Food rights and federalism clash in the MAHA era.
Legal counsel for Amish food rights activist Amos Miller claimed victory in a recent Pennsylvania decision that permits the feisty farmer to continue selling his raw milk outside of the state but not “within the Commonwealth.” The ruling permits Miller to keep his business afloat to fight for food rights another day, but his war is far from over.
On Jan. 5, 2024, Pennsylvania State Police and Department of Agriculture officials raided Miller’s farm on alleged complaints of illness caused by his raw milk sold in New York and Michigan. Authorities seized milk products and frozen meats, sparking nationwide backlash and seeding an unprecedented wave of pro-Donald Trump Amish votes among an agricultural community known for keeping to themselves.
Miller has fought state regulators for years, but the MAHA movement has converged with Americans seeking food liberties. In 2021, Maine became the first state to amend its constitution to enshrine the liberty to buy and eat food of one’s choosing; initiatives are growing in many states to follow suit. Some estimate that Miller’s out-of-state customer base is as high as 4,000 to 5,000. For purposes of the recent Pennsylvania appellate court ruling in his favor, the number of Miller’s customers was more weighty than the number of bacteria in his milk.
The arcane legal posture of the case arises from the delicate state and federal boundaries of the US Constitution and resulted in a strange preliminary injunction whereby Miller and his affiliated businesses are free to sell raw milk and other uninspected food products to people in other states but not within the state of Pennsylvania. The decision hinges upon the state’s balancing test for injunctions.
Miller has fought state regulators for years, but the MAHA movement has converged with Americans seeking food liberties. In 2021, Maine became the first state to amend its constitution to enshrine the liberty to buy and eat food of one’s choosing; initiatives are growing in many states to follow suit. Some estimate that Miller’s out-of-state customer base is as high as 4,000 to 5,000. For purposes of the recent Pennsylvania appellate court ruling in his favor, the number of Miller’s customers was more weighty than the number of bacteria in his milk.
The arcane legal posture of the case arises from the delicate state and federal boundaries of the US Constitution and resulted in a strange preliminary injunction whereby Miller and his affiliated businesses are free to sell raw milk and other uninspected food products to people in other states but not within the state of Pennsylvania. The decision hinges upon the state’s balancing test for injunctions.
A Large Caliber Complaint?
After seizing the Millers’ food products and filing a 357-page complaint, the State of Pennsylvania requested a preliminary injunction prohibiting the farm family from selling any raw milk pending the trial’s outcome. The trial court initially granted the state’s request but later amended its ruling to permit Miller and his wife Rebecca to sell raw milk outside the state’s boundaries (but not within) because of concerns that important constitutional rights were impacted.
The Millers argued an injunction prohibiting sales to customers outside Pennsylvania would violate the Supremacy Clause, the Commerce Clause, the Privileges and Immunities Clause, and the Right to Travel Clause of the US Constitution. The trial court agreed, fashioning its Solomonic injunction because it “decline[d] to blur the line between the regulation of raw milk sales in the Commonwealth and interstate commerce.”
Historically, the federal government is empowered by the US Constitution and the Supremacy Clause to regulate interstate commerce, including the sale of food. State governments retain authority to oversee the health and safety of food products and other commerce within state boundaries. The Pennsylvania raw milk statute even employs the phrase “within the Commonwealth,” and so the trial court limited the injunction to that jurisdictional (and geographical) demarcation pending a fuller consideration of the facts and law at trial.
Raw Milk Is Safe and Legal
The case does not address the safety of raw milk, which is legal in Pennsylvania, so long as a permit is obtained, which Miller asserts violates his religious liberties. Famous for their devout, humble lifestyles and stubborn resilience, the Pennsylvania Amish are also renowned for carving a protective constitutional “safe space” around their religious observances. In the seminal 1972 case of Wisconsin v. Yoder, the Amish won recognition of the liberty to withdraw their children from compulsory public school education past the eighth grade. The US Supreme Court ruled their fundamental rights to the free exercise of their faith outweighed the state’s interest in educating their children.
That precedent bears an interesting parallel to Miller’s current kerfuffle. In its Jan. 3, 2025, ruling, the Commonwealth Court of Pennsylvania balanced the potential economic harms to the Millers’ farming business against the state’s arguments of threats to public safety in determining whether a preliminary injunction should be issued. Agreeing with the lower court that important federal constitutional issues are raised that must be addressed at trial, the appellate court emphasized the Millers’ arguments alleging irrevocable harm:
“The Millers argue a preliminary injunction of their out-of-state raw milk sales would bankrupt them, cause them to lose their family farm, and effectively end the case before the trial court can decide the merits … On this issue, we find persuasive Watson v. Perdue, 410 F. Supp. 3d 122, 131 (D.D.C. 2019), recognizing loss of a family farm constitutes irreparable harm because ‘[i]t involves the loss of generations of family history, sweat-equity, and memories,’ and monetary damages are no substitute … The Department does not dispute a preliminary injunction would bankrupt the Millers, and it presented no evidence to the contrary during the evidentiary hearing.”
