It may not be the most pernicious decision the Supreme Court has
ever made, but Wickard v. Filburn sure ranks up there with
them. Its expansive view of the Federal Government’s Commerce
Clause powers has paved the way to greater and greater intrusions
by federal actors into our daily lives. Now, a majority of the
Supreme Court may conclude that it justifies Obamacare’s
nationalization of one-sixth of our economy.
Enough of this nonsense! It’s long past time to cabin
Wickard as a bridge too far, a misconstruction, or a relic
of an entirely different time.
Article I, section 8, clause 3 of the Constitution
empowers Congress to “regulate commerce with foreign nations, and
among the several states, and with the Indian tribes.” As to
“commerce among the several states,” the Supreme Court has held
that Congress can reach (1) the use of the channels of interstate
commerce; (2) the instrumentalities of, or persons or things in,
interstate commerce; and (3) other activities that “substantially
affect” interstate commerce. In Wickard, the Court held
that, even if Filburn’s activities were local and didn’t involve a
commercial transaction, Congress could still regulate them because
they had a substantial effect on interstate commerce.
The conventional wisdom is that Filburn’s wheat was being
used for home consumption, but there’s more to the story. In fact,
Filburn didn’t just exceed his quota under the Agricultural
Adjustment Act of 1938 of 223 bushels by about 240 bushels. Instead
of consuming it at home, he held it for future sale, depressing the
price the Government wanted to raise, or used it as feed for
livestock, which was unregulated when sold. Feeding regulated wheat
to unregulated livestock destined for market allowed farmers like
Filburn to evade the quota program. Thus, Filburn’s commercial
activities and those of farmers like him could substantially affect
interstate commerce when aggregated.
There are other problems with the conventional wisdom.
Filburn couldn’t have been using his excess wheat for personal
consumption. One scholar has noted that, if Filburn had turned used
his excess wheat into bread for his family to eat, they would have
had enough for almost 44 one-pound loaves a day for a year. He
wasn’t a small farmer either. The AAA’s marketing quota exempted
small farms that grew less than 200 bushels; Filburn had an
allotment of 223 bushels and grew 462.
The decision is a relic too. Filburn got into trouble with
a government program that was little more than a sanctioned cartel.
The AAA was a Depression-era product, adopted at a time when the
world thought government and government-endorsed cartels were the
answer to all problems. Just think of Stalin’s Five Year Plans and
the corporatism of the Nazis and the Italian Fascists.
In addition, remember where the Nation’s attention was on
November 9, 1942, when the Court decided Wickard. The
world had been at war since September 1939, and the United States
became officially involved when Pearl Harbor was attacked on
December 7, 1941. Earlier in November 1942, the Court released its
decision in Ex parte Quirin, the case involving the Nazi
saboteurs who had landed on Long Island and in Florida in June. On
November 8, one day before the Supreme Court issued its decision,
Allied forces landed in North Africa. Clearly, it wasn’t the time
for someone like Filburn to suggest that the Government was
overreaching.
Notwithstanding its limitations, Wickard v.
Filburn has already spawned constitutional mischief. In 2005,
the Court held that the Commerce Clause empowers Congress to
prohibit the intrastate cultivation and possession of marijuana in
Gonzales v. Raich. The Court concluded that
Wickard and its progeny “foreclose” the contention that
Congress’s Commerce Clause powers cannot reach “a locally
cultivated product that is used domestically rather than sold on
the open market.” Justice Thomas dissented, noting that, if
Congress can reach a product that “has never been bought or sold,
that has never crossed state lines, and that has no demonstrable
effect on the national market,” Congress can regulate
anything.
That’s the problem with Wickard and with the
individual mandate. The Government hasn’t been able to identify
something the mandate can’t reach, and the courts have noticed. In
its decision striking down the mandate, for example, the Eleventh
Circuit found that the government’s theory “afford[ed] no limiting
principle in which to confine Congress’s enumerated [Commerce]
power.”
In The Tempting of America, Robert Bork observed
that, even if a decision like Wickard v. Filburn is too
“thoroughly embedded in our national life” to overrule, that
doesn’t mean that “the Court must necessarily repeat its mistake as
congressional regulation attempts to reach new subject
areas.”
The Court should follow Bork’s advice and refuse to let
Wickard v. Filburn do any further damage to our
constitutional republic.
