Word of the Month for October 2026: National Sales Tax

There are some words that sound almost comforting:  Freedom. Fairness. Simplicity.

And then there are three other words that make the hairs on the back of a taxpayer's neck stand up: "Federal Sales Tax."

Imagine, for a moment, that Congress comes along and tells you that the income tax is going away. No more Form 1040. No more withholding from your paycheck. No more payroll tax. No more federal estate and gift tax. And, perhaps most tantalizing of all, no more Internal Revenue Service.

Sounds pretty good, doesn't it?

Now imagine that Congress hands the job of collecting the replacement tax to the states.

Wait.  Hold up.  The ugly step sisters?  The bumbling in-laws?  Those are "the states" of which you speak?

Yep.  The very state governments that already have their own sales-tax statutes, tax commissions, regulations, auditors, filing requirements, exemptions, definitions, enforcement procedures and (depending upon where you live) some rather creative ideas about what constitutes a taxable "service"?

Now the plot thickens.

That is essentially what the FairTax Act of 2025, H.R. 25, 119th Cong., 1st Sess. (2025) proposes.

And before we go any further, let's clear up one piece of political housekeeping: H.R. 25 was NOT introduced by President Donald Trump. It was introduced by Representative Earl "Buddy" Carter of Georgia on January 3, 2025, and referred to the House Committee on Ways and Means. As of October 2026, it remains a bill not a law.

So why discuss it now?

Because H.R. 25 proposes one of the most radical changes to the federal tax system in modern American history.  And once you get past the seductive phrase "abolish the IRS," there is considerably more going on.

Before we get all into this, let's define what we're talking about here.  NATIONAL SALES TAX (noun): A national sales tax is a tax imposed by the federal government upon the consumption of taxable goods and services, generally collected at the point of retail sale rather than through taxation of income.

Under H.R. 25, the tax would be imposed on the 

use or consumption in the United States of taxable property or services. 

The bill calls for a 23-percent tax-inclusive rate beginning in 2027, with the rate thereafter tied to the revenue needed for general federal spending, Social Security and Medicare. H.R. 25 § 201, 119th Cong. (2025).

An important word hidden in plain sight is "inclusive."  

See, a 23-percent tax-inclusive rate is not the same thing as adding 23 percent to a $100 purchase.

For example, if the pre-tax price is $100, a 23-percent tax-inclusive rate produces a total price of approximately $129.87. In ordinary sales-tax language, that is roughly a 29.87-percent tax-exclusive rate.

So when somebody says, "It's only 23 percent," the reasonable response is:  "Twenty-three percent of what?" 

So, What Exactly Does H.R. 25 Do?

H.R. 25 is not simply a bill creating another sales tax.  It attempts to rebuild the federal tax system from the ground up in essentially 4 steps.

Step 1. The federal income tax goes out the window.

Section 101 repeals Subtitle A of the Internal Revenue Code, which contains the federal income and self-employment tax provisions.

Step 2. Federal payroll taxes go.

Section 102 repeals Subtitle C, including the federal payroll-tax machinery used for Social Security and Medicare.  But (and this is an important BUT) Social Security and Medicare do not disappear.

The bill instead directs federal sales-tax revenue into the Social Security and Medicare trust funds (under H.R. 25 § 102, § 904) which has been so "perfectly administered" by the federal government for lo these many years.

Step 3. Estate and gift taxes are gone.

Section 103 repeals Subtitle B of the Internal Revenue Code.

Step 4. The IRS is phased out.

This is where the headline gets interesting.  H.R. 25 provides for the phase-out of IRS funding and administration of the repealed federal taxes. It also creates a Sales Tax Bureau within the Department of the Treasury.

So "abolish the IRS" does not mean "abolish federal tax administration."

It means something closer to:  Abolish the IRS as we know it and replace its remaining federal tax functions with other Treasury machinery.

The bill specifically creates a Sales Tax Bureau to administer the national sales tax in states where federal administration becomes necessary and to perform other federal duties relating to the tax under H.R. 25 § 302.

That's our first little plot twist. 

The States Get the Collection Job

This may be the most interesting part of the entire bill.

H.R. 25 says that the national sales tax is to be "administered, collected, and remitted to the United States Treasury" by a state if that state qualifies as an "administering State."

To qualify, a state must maintain a sales tax and enter into a cooperative agreement with the Secretary of the Treasury.

So, as per H.R. 25 § 401 the agreement covers such things as:

• transfer of federal tax money;
• information exchange;
• confidentiality;
• taxpayer rights;
• dispute resolution; and
• other administrative matters.

And the states get paid for doing it.  That's right - an administering state may retain an administration fee equal to one-quarter of one percent of the federal tax it collects.

So the federal government says:  "This is our tax."

The state says:  "Sure. We'll collect it."  

And the state gets to keep a piece of the money for doing so.  That's not exactly the abolition of government tax administration; it's outsourcing. 

And Here Comes Uncle Sam Again

Remember that word in the title, "Primarily?"  H.R. 25 says the national sales tax will be administered primarily by the states.

Not exclusively by the states but "primarily."

What this means is that if a state does not qualify as an administering state, the Secretary of the Treasury administers the federal sales tax there. A state can also have another state perform the job under certain circumstances (kinda like how states dump their trash in New Jersey instead of their own landfills) under H.R. 25 § 404.

Of course, the Secretary of the Treasury retains substantial authority.  In fact, The Treasury Secretary may:

• issue regulations;
• issue guidelines;
• assist states;
• provide for uniform administration;
• provide public guidance;
• facilitate interstate agreements;
• resolve certain disputes among states; and
• administer the tax directly in certain jurisdictions.

If a state regulation conflicts with a lawful federal regulation concerning the federal sales tax, the federal regulation controls as per H.R. 25 § 402 and § 406.

So the IRS may be going out the front door but the federal government appears to be leaving a Treasury Department-shaped footprint in the back door. 

The Catch: State Sales Taxes Don't Go Away

This is another point that could easily get lost in the sales tax pitch.  

H.R. 25 does not abolish state sales taxes.  Instead, it specifically contemplates a "conforming State sales tax" which is a state tax using the same definition of taxable property and services as the federal system.

And the bill expressly contemplates that both the federal sales tax and a conforming state sales tax may be paid together in a single payment as per H.R. 25 § 2(a)(2), § 501.

In other words:  Federal sales tax + state sales tax = still possible.  In practice, what we the people could be looking at is a true Socialist 100% tax rate (50% to the Feds and 50% to the states).