Amish Amos Fights for Food Rights
This is uncharted legal territory, though, for all American farmers and consumers. The infamous 1942 case of Wickard v. Filburn held that the federal government possessed the constitutional power to regulate a farmer’s wheat grown in his own fields and fed to his own livestock under the Commerce Clause of the US Constitution. Pennsylvania Department of Agriculture v. Miller is grappling with the issue of whether one state can regulate the commerce of another.
Each side argues the other’s position is absurd: The state asserts restricting its authority would allow people from other states to come there to produce uninspected goods to sell outside of Pennsylvania. The Millers posit that permitting the state’s interpretation would allow it to interfere with people traveling through the Commonwealth in possession of raw milk intended for other states, interfering with federal jurisdiction and federal rights to freedom of travel.
Miller will continue selling raw milk in other states pending his ongoing Pennsylvania court battles. If he prevails at trial, and the federal government declines to intrude between him and his trusting customers, he might keep selling uninspected raw milk out-of-state long after his cows come home.
John Klar is a lawyer and farmer; writer and off-grid hermit. This article was first published HERE
This is uncharted legal territory, though, for all American farmers and consumers. The infamous 1942 case of Wickard v. Filburn held that the federal government possessed the constitutional power to regulate a farmer’s wheat grown in his own fields and fed to his own livestock under the Commerce Clause of the US Constitution. Pennsylvania Department of Agriculture v. Miller is grappling with the issue of whether one state can regulate the commerce of another.
Each side argues the other’s position is absurd: The state asserts restricting its authority would allow people from other states to come there to produce uninspected goods to sell outside of Pennsylvania. The Millers posit that permitting the state’s interpretation would allow it to interfere with people traveling through the Commonwealth in possession of raw milk intended for other states, interfering with federal jurisdiction and federal rights to freedom of travel.
Miller will continue selling raw milk in other states pending his ongoing Pennsylvania court battles. If he prevails at trial, and the federal government declines to intrude between him and his trusting customers, he might keep selling uninspected raw milk out-of-state long after his cows come home.
John Klar is a lawyer and farmer; writer and off-grid hermit. This article was first published HERE
4 comments:
>"The case does not address the safety of raw milk, which is legal in Pennsylvania, so long as a permit is obtained, which Miller asserts violates his religious liberties."
How on Earth having to get a permit certifying the safety of a product one is selling violates religious liberties is beyond me. Anyway, so what if it does - exempting vendors on religious grounds would endanger the public by allowing the sale of products that may be contaminated.
Religious freedom is not absolute, or shouldn't be.
I thought it was Hinduism that elevated cows to sacred status, but it seems the Amish are up there with the Hindus. Their defiance of Pennsylvania State law seems to flow from Section 3 of the State Constitution that says under the heading of Religious Freedom, "no human authority can, ... control or interfere with the rights of conscience". That is a very dangerous provision because it strikes at the ability of the State to govern by letting the true believer and the charlatan alike define the dictates of their own conscience.
In the case of the Amish, that now includes the right to sell contaminated milk which, when consumed, can transmit potentially deadly pathogens like salmonella, listeria E.coli and tuberculosis, despite it being prohibited by State law. In the rest of the world, Christians are happy to accept Jesus' clear instruction to "Render unto Caesar the things that are Caesar's, and unto God the things that are God's". Only in America does the renderer believe they have the constitutional right to impose terms and conditions on their compliance. Good luck to the Courts trying to sort out that mess.
But wait; maybe they won't have to. Trump has nominated Robert F. Kennedy Jr. to lead the US Department of Health and Human Services. This man has vowed to end the Food and Drug Administration's — quote — "war on public health," including its — quote — "aggressive suppression" of many things, including raw milk. All in the interests of, I kid you not, Making America Healthy Again. I'm sure the Amish will see this as an answer to their prayers, and confirmation of their divine right to poison their fellow Americans.
Fortunately for those Americans, the solution is obvious. If you don't want to get sick, take personal responsibility and don't drink raw milk. But that requires a modicum of common sense and an understanding of the settled science, attributes which are sadly lacking at all levels of American society these days. Nevertheless, I can hardly wait for the next development, so here's hoping Breaking Views keeps us right up to date, because as with a lot of the news from the US, you simply can't make this stuff up!
As A Christian I disagree on quite a few aspects of the Amish beliefs. They , however, a few years ago gave a good example of forgiveness to a man who came onto their property and murdered some of their children.
There may not be much going for Christianity, but forgiveness is one of them. It prevents quite a bit of bloodshed as existed in tribal warfare in native people.
They refused to be jabbed by the covid vaccine . Good on them for that as well .Their death rate from covid was low apparently.
They definitely promote the Protestant work ethic which, modern children in Western Society need, I think.. Their numbers are increasing possibly because it is a much simpler, plainer lifestyle which in some respects we all need , free of all the toxic legal additives added to our food and forced pharmaceuticals.
Pasteurizing milk kills off all the B vitamins and other goodies in raw milk but I can't understand why the Amish refuse to have their milk tested. I don't think we are getting all the details here.
Has it ever occurred to you Gaynor that if the Amish had a lower death rate from COVID than the general US population it might have been because they are experts at isolating themselves from the world at large. Pity about the other million or so Americans who didn't bother and paid the price.
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