After Roe v. Wade, the constitutional case that bothered me most my first year of law school was probably Wickard v. Filburn. The case is disturbing both for its blatant distortion of the Commerce Clause and for the precedent of federal overreach it created. Now that Roe has fallen and we have a U.S. Supreme Court clearly willing to overrule bad precedent, any good conservative should hope, pray, and work to see Wickard v. Filburn overruled.
Filburn was the owner and operator of a small farm in Ohio. Under the Agricultural Adjustment Act of 1938, the federal government attempted to control the price of wheat by allotting how many acres of wheat a farmer could grow in that particular year. Filburn grew and threshed more wheat than was allotted, and then refused to pay the federal penalty.
The intended purpose of this law was “to control the volume [of wheat] moving in interstate and foreign commerce in order to avoid surpluses and shortages and the consequent abnormally low or high wheat prices and obstructions to commerce.” That is a fine intention. But the federal government has limited enumerated powers; Congress can only legislate under the powers expressly given to it by the Constitution, and the Tenth Amendment makes clear that any “powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” Therefore, any time Congress acts, even with the best of intentions, it needs to rely on a particular power enumerated in the Constitution.
In Wickard v. Filburn, the power supposedly came from the Commerce Clause, which gives Congress the power to “regulate Commerce... among the several States.” The plain language of the Commerce Clause requires that two circumstances be present for the federal government to wield this enumerated power: the situation must involve commerce, and that commerce must be “among the several States," meaning the commercial act must cross state lines. As Randy Barnett explained in an excellent article, the original meaning of the Commerce Clause is fairly straightforward:
Congress has power to specify rules to govern the manner by which people may exchange or trade goods from one state to another, to remove obstructions to domestic trade erected by state; and to both regulate and restrict the flow of goods to and from other nations (and the Indian tribes) for the purpose of promoting the domestic economy and foreign trade.
Consider for a moment what the Court did in Wickard v. Filburn. Filburn grew grain in excess of what was allowed by federal law. The facts are not entirely clear, but it seems that not only did he not sell the excess grain in interstate commerce, but he didn’t sell the excess grain at all. Filburn operated what was primarily a small dairy and poultry farm. Each year, he grew a small amount of wheat, of which he sold a portion, and kept the rest for seed, home consumption, and animal feed. The Court astonishingly ruled that
wheat grown for home consumption would have a substantial influence on price conditions on the wheat market, both because such wheat, with rising prices, may flow into the market and check price increases and, because, though never marketed, it supplies the need of the grower which would otherwise be satisfied by his purchases in the open market.
This portion of the Court’s holding is the central problem. If a crop is grown for home consumption, it might have an influence on the market price of that crop. If the farmer satisfies his own need for a crop that he would otherwise purchase on the open market by growing it himself, that will indirectly affect interstate commerce.
That might be true, but it does not change the glaring reality: The Commerce Clause is a limited enumerated power that allows Congress to regulate commerce among the several states. The holding in Wickard v. Filburn extended that power to the growing of a crop for personal consumption, which is neither commerce nor interstate activity.
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Wickard v. Filburn is an offensive activist decision, bending the Commerce Clause far beyond its plain meaning. That is cause enough to overrule it. But this holding extends beyond government overreach into the lives of small wheat farmers. Antony Davies and James R. Harrigan realized the reach of the precedent created by Wickard v. Filburn: “Since Wickard, any time Congress has wanted to exercise power not authorized by the Constitution, lawmakers have simply had to make an argument that links whatever they want to accomplish to interstate commerce.” And if the facts of Wickard are sufficient for Congress to invoke the Commerce Clause, the possibilities are endless.
If Congress does not need to show that an activity actually involves interstate commerce—or even commerce at all—but only that the activity has “a substantial influence” on interstate commerce, Congress can regulate anything. If I chop down a tree on my property and burn it in a wood stove, that activity, if performed by enough people, could affect the price of energy in interstate commerce. If I raise enough chickens that I don’t need to buy eggs and my neighbors follow suit, this could affect the price of eggs in interstate commerce. The Wickard Court goes into great detail about the unique importance of the American wheat market at the time it wrote its opinion, but the opinion does not limit itself to a crisis in the wheat market.
This case set a horrible precedent, giving Congress power far beyond what is enumerated in the Constitution. It allows the federal government to interfere in the most local and basic aspects of our lives. The Court should overrule Wickard v. Filburn. It should leave me to grow my wheat, chop my trees, and raise my chickens without congressional oversight. And it should tell Congress very clearly that regulating commerce "among the several states" means exactly that: Congress only has the constitutional authority to regulate the sale or trade of goods that cross state lines. If we are not dealing with actual interstate commercial transactions, overrule Wickard v. Filburn and leave the federal government out of it.