So, while the national sales tax replaces federal income and payroll taxation, it does not magically make state taxation disappear.

And this is where things get interesting. 

Fifty States, Fifty Tax Personalities

Today, state sales taxes are hardly uniform.  Utah, for example, taxes tangible personal property and certain services, including particular repair, renovation, cleaning and maintenance services.

Oregon, by contrast, has no general sales or use tax.

That means a national system administered through state tax machinery immediately encounters a basic question:  What exactly is a taxable "service"?  

and that question is not academic.

Utah's courts have spent decades wrestling with it.

In Hardy v. State Tax Commission, 561 P.2d 1064 (Utah 1977), the Utah Supreme Court examined whether materials used by dentists in providing professional services were subject to sales or use tax. The court had to distinguish between the taxable sale of tangible property and a service in which tangible property was merely incidental.

Likewise, in BJ-Titan Services v. State Tax Commission, 842 P.2d 822 (Utah 1992), the Utah Supreme Court dealt with the difficult boundary between taxable tangible property and nontaxable services and discussed the state's "essence of the transaction" and "ultimate user or consumer" approaches.

That is the sort of dispute H.R. 25 would have to address on a national scale.

What happens when the plumber says the customer bought a service?

What happens when the plumber says the customer bought materials plus labor?

What happens when the software company sells a subscription?

What happens when the doctor provides medicine as part of a treatment?

What happens when an attorney sells advice?

What happens when artificial intelligence provides a service?

What happens when a business buys something that is partly for business and partly for personal use?

The bill has answers to some of these questions but/and it does not eliminate the need to argue about them. 

The Supreme Court Has Already Been Down This Road

The good news is that there is a substantial body of sales-tax constitutional law.  The bad news is that it demonstrates just how complicated interstate taxation can become.

In National Bellas Hess, Inc. v. Department of Revenue, 386 U.S. 753 (1967), the Supreme Court held that Illinois could not require an out-of-state mail-order company with no physical presence in Illinois to collect Illinois use tax.

The world, however, changed.

In Quill Corp. v. North Dakota, 504 U.S. 298 (1992), the Court retained the Commerce Clause physical-presence rule for state sales-tax collection even though its Due Process analysis had evolved. The Court expressly noted that Congress possessed the power to resolve the interstate taxation problem.

Then came the internet.

In South Dakota v. Wayfair, Inc., 585 U.S. 162 (2018), the Court overruled the physical-presence rule of Quill and permitted states to require certain remote sellers to collect sales tax based upon economic connections to the state.

In Complete Auto Transit, Inc. v. Brady, the Supreme Court established a four-part test for determining whether a state tax involving interstate commerce violates the Commerce Clause. The tax must apply to an activity with a substantial nexus to the taxing state, be fairly apportioned, not discriminate against interstate commerce, and be fairly related to services provided by the state. Complete Auto Transit, Inc. v. Brady, 430 U.S. 274, 279 (1977).

H.R. 25 is not operating in a constitutional vacuum.  It is stepping into a constitutional minefield that the Supreme Court has spent decades mapping. 

The Really Interesting Part: Destination

H.R. 25 uses a destination principle.  For tangible personal property, the destination generally is where the property is first delivered to the purchaser. Real property is taxed according to where the property is located. Other property generally follows the purchaser's residence, while services have their own destination rules as per H.R. 25 § 405.

Why does that matter?

Because the question becomes: Which state gets the money?

Suppose a company in Utah sells something to a customer in New York.  Utah collects it.  New York claims it.  The seller ships it from Nevada and the customer uses it in Florida.

Welcome to the tax lawyer's version of Clue.

H.R. 25 therefore creates a federal Office of Revenue Allocation to resolve disputes among administering states concerning where taxable property or services are destined. Its decisions would be subject to judicial review in federal court under an abuse-of-discretion standard under H.R. 25 § 405(i).

So, yes, the IRS is being abolished but federal courts, federal regulations, the Treasury Department and a federal Office of Revenue Allocation remain part of the scenery. 

What About Regulations?

Here is an important distinction.  There are no H.R. 25 implementing regulations yet because H.R. 25 is not law.  But the bill anticipates a substantial regulatory structure if enacted.

The Treasury Secretary would have authority to promulgate regulations concerning administration, uniformity, interstate taxation, imported goods, definitions and other matters.

The bill even requires most federal regulations to be published in the Federal Register and generally delayed for 90 days before taking effect, subject to an emergency exception as per H.R. 25 § 406.

Oh, and state tax administrators would still have their own rules and procedures.

That creates an interesting legal question:  How much "national" sales tax can you have when somebody else is doing the administering?

H.R. 25 attempts to answer that by making federal rules controlling when federal and state rules conflict.  And while that all sounds uniform, it also means that the supposedly simple national sales tax could generate an entirely new body of federal regulations interpreting what "taxable," "consumer," "service," "business," "investment," "export," "intermediate sale" and dozens of other terms mean.

The tax code may get shorter but the regulations may not. 

Oh and Don't Forget About the Audits

This is another myth worth killing.  A national sales tax does not mean nobody gets audited.

H.R. 25 gives the sales-tax administering authority authority to issue administrative summonses and conduct examinations and audits of people who may be liable to collect and remit the tax.

Businesses must maintain specified records for six years as per H.R. 25 §§ 507–508.

Oh, and don't forget about the penalties.

For example:

• knowingly or recklessly accepting a false intermediate or export certificate can trigger a penalty of 20 percent of the uncollected tax;
• late remittance can result in a penalty of 1 percent per month, up to 24 percent;
• false rebate claims can result in a civil penalty of at least $500 or 50 percent of the improperly claimed amount;
• certain false rebate claims can also carry criminal penalties of up to one year imprisonment.

as per H.R. 25 § 504.

So the IRS may disappear; auditors do not.  They just may be wearing state badges. 

The Family Consumption Allowance

H.R. 25 attempts to address one of the biggest criticisms of a consumption tax: poorer households generally spend a greater proportion of their income on necessities.  The bill therefore creates a monthly Family Consumption Allowance, commonly called the "prebate."

Under this "prebate," a qualifying family would receive a monthly amount calculated by multiplying the federal sales-tax rate by the applicable monthly poverty level.

But there is a catch here, too.  The family has to register.

Under H.R. 25 § 301–305, the registration requires information including the names and Social Security numbers of family members sharing the household.

