the easiest job in the world of it, though, since all they have to do is say "Whatever the government wants is cool with us".

Re:Commerce maximalists?

[hey!]

I was always taught that it was enacted to prevent States from restricting trade between neighboring states... not to prevent trade.

Nobody advocates regulation to *prevent* trade in general. Some trade is *always* restricted by regulation, but the intent and effect of the regulation may be to encourage trade overall. For example if there weren't federal standards for auto emissions, more states might follow California's lead and develop their own regulatory standards. By establishing a nation-wide regulatory regime, a larger and more efficient market results.

On the other hand federal laws *do* effectively prevent *in state* trade in recreational drugs. If anything that's much *more* of an overstepping of federal powers, because the intent is not to provide a uniform regulatory regime for trade in recreational drugs across the country, but to *forbid* the use of recreational drugs *anywhere*. It's seldom questioned because both major parties agree that recreational drug use should be forbidden everywhere.

This is Commerce Clause of the US Constitution: "[Congress will have the power] To regulate Commerce with foreign Nations, and among the several States, and with the Indian tribes. That's it. That's all there is. The plain text of the clause doesn't simply prevent Congress or the States from restricting trade to favor one state's produce over another (that's actually covered in Article 1, Sections 9 and 10). The clause appears to give Congress power to regulate interstate commerce *for any reason it sees fit*. If so, Congress can intentionally *restrict trade* between the states if it believes that trade is not in the national interest. And it does, and will continue to do so. If there's ever successful nation-wide restrictions on abortion, those restrictions will be made possible by the Commerce Clause.

You could reasonably argue that this is *too* much power to give Congress. It wouldn't be the only case. I think the powers the Constitution grants Congress in copyrights and patents almost certainly enable Congress to pass laws that would be repulsive to the framers. But the framers while intending to create a government with circumscribed and carefully enumerated powers couldn't possibly have anticipated *all* the uses to which any one power could be put.

Re:Commerce maximalists?

[sjames]

By that, he does not mean advocates of state's rights, but statists as in believing in the supremacy of 'the state' over individuals.

Other than the recent narrow ruling requiring a warrant for some GPS tracking, they do seem to have a distinct statist leaning.

Re:Commerce maximalists?

[tnk1]

Mostly because the state governments are closer to the people they represent, and are probably (slightly) more concerned about the welfare of the individual people they represent. Obviously, some state governments are pretty huge too, so that is going to be admittedly relative. Still, the Federal Government is gigantic, and you will often find that it tends to represent only the key groups for getting elections won, which is ultimately a very small number of people when you consider it.

I think the best form of democracy consists of the most local form that can get the job done. Having a national army on the Federal level is going to be necessary to protect the whole country from larger aggressors, and certainly it is a bad idea to have localized foreign policy, but do we really need the Federal government to synchronize education, for instance? I'd say not, and the arguments that I hear from some people along the lines of "we can't let the hicks stop teaching evolution," or the like, I think is an invalidation of the principle of government by the People. I also feel that such polarization starts happening when individuals feel they need to become more and more radicalized to even be heard in the larger governmental venues.

Having government at a local level does not always prevent corruption, but it does allow people to actually have a chance to have a say in government if they try to exert their will and interest. To even be noticed on a state and Federal level, you start needing the massive cash reserves that only things like special interest groups or corporate sponsorships can get for you. There's less diversity in solutions, and they tend to be executed more on a basis of political expediency rather than need or efficiency.

Re:Commerce maximalists?

[atriusofbricia]

I would also note that the interstate commerce clause is used as justification for the Obamacare individual mandate.

Everything that isn't explicitly authorized by the Constitution is claimed to be found in the virtually infinite ICC or GW clause.

EPA, War on (some) Drugs, FTC and probably a dozen more federal agencies. Whether a person likes them all or not, they're all tied directly to the infinite power interpretation of the ICC (or GW).

Interstate Commerce

[mosb1000]

I think maybe where they've gone off track is they are thinking they can regulate anything related to interstate commerce, rather than just the commerce itself.

this is hardly the biggest abuse

[Karmashock]

Interstate commerce is a catch all the government uses when it has no right to do something and wants to do it anyway.

What I find amusing about this is that so many people are upset about this stem cell thing but aren't upset by all the things that created the precedence that allowed them to make these claims in the first place.

if you want this to stop then the inter state commerce clause needs to get it's wings clipped. That's the problem. Go to the source.

Re:this is hardly the biggest abuse

[ScentCone]

At least this abuse of the Commerce Clause involves actual economic activity. Obamacare involves garnishing your wages or potentially landing in you federal prison for not participating in interstate commerce with ... a health insurance company in your own state. It's a good thing we passed that law so we could see what was in it, Nancy!

No such thing exists

[NovaSupreme]

You cannot do anything without having some effect on interstate commerce.
Entropy of whole universe must increase with time, so everything is connected including interstate commerce and your poop.
Alternatively, if you are alive and you breathe, you must be changing composition of air a little bit, and since all air is connected, you are modifying the air composition of the whole country. This promotes traders who sell purified air across states.
Alternatively, if you buy an out-of-state merchandise, of course you impact interstate commerce. On the other hand, if you dont buy from an out-of-state merchant, of course you impact interstate commerce, as your (lack of) activity will have negative effect on the price of the merchandise.

Oh, this would be so funny if this clause were not the most abused clause in the constitution, that has been taken WAAAAAY out of its context.

Hahahahahaha

[roman_mir]

This is precious, why have a Constitution if you can 'interpret' it at all, so in reality nothing that government wants to do can be prevented?

I mean, eventually you BREATH AIR, right? Doesn't air cross State boundaries? That's it - your very existence can be regulated by the federal government completely even if you never leave your particular State.

If you grow your own food in your own garden and you don't even buy anything from anybody - well, by gov't logic (and it's true, it already was argued) you are involved in 'interstate commerce'. Why? Because you aren't buying things from other states, so you are clearly preventing their sales, which means you are interfering with inter-state commerce, which means you are engaged in it.

Hawaii is one state, yet it has 'interstate highways' in it (H-1), but it's one State. So how is that possible? Well the answer is obvious - when federal government wants to build a highway system in order to interfere with States rights logic exits the doors.

Re:Growing your own food affects interstate commer

[Daetrin]

It's the government's "get out of jail free" card to regulate anything they want. If you're doing something involving interstate commerce, clearly that affects interstate commerce. If you choose to avoid doing anything that involves interstate commerce, well then obviously that intentional lack of interaction has an effect on interstate commerce as well!

... Glenn Beck on Slashdot?

[truavatar]

Glenn Beck's "theblaze.com" is your sole source for this front page post? Thanks slashdot.

Re:... Glenn Beck on Slashdot?

[gewalker]

I don't care whether it comes from theblaze, huffpost , the national enquirer, or the KKK. If the the story is accurate and relevant (sufficiently interesting, funny, etc.)? If yes, the front page is fine by me. If you have a choice of sourcing the article, a less incendiary source would be a wiser choice.

Re:So?

[SydShamino]

That's a really bad argument. The Supreme Court can be and is regularly wrong. Their word may be law, but that does not make their work right and everyone else wrong. Big difference.

WTF

[Anonymous Coward]

how the fuck can a neurotransmitter be illegal? that makes everyone on earth a criminal, it's totally insane!