Constitutional Opinions

Wickard v. Filburn: Time for It to Go!

What the Supreme Court will need to overturn in the Obamacare case.

By 3.14.12

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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.

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About the Author
Jack Park is an attorney with the Atlanta law firm Strickland Brockington Lewis LLP.