So the system that says:  "You don't have to deal with the IRS anymore" still requires Americans who want their monthly federal consumption allowance to register with the sales-tax administering authority.

Again: Different tax system. Different paperwork. 

So, What Could Possibly Go Wrong?

Now we get to the part every reasonable taxpayer should be asking about.  Not because H.R. 25 is necessarily evil.  Not because the current tax system is wonderful.  But because every complicated government system eventually encounters the law of unintended consequences.

1. The "23 percent" problem

The 23-percent rate is tax-inclusive.  On a conventional tax-exclusive basis, it is approximately 30 percent.  That distinction could become a political and consumer-relations headache.

2. The state bureaucracy problem

Instead of one primary federal tax administrator, taxpayers could be dealing with state agencies administering a federal tax under federal regulations.  That could produce substantial differences in administration, enforcement culture and taxpayer experience.  The Tax Foundation has specifically identified this concern, noting that taxpayers could effectively encounter as many as 51 administering agencies rather than one IRS.

3. The "what is a service?" problem

The more the economy moves toward services, subscriptions, digital products, artificial intelligence and hybrid transactions, the harder it becomes to draw a bright line around taxable consumption.  State courts already struggle with this problem.  A national system will not make the question disappear.

4. The state-tax stacking problem

Nothing in H.R. 25 abolishes state and local taxation.  As I noted above, a federal consumption tax could very well coexist with state and local sales taxes.  The cash register could become a rather crowded neighborhood.

5. The evasion problem

A very high retail tax creates a substantial incentive to avoid the tax.  

• Buy used instead of new.
• Buy from someone who does not collect.
• Buy across borders.
• Pay cash.
• Barter.
• Call a taxable sale a "service."
• Call a service a "business input."

The higher the tax, the more valuable avoidance becomes.  The bill therefore contains substantial enforcement provisions which brings us right back to audits, records, penalties and government enforcement; none of which address the obvious black market this bill would create.  

6. The "Congress can change its mind" problem

Perhaps the most interesting constitutional wrinkle is the Sixteenth Amendment.  H.R. 25 states that Congress finds that the Sixteenth Amendment should be repealed.  

Wait, what?!  Why get rid of the 16th Amendment?

There is nothing defective about the 16th Amendment that requires repeal.  H.R. 25's sponsors simply want it repealed for a strategic reason: to prevent a future Congress from bringing back a federal income tax after the Fair Tax has replaced it.

Confused?  Let me break this down for you.

The Sixteenth Amendment says:

“The Congress shall have power to lay and collect taxes on incomes, from whatever source derived, without apportionment among the several States…”

The Supreme Court has repeatedly explained that the Amendment removed the constitutional obstacle that Pollock v. Farmers' Loan & Trust Co., 157 U.S. 429 (1895), 158 U.S. 601 (1895), had created for federal income taxation. In Brushaber v. Union Pacific Railroad Co., 240 U.S. 1 (1916), the Court explained that the Amendment confirmed Congress's ability to impose income taxes without apportionment.

So why does H.R. 25 want it gone?  Because repealing the Internal Revenue Code is not the same thing as repealing the constitutional power to tax income.  H.R. 25 would repeal the federal income-tax statutes, but the Sixteenth Amendment would remain sitting in the Constitution.

That means a future Congress could theoretically say:  "Well, we tried this national sales-tax thing and it didn't work.  Let's enact an income tax again."  And Congress wouldn't first have to amend the Constitution to obtain the power to tax income. The constitutional authority would already be there.

That is precisely why H.R. 25 contains its rather extraordinary seven-year sunset provision.  Section 401 provides that if the Sixteenth Amendment isn't repealed within seven years after enactment, the Fair Tax provisions eventually terminate.

Basically, H.R. 25 sponsors want to remove the safety net under their high wire act. 

The Bottom Line

There is nothing inherently unconstitutional about Congress replacing one method of federal taxation with another. The Constitution gives Congress broad taxing authority, subject to constitutional limitations.

Nor is there anything inherently sinister about allowing states to administer a federal tax. Congress has used federal-state cooperative arrangements in numerous areas of government.

The interesting question is whether the proposed system would actually be simpler for Americans.  And it might be.

It might also turn the United States into a nationwide sales-tax laboratory in which 50 states, federal regulators, federal courts, state courts, businesses and taxpayers spend the next decade litigating what exactly constitutes taxable consumption.

And that is the part worth watching.

So, while the IRS may be leaving the stage, the Treasury, state tax agencies, auditors, federal regulations, state regulations, federal courts, state courts, record keeping requirements, penalties and a brand-new Sales Tax Bureau are just waiting in the wings to snatch up your disposable income.

Essentially, same government, new cash register.  And if that sounds suspiciously like the plot twist at the end of a tax-law thriller, well...welcome to the National Sales Tax!

 

 

Who Watches the Watchers? Congress, Jack Smith, and the Constitutional Cloak

There is something particularly uncomfortable about a prosecutor being questioned about whether the government crossed a constitutional line.

The government investigates. Congress investigates the government. And eventually, the investigator himself becomes the subject of the investigation.

That is roughly where former Special Counsel Jack Smith finds himself.

The controversy concerns an FBI investigation known as Arctic Frost, which began in April 2022 and was later folded into the investigation overseen by Smith after he was appointed special counsel in November 2022. Among other things, investigators obtained telephone records belonging to members of Congress, including numerous Republican lawmakers, during an investigation into efforts to interfere with the 2020 presidential election.

The records were generally described as toll records: information showing numbers called, numbers received, dates, times, and duration—not the substantive content of the calls. That distinction matters. 

So does something else.

The Constitution has a provision specifically designed to prevent the executive branch from using its investigative power to interfere with Congress's legislative work.

It is called the Speech or Debate Clause and it is hiding in plain sight.

So, uh, the Speech or Debate Clause. What's That?

The Speech or Debate Clause is found in Article I, § 6, cl. 1 of the United States Constitution.  It provides:

“for any Speech or Debate in either House, [Senators and Representatives] shall not be questioned in any other Place.”

The provision is not merely a constitutional version of parliamentary courtesy.  It is a separation-of-powers provision.

The Framers understood the danger of allowing the executive or judiciary to intimidate legislators for doing the job the Constitution assigned to them. The Supreme Court has therefore interpreted the clause broadly enough to protect more than words spoken on the House or Senate floor.

In Gravel v. United States, 408 U.S. 606 (1972), the Supreme Court explained that the protection extends to acts that are an integral part of the deliberative and communicative processes by which members participate in congressional proceedings.

In Eastland v. United States Servicemen's Fund, 421 U.S. 491 (1975), the Court likewise recognized congressional investigation—including the issuance of subpoenas—as falling within the legitimate legislative sphere when Congress is exercising its investigative authority.

The principle is therefore broader than:

“Congressmen can't be sued for something they say during a speech.”

Rather, it is closer to:

“The other branches generally cannot interfere with legitimate legislative acts simply because they dislike, disagree with, or want to investigate those acts.”

That distinction becomes important when the government's investigative machinery begins examining a congressman's communications.

So, Does the Clause Protect a Congressman's Phone Records?

This is where the story gets considerably more complicated.  The answer is not automatically.

The Speech or Debate Clause does not place every piece of information belonging to a member of Congress inside a constitutional vault.

The Supreme Court's test is functional and examines whether the particular activity was a legislative act?

That question was squarely presented when the government seized Representative Scott Perry's cellphone during the January 6 investigation.

In In re Sealed Case, 80 F.4th 355 (D.C. Cir. 2023), the D.C. Circuit held that the Speech or Debate Clause required a fact-specific examination of Perry's communications. Some communications concerning legislative activity—including communications with other members about the 2020 election-certification vote—could be protected. Other communications were not automatically protected merely because Perry was a member of Congress.

That case is important because it prevents an overly simplistic argument.  So, the constitutional question isn't:

“Was the person a member of Congress?”

But is:

“What was the member doing, and was that activity legislative?”

The D.C. Circuit put it plainly: the inquiry must be conducted communication by communication under the test established in Gravel.

And that brings us back to Arctic Frost.

The Arctic Frost Phone Records

During the investigation, federal investigators obtained telephone records relating to members of Congress.  Some requests covered a relatively narrow period surrounding January 6, 2021. Others reportedly covered considerably longer periods.

The government's stated investigative interest was not simply whether members of Congress were talking to someone. Investigators were attempting to determine who was communicating with whom concerning efforts to influence the electoral-certification process.

That provides the government's side of the constitutional argument.

If investigators were attempting to determine whether a crime had been committed, and the telephone records merely established communications between individuals, the government could argue that it was obtaining ordinary investigative evidence rather than interrogating a member about a legislative act.

But there is an obvious constitutional problem on the other side:  Who a legislator communicates with (and when) can reveal what is happening inside the legislative process.

A phone record showing that a senator spoke with a particular person immediately before a congressional vote does not tell the government what was said.  But it may tell the government something about the legislator's legislative activity.  That is precisely why the Speech or Debate Clause exists.

And it is why the issue is not nearly as simple as saying either “phone records aren't protected” or “Congressmen's phone records are absolutely protected.”

The existing case law requires a much more precise inquiry.

Then Jack Smith Had to Explain It to Congress

Jack Smith was subpoenaed by the House Judiciary Committee and ultimately gave a closed-door deposition on December 17, 2025.  During that deposition, Smith defended the acquisition of toll records and maintained that his office took the Speech or Debate Clause seriously.

He also maintained that the toll records themselves did not contain the content of calls or messages.  That distinction would become extremely important.  Because the controversy eventually moved beyond what the government obtained to what Smith told Congress about what the government obtained.

In July 2026, Chairman Jim Jordan referred Smith to the Department of Justice for possible prosecution. The referral alleges that Smith's sworn testimony created the impression that neither he nor his team had obtained or reviewed the contents of lawmakers' text messages.

Subsequently released records, according to the committee, indicated that Smith's investigative team had in fact accessed the content of messages involving more than 40 members of Congress and White House personnel, including material that had been subject to a DOJ “filter team” intended to screen potentially privileged material.

Smith's attorneys dispute that characterization, arguing that the questioning concerned particular subpoenas and toll records rather than every source of information that investigators might have possessed.

And that distinction is legally significant. Because being incomplete, evasive, confusing, or even misleading is not automatically the same thing as committing perjury or making a prosecutable false statement.

The government would have to prove the elements of an actual offense.

What Law Makes Lying to Congress a Crime?

There are several possibilities.  The most obvious is perjury.

Under 18 U.S.C. § 1621, a person who, after taking an oath to testify truthfully, willfully makes a material statement that the person does not believe to be true can be convicted of perjury and face up to five years' imprisonment.

There is also 18 U.S.C. § 1001, the federal false-statements statute.

This statute is particularly interesting because Congress specifically amended it in 1996 to cover false statements made in matters within the jurisdiction of Congress and the legislative branch.

The basic requirements are not simply:

“Someone said something wrong.”

The government generally must establish a knowingly and willfully false statement concerning a material matter within the statute's jurisdiction.  That is a substantially higher bar than proving that congressional testimony was inaccurate.

And that is where the word “knowingly” becomes the star of the show.

If Smith misunderstood a question, forgot something, answered a narrower question than the questioner intended, or accurately described one category of records while failing to volunteer information about another, that is one thing.

If, on the other hand, the evidence established that he knew a material statement was false and deliberately made it anyway, the legal landscape would be very different.

What About Contempt of Congress?

There is another misconception worth clearing up.  Congressional contempt is not simply the statutory penalty for lying.

Under 2 U.S.C. § 192, a witness who is summoned before Congress and willfully refuses to testify or refuses to answer a pertinent question can commit a misdemeanor.  In other words, contempt traditionally concerns things such as:  I refuse to answer.  

It is not simply:  I answered, but Congress believes I lied.

False testimony presents a different legal problem.  Congress can refer alleged criminal conduct to the Department of Justice. It can also use its institutional powers to investigate and, under certain circumstances, employ its contempt authority.  

But a congressional committee does not simply declare:  You lied. You're guilty because criminal guilt remains a matter for the criminal-justice system.

So Should Jack Smith Have Been Sanctioned?

This is where the answer needs a lawyer's annoying but necessary qualifier:

If the evidence establishes that Smith knowingly made materially false statements under oath, then there were (and are) legal mechanisms for holding him accountable.

The existence of those mechanisms is not hypothetical. The House Judiciary Committee has already used one of them: a criminal referral to the Department of Justice.

But whether Smith actually committed perjury or violated § 1001 depends upon facts that must be established, not merely upon the existence of conflicting descriptions of his testimony and the underlying records.

That distinction matters because the law does not criminalize every misleading statement.

For perjury, the government would need to prove the necessary elements, including the oath, falsity, materiality, and the requisite knowing and willful state of mind.  For § 1001, the government would likewise have to establish a materially false statement made knowingly and willfully.

The question therefore isn't simply:  Did Jack Smith mislead Congress?  Rather, the legally useful question is: Did Jack Smith knowingly and willfully make a materially false statement to Congress?

Those are two very different questions.

And Then There Is the Bigger Constitutional Question

The most fascinating part of this story may actually be separate from whether Smith's congressional testimony was truthful.  It is whether the government's acquisition of congressional communications properly accounted for the Speech or Debate Clause in the first place.

The D.C. Circuit's decision in In re Sealed Case demonstrates why.

The constitutional protection is functional. Some congressional communications are protected because they are legislative acts. Others are not.  And when government investigators seize or obtain communications that may contain protected legislative material, the Constitution requires more than simply saying:  Trust us. We'll sort it out later.

In United States v. Rayburn House Office Building, Room 2113, 497 F.3d 654 (D.C. Cir. 2007), the D.C. Circuit held that the Executive Branch had to provide a member an opportunity to assert Speech or Debate protection before reviewing materials likely to contain privileged legislative material.

That principle became part of the procedural backdrop to the Perry litigation and is one reason the constitutional issue deserves more attention than the shorthand phrase “phone records.”

Because the real question is not merely whether the government knew who called whom.  It is whether the government's investigative process intruded upon the constitutional sphere Congress is entitled to occupy without executive interference.

The Irony of the Constitution

There is a delicious constitutional irony here.

The Speech or Debate Clause was designed to protect Congress from the other branches.

Congress investigates the Executive Branch.  The Executive Branch investigates people connected to Congress.  Congress then investigates the Executive Branch's investigation. And eventually the investigator is subpoenaed by Congress to explain what happened.

That circularity is not necessarily a constitutional defect.  It is, in part, the constitutional system doing what it was designed to do:  checking power with power.

But the same system also demands something less exciting and considerably more important:  evidence.

The constitutional question surrounding the congressional phone records deserves serious examination and so does the question of whether congressional testimony crossed the line from an incomplete explanation into a knowingly false statement.

Those questions should not be answered by political allegiance. They should be answered by the Constitution, the statutes Congress enacted, and the evidence.

And those three things don't always produce the answer social media wants.

An Uncomfortable Reality Check

The Speech or Debate Clause isn't a congressional invisibility cloak. It doesn't mean a member of Congress can commit a crime and announce, “I'm legislating.” But neither is a congressional badge a constitutional bullseye.

The Framers deliberately built a wall around legitimate legislative activity because they understood that a legislature cannot remain independent if the executive branch can investigate the legislators every time it dislikes what they are doing.

And there is an equally important rule on the other side of that wall:

If you voluntarily walk into Congress, raise your hand, swear to tell the truth, and start answering questions, the Constitution does not hand you a magic eraser for inconvenient facts.

For Jack Smith, that may ultimately be the more uncomfortable constitutional question.  The man who once stood on the government's side of the subpoena is now on the receiving end of one.

And this time, Congress is holding the subpoena.

 

Big Brother is Coming for Your Tomatoes

While the U.S.A. has its share of problems, there are a whole lot of reasons that I'm grateful to be living in America rather that most anywhere else.

Doggone but there are lots of reasons to be thankful to be an American.  

For example, I'm thankful I live in America (ain't it grand?!). I'm thankful for my kids, wife, brothers and sisters, and my dog, Ziggy (isn't he the cutest?).

I'm thankful for clean, running water, an air conditioner that works in the summer heat and (for that matter) electricity that flows freely (or controlled by the government so that it's cold in the winter and hot in the summer). For paved roads and supermarkets that are full of food and other stuff readily available for purchase (instead of just for looking at - like what you might see in most communist countries like North Korea and parts of China).

What I'm not particularly thankful for is government regulation that reaches beyond what it should be.

I bring this up because the other day I was listening to an internet pundit talk about how people's personal backyard gardens are a violation (or can be a violation) of the federal Commerce Clause because it interferes with interstate commerce by reducing the amount of produce they would normally purchase were they not to have a personal garden.

So, before we get too far into this, what exactly is the Commerce Clause?

The Commerce Clause (found in Article I, Section 8 of the U.S. Constitution) gives Congress the power to regulate trade with foreign nations, Native American tribes, and between states. Its main purpose is to prevent individual states from passing laws that restrict trade and to create a unified, national economy.

Because the Constitution doesn't strictly define the word "commerce," the exact limit of federal power is heavily debated. While Congress is supposed to regulate cross-state trade, it has occasionally used this power to regulate seemingly local activities that have a widespread national impact. 

For example, the interpretation of what Congress can regulate has expanded significantly over the years. Congress has used the Commerce Clause to:

• Set national workplace and safety standards.
• Ban discrimination in public places and businesses.
• Regulate environmental protections and product quality.

While there is no federal law prohibiting backyard gardens, under some circumstances, Congress could regulate activities associated with personal gardening under the Commerce Clause if those activities substantially affected interstate commerce.

And government kinda did this in 1942 when the SCOTUS handed down its decision in Wickard v. Filburn, 317 U.S. 111 (1942).  

Why Wickard is so important is that it endorsed a broad interpretation of Congress's power to regulate economic activity that, in the aggregate, affects interstate commerce.

In 1942, Farmer Filburn grew wheat.  He was so good at it that he grew more grew more wheat than permitted under the federal quotas established by the Agricultural Adjustment Act of 1938.  The problem was that under the the Agricultural Adjustment Act of 1938, the federal government regulated how much wheat farmer's could produce.

Filburn argued that the excess wheat was intended only for use on his own farm and never entered the marketplace, so Congress lacked authority to regulate it.  The SCOTUS  reasoned, however, that although Filburn's own wheat production was local and seemingly trivial, if other farmers were to make the same choice, it would collectively reduce demand in the national wheat market. 

Ultimately, the SCOTUS said that because the aggregate effect of such conduct could substantially influence interstate commerce, Congress could regulate even purely local production. 

So, could the same logic apply to backyard tomatoes?

Legally...Yes.

Practically...almost certainly not.  NOTE: that's "almost" as in it hasn't happened, yet.

Suppose you grow:

• tomatoes
• lettuce
• onions
• peppers

instead of buying them, using Wickard's reasoning, you have removed yourself from the market.

If everyone did it, national demand for tomatoes, lettuce, onions and peppers would decrease. Therefore Congress could, theoretically, regulate your private backyard garden.

Note: that doesn't mean Congress has done so.  It means Congress could and has constitutional authority to regulate private backyard gardens if it so chooses and there is NOTHING you can do about it.

Let's look at another case, shall we: Gonzales v. Raisch, 545 U.S. 1 (2005).  Gonzales addressed whether Congress could prohibit the local cultivation and use of medical marijuana that complied with state law. 

By 2005, California had legalized growing marijuana for personal medical use.

Angel Raich and Diane Monson argued that the marijuana they used or cultivated solely within California for medical purposes should not be subject to the federal Controlled Substances Act because it never entered interstate commerce.

In a 6–3 opinion written by John Paul Stevens, the Court held that Congress in fact had authority under the Commerce Clause to regulate even purely local, noncommercial cultivation.  Consequently, mere possession of said marijuana would be part of a broader regulatory scheme governing the interstate drug market.  

So, are backyard gardens unconstitutional?  Presently, there is no federal law saying: "You may not grow vegetables in your backyard."  Congress simply hasn't regulated ordinary backyard vegetable gardens. 

But, when could a backyard garden violate federal law?  Several possibilities exist.  For example: 

1. Protected plants

Growing certain plants could violate federal statutes.

Examples:

• Marijuana:  Marijuana cultivation is primarily regulated through the Controlled Substances Act (CSA), codified at 21 U.S.C. §§ 801–971.
• Coca:  Coca is a shrub in the genus Erythroxylum coca native to the Andes of South America. Cultivation of Coca is regulated under the Controlled Substances Act (21 U.S.C. §§ 801–971).
• Opium poppies:  Like marijuana and coca, opium poppies are regulated primarily through the Controlled Substances Act. 21 U.S.C. § 841(a)(1).

2. Invasive species

The Plant Protection Act (Title 7 of the United States Code, Chapter 104 (7 U.S.C. §§ 7701–7786) authorizes regulation of certain plant pests, noxious weeds, and quarantined plants.

Examples include:

• Transporting infected plant: (i.e. moving citrus trees that are infected with citrus greening disease (HLB) across a federal quarantine boundary.
• Prohibited species (like Kudzu, Giant Salvinia, Witchweed, or Hydrilla).
• Invasive weeds (like Cogongrass, Mile-a-Minute Weed, Purple Loosestrife, Giant Hogweed, or Japanese Knotweed). 

3. Federal land

Depending on which federal agency manages the land and what conduct is involved, growing crops on federal land without authorization can violate federal law.  

For example, a person who clears a patch of national forest and plants a vegetable garden without a permit could violate regulations prohibiting unauthorized occupancy or use of National Forest System lands under:

Organic Administration Act of 1897

National Forest Management Act of 1976

Regulations in 36 C.F.R. Part 261

So, suppose you were hiking in a national forest and thought:  "I'll plant six tomato plants here and come back in August."  Even though tomatoes are perfectly legal, you could still be violating federal regulations because:

• You are making unauthorized use of federal land,
• Altering federal property, and
• Depending on the circumstances, installing improvements (such as fencing or irrigation) could also be a violation of federal law.

Unauthorized farming, irrigation, fencing, or cultivation on BLM land can result in administrative, civil, or criminal enforcement under:

Federal Land Policy and Management Act of 1976 (FLPMA)

Regulations in 43 C.F.R.

National parks are managed primarily for conservation and public enjoyment.  Planting crops, disturbing vegetation, or altering the landscape generally requires authorization under:

National Park Service regulations in 36 C.F.R. Part 2 

4. Environmental laws

Certain gardening activities can implicate: the Clean Water Act

The Clean Water Act is primarily concerned with protecting "waters of the United States" (often called WOTUS). One of the most litigated questions in environmental law is what counts as a protected water or wetland.

Example 1: Filling a Wetland to Expand a Garden

Suppose you own ten acres in Idaho. Behind your house is a low, marshy area that stays wet most of the year. You think:  "This would make a perfect pumpkin patch."

So you:

• bring in twenty dump trucks of dirt,
• bury the marsh,
• install drainage pipes,
• till the new soil,
• plant pumpkins.

What you may not realize is that the marsh is a federally protected wetland connected to a nearby creek.

The federal government could argue that you discharged "fill material" into protected waters without a permit from the U.S. Army Corps of Engineers, potentially violating the Clean Water Act.

Notice: The violation isn't growing pumpkins. The violation is filling the wetland without authorization. 

Example 2: Diverting a Stream

Suppose a small stream crosses your property. To irrigate your vegetable garden you:

• Build a small earthen dam,
• Dig a new channel,
• Permanently divert the stream.

Depending on the circumstances and current law, that alteration may require federal or state authorization because you've modified a protected watercourse.  Again, the tomatoes are perfectly legal. Changing the stream is the issue.

Example 3: Dumping Soil into a Creek

Suppose you're leveling your backyard for raised beds. Instead of hauling away the extra soil, you push it into the creek behind your house. That soil can be considered "fill material."

The government isn't regulating gardening. It's regulating pollution and filling waterways.

5. Federal agricultural programs

If a farmer accepts federal subsidies, there are often restrictions regarding:

• Acreage
• Crop type
• Conservation requirements

Violations may result in loss of benefits. For example: Corn farmer and the “base acreage + conservation compliance” system:

Say a farmer in Iowa enrolls in a USDA program under the Agricultural Adjustment Act of 1938 (as amended by later Farm Bills, including the modern “Farm Bill” framework).

Farmer then receives federal subsidies based on historical production of corn and soybeans (“base acreage”), plus participation in conservation programs. 

Step 1: Acreage restriction (base acreage rule)

The farmer is told: “Your subsidy is based on 500 acres of historically planted corn.”

So even if the farmer owns 800 acres total:

• Only 500 acres qualify for payments
• The rest is not subsidized under that program

What this does in practice is that the farmer cannot simply expand subsidized production endlessly and collect more payments. The program locks in eligibility based on historical acreage.

Step 2: Crop-type restrictions (program eligibility)

Say the farmer wants to switch from corn to something else: “I think I’ll plant all hemp or pumpkins this year instead of corn.”

Depending on the specific program:

• If the land is enrolled in a commodity program, planting certain crops may eliminate eligibility for payments on that acreage
• Some programs require maintaining eligible “program crops” or reporting changes that affect payments

Separately, specialty crop programs may require:

• Specific crop categories
• Compliance with USDA definitions of “covered commodities”

So the subsidy is tied to what is planted, not just ownership of land. 

Step 3: Conservation requirements (“compliance condition”)

This is the most important legal hook.

The farmer agrees to comply with conservation rules tied to receiving subsidies under statutes like the Farm Bill conservation compliance provisions.

Example restriction: The farmer has a sloped field that tends to erode into a nearby stream.

USDA requires:

• Maintaining a buffer strip of grass near waterways, or
• Using contour plowing / no-till practices, or
• Not draining certain wetlands (“sodbuster” / “swampbuster” rules) 

Step 4: What happens if the farmer ignores it?

Suppose the farmer decides:  “I’m going to plow everything right up to the creek so I can plant more corn.”

And also drains a small wetland to expand acreage.  Consequences can include:

• Loss of federal subsidies
• Repayment of previously received funds
• Disqualification from future USDA programs

In some cases, violations of conservation compliance provisions can also trigger additional administrative penalties. 

The key statutory idea here is that:

These restrictions are not “criminal gardening laws.”  They are contract-like conditions attached to federal money.  When the farmer accepts subsidies under the Farm Bill framework, they are effectively agreeing: “I will follow USDA rules on land use, crops, and conservation in exchange for payments.”

So, where do state and local regulations come into play?  This is where most restrictions/problems actually arise.

1. HOA Rules

HOA rules can become a problem for backyard gardens because they don’t regulate whether you can garden in a general sense.  Rather, they regulate how your property must look and be used, and those rules are enforceable through contract law (your HOA agreement) plus fines, liens, and even foreclosure in extreme cases.

Here are a few common, more concrete ways it HOA rules play out: 

a. Front-yard vegetable garden bans

A homeowner replaces grass in the front yard with raised vegetable beds (tomatoes, peppers, lettuce).

The HOA rules require:

• “Maintained turf grass in visible yard areas,” or
• “Landscaping must be ornamental”

Result:

• The HOA can demand removal of the garden
• Impose daily fines until compliance
• In some states, place a lien on the property for unpaid fines

Even though nothing is illegal under state or federal law, it violates a private land-use covenant. 

b. “Visibility” and aesthetic rules

A backyard garden may be allowed, but:

• Fences above a certain height are prohibited
• Compost bins must be screened from view
• Rain barrels or irrigation systems must be hidden
• Hoop houses or greenhouses may require prior approval

Example:  A homeowner installs a small greenhouse to extend the growing season. The HOA rejects it because it is not an “approved structure” or doesn’t match neighborhood aesthetics. 

c. Restrictions on structures and raised beds

Some HOAs regulate:

• Maximum height of raised beds
• Materials (no corrugated metal or untreated wood)
• Placement (must be behind a sightline fence)
• Prohibition on “agricultural structures”

Example: A homeowner builds 3-foot-high cedar raised beds for a wheelchair-accessible garden. The HOA claims they exceed permitted “landscaping height limits.” 

d. “Nuisance” enforcement (odor, pests, appearance)

Even if gardening is allowed, HOAs often have broad nuisance clauses. Example issues:

• Compost attracts rodents or insects
• Garden becomes overgrown or “weedy” by HOA standards
• Chicken manure or compost odors
• Visible dead plants or unharvested plots

The HOA can label it a “nuisance condition” and require remediation. 

e. Water use and irrigation restrictions

Some HOAs impose rules on:

• Visible drip irrigation lines
• Watering schedules (especially in drought areas)
• Runoff into common areas or neighbors’ property

Example: A drip irrigation system leaks onto a sidewalk and stains it. The HOA requires modification or fines the owner. 

The bottom line is that a backyard garden usually becomes an HOA issue not because it’s “agricultural,” but because it may conflict with:

• aesthetic standards
• uniform landscaping requirements
• architectural control rules
• nuisance provisions
• approval requirements for structures

So the tension is that federal law generally doesn’t care if you grow tomatoes. HOAs often care a great deal about what your yard looks like while you do it.

2. Municipal ordinances

Municipal ordinances can affect backyard gardening because cities regulate land use, property maintenance, and “public welfare” under their police powers. Unlike federal law (which rarely touches home gardening), city codes can directly govern what you can grow, where you can grow it, and what conditions your yard must meet.

• height of vegetation
• weeds
• composting
• setbacks
• irrigation
• nuisance conditions

Here are some typical ways this shows up: 

a. Los Angeles, California

Los Angeles generally allows backyard gardens, but regulation comes through zoning, nuisance, and landscape ordinances under the Los Angeles Municipal Code.  Common barriers include:

• Front yard landscaping requirements in many zones (especially for visible residential frontage)
• Restrictions on converting significant portions of front yards to non-landscaped uses
• “Public nuisance” provisions if a garden becomes overgrown, attracts pests, or creates runoff issues
• Rules affecting accessory structures (greenhouses, tall fencing, sheds used for gardening)

Practical effect: A homeowner can grow vegetables in a backyard, but converting a front yard into a full edible garden can trigger code enforcement if it conflicts with required “landscaped appearance” standards in certain zones. 

b. Spokane, Washington

Spokane’s municipal code includes property maintenance and zoning rules that can indirectly restrict gardening. Common issues include:

• Vegetation height limits in some residential contexts (weed/unsightly growth rules)
• “Nuisance vegetation” enforcement if a garden is perceived as unmaintained or overgrown
• Restrictions on accessory structures without permits (greenhouses, hoop houses)
• Rules about drainage and runoff into sidewalks or neighboring property

Practical effect: A productive garden is fine, but if it becomes visually “unmaintained” under code definitions, it may be cited as a nuisance. 

c. Fort Worth, Texas

Fort Worth regulates property conditions through its code compliance ordinances and zoning rules. Common barriers include:

• “Weed and vegetation” ordinances requiring property maintenance standards
• Limits on accumulation of brush, compost piles, or organic debris
• Restrictions on accessory structures without permits
• Enforcement against “unsanitary conditions” (often tied to pest attraction or standing water)

Practical effect: A compost-heavy or densely planted garden can be cited if inspectors classify it as a sanitation or maintenance issue rather than an agricultural use. 

d. Charleston, South Carolina

Charleston is more preservation and aesthetics-focused due to historic districts and design review rules. Common barriers include:

• Strict rules in historic districts regarding visible yard changes
• Requirements that front yards maintain certain “landscaped” character
• Restrictions on structures visible from the street (raised beds, greenhouses, fencing)
• Design review approval for exterior modifications in protected areas

Practical effect: Even modest front-yard vegetable gardens can face review if they alter the historic visual character of the neighborhood. 

Across all cities, the barriers usually fall into five categories:

1. Aesthetic regulations (must look “maintained” or “landscaped”)
2. Nuisance laws (odor, pests, overgrowth, water runoff)
3. Zoning restrictions (what uses are allowed in residential districts)
4. Building/permit rules (greenhouses, fences, irrigation systems)
5. Historic or design review overlays (appearance controls in certain neighborhoods) 

The key takeaway here is that Municipal law doesn’t typically say: “You may not grow food in your yard.” Instead, it regulates by having regulations that say: “Your property must meet certain appearance, safety, zoning, and maintenance standards.”

And those standards can indirectly limit how large, visible, or structured a backyard garden can be - even when gardening itself is perfectly lawful.

3. Water Restrictions

Water restrictions usually don’t ban backyard gardens directly, but they can make them legally or practically impossible to maintain by limiting when, how, and how much you can irrigate.  A number of cities around the country have specific regulations in place that can hamper a person's ability to even grow a backyard garden.  For example:

a. Mesa, Arizona (Stage 2 drought restrictions)

Mesa has had formal drought response rules limiting outdoor irrigation.  Residents are restricted to:

• 2 outdoor watering days per week
• No watering during mid-day (typically 10 a.m.–5 p.m.)
• Enforcement through fines for violations

How might this affects a backyard garden: A vegetable garden may legally exist, but:

• You cannot water it daily in summer heat
• You must conform to assigned watering days
• Midday irrigation (when plants most need cooling) is prohibited

Practical result:  A small garden can survive; a high-water garden (corn, squash, raised beds in heat) may become difficult or impossible to maintain. 

b. Spanish Fork, Utah (pressurized irrigation + conservation rules)

Spanish Fork uses a metered pressurized irrigation system, meaning outdoor water use is separately measured and billed. Key features include:

• Water use is metered and tier-priced (heavy use costs more)
• City encourages efficient irrigation systems (drip, smart controllers)
• Water waste (runoff, overspray) is prohibited under city code enforcement frameworks

How might this affects backyard gardens:

• You can water daily, but it becomes financially punitive at higher usage tiers
• Inefficient garden watering (sprinklers, evaporation loss) raises costs quickly
• Waste violations (runoff into sidewalks/storm drains) can trigger enforcement

Practical result: Gardens are not banned, but price signals + waste rules strongly discourage water-heavy gardening styles. 

c. Lincoln, Nebraska (voluntary + drought-stage watering rules)

Lincoln typically uses a tiered drought plan (voluntary → mandatory restrictions depending on conditions).  A typical structure includes:

• Assigned watering days based on address or odd/even systems during drought stages
• Time-of-day restrictions (often discouraging midday watering)
• Requests to reduce outdoor watering substantially during shortages

How this affects backyard gardens:

• In normal conditions: gardens are unrestricted
• During drought stages:
  • Watering may be limited to specific days
  • Watering may be restricted to early morning/evening only
  • Heavy irrigation may be discouraged or limited

Practical result: Vegetable gardens are usually tolerated, but during drought declarations they are treated the same as lawns; not given special exemption protection. 

d. Boston, Massachusetts (MWRA / local drought advisory system)

Boston relies on regional water management advisories (Massachusetts Water Resources Authority + state drought declarations).

Typical measures during drought alerts include:

• Requests or requirements to limit outdoor watering to certain days/times
• Prohibitions on daytime irrigation during drought emergencies
• Encouragement to reduce nonessential outdoor water use (lawns, landscaping, gardens)

How this affects backyard gardens:

• In normal conditions: no meaningful restriction
• During drought emergencies:
  • Watering windows may be limited (morning/evening only)
  • Outdoor irrigation may be restricted entirely on certain days
  • “Non-essential outdoor water use” can include ornamental gardens

Practical result: Food gardens are not exempt; they may be treated the same as landscaping during severe drought stages. 

e. Tulsa, Oklahoma (Water & Sewer Department drought stages)

Tulsa uses a structured drought response plan with escalating stages. Typical restrictions during drought stages include:

• Limits on lawn/garden watering days per week
• Time restrictions (no midday watering)
• Mandatory reduction targets for outdoor water use
• Possible bans on certain outdoor watering activities during severe drought

How this affects backyard gardens:

• Vegetable gardens are not separately protected
• Restrictions apply broadly to “outdoor irrigation”
• Higher drought stages can reduce watering frequency to once or twice per week

Practical result: A backyard garden is legally allowed, but watering schedules may not match plant needs, especially in hot summers. 

So, even though each city is different, the legal structure is very consistent:

 

1. Cities do NOT ban gardens.  They regulate timing, frequency, method, and volume.

2. Gardens are treated like lawns. Most ordinances define restrictions as: “outdoor watering” or “landscape irrigation”

They rarely distinguish: vegetables vs grass vs ornamentals

3. The real legal mechanism is drought stage authority.  Restrictions are triggered by:

• Municipal drought declarations
• Water supply shortages
• State emergency conservation plans 

So, cities don't come out and say: “You may not have a backyard garden.”  It is: “You may have one, but your ability to irrigate it may be limited by scheduled days, time-of-day bans, or usage pricing during drought conditions.”

So the “barrier” is almost always water availability rules applied broadly to outdoor irrigation, not any law specifically targeting gardening itself.

So, could/would Congress actually ever ban home gardens?

Constitutionally?  Probably, yes under current Commerce Clause precedent. If Congress could demonstrate a sufficient effect on interstate commerce under Wickard and Raich, then restrictions to backyard gardens are entirely possibly.

Economically?  Most likely, not as it would be extraordinarily expensive because the cost of nationwide enforcement would far outweigh any effect those gardens have on interstate commerce.  But then remember those instances where, during the Covid scare, when police went block by block ordering back into their homes?  So, maybe.

Politically?  Almost certainly, impossible and in an election year, not a chance.  Of course, there are those few radical progressives that might actually try and pull something, well, radical but telling a retiree that they can't have their backyard tomatoes would be like taking candy from a baby.

And you can just imagine what that would look like.