Wickard v. Filburn (1942)

Apr 16

The New Deal Revolution and the Expansion of Congress’s Commerce Power

The change in Commerce Clause interpretation and case law from Schechter Poultry Company v. U.S. (1935) to NLRB v. Jones & Laughlin Steel (1937), U.S. v. Darby (1941), and Wickard v. Filburn (1942) was revolutionary. The change was radical and quick. Commerce Clause case law was unrecognizable from what it had been just a few years earlier. The principle of stare decisis in this domain of constitutional law was largely ignored. If one wishes to identify concrete instances of FDR’s and SCOTUS’s effect on American politics and constitutional law, this dramatic shift in Commerce Clause case law is it. Prior to NLRB v. Jones & Laughlin Steel, the United States Supreme Court abided by the distinction between intrastate and interstate commerce in one way or another. For example, it did so by differentiating between the production of goods (intrastate commerce) and their movement between states or to other nations (interstate or international commerce). The older distinction took for granted that Congress can only regulate commercial activity under the Commerce Clause. In the new Commerce Clause case law regime, the Court abandoned the distinction between production and traffic of commercial goods as well as commercial and noncommercial activity.

To the astonishment of originalists who believe that words have specific meaning, the Wickard Court decided in an Orwellian twist that under the Commerce Clause, Congress can regulate the production of non-commercial goods that are never transported. To advocates of living constitutionalism, Wickard v. Filburn contributed to the natural evolution of the ongoing process by which the meaning of the Constitution changed to fit the circumstances of the Great Depression and the increasingly national and global economy. In their view, the meaning of the Constitution had to evolve to be relevant to the circumstances of the times. Justice Jackson ended his opinion in Wickard v. Filburn by stating that “we have nothing to do,” suggesting that the Court was merely leaving in place a law and policy that did not violate the Constitution. Analysis and review of the case suggest that the Court did more than nothing.

Wickard v. Filburn is among the most perplexing cases decided by the Supreme Court. It is the consequence of the Secretary of Agriculture Claude Wickard’s creation of a national wheat quota under the authority of the Agricultural Adjustment Act. The purpose of the quota was to help struggling wheat farmers who were plagued by overproduction and low prices. The thinking behind the quota was simple economics, lowering the supply of wheat will raise its price. Rising prices will bring relief to farmers struggling to make a profit. Under the policy, each farmer subjected to the policy was allotted a certain acreage on which to grow wheat. Roscoe Filburn, a dairy farmer in Ohio, was allotted 11.1 acres to grow wheat. He exceeded this amount by growing wheat on 23 acres. He harvested 239 bushels of wheat above his quota in clear violation of federal law. Consequently, he was fined $117.11 ($2,657.62 in 2026 dollars), 49 cents for each bushel of wheat above the quota. In addition, his marketing card was not issued until he paid the fine. Without the card, Filburn could not sell his wheat. The consequences of the federal policy were significant for a small family farm.

The Legal Issues in Wickard v. Filburn

The primary issue in Wickard v. Filburn was the constitutionality of the wheat quota under which Roscoe Filburn was fined. The Court had to decide if Congress had the power to regulate wheat that Filburn did not sell, wheat that never left his farm. He used the unsold wheat to feed his livestock and his family as well as for seed for the next year’s planting. When Filburn planted his wheat in 1941, the penalty for exceeding the quota was 15 cents per bushel. When he harvested the wheat that same season, the penalty had more than tripled to 49 cents a bushel. The increased penalty was announced just 5 days prior to a legally-mandated national referendum of wheat farmers, who voted for the imposition of the quota that year. Filburn and his fellow Ohio farmers, however, opposed the quota. In his lawsuit, Filburn challenged the timing of the quota increase, arguing that the higher amount was imposed retroactively and constituted taking property without due process of law, a violation of the Fifth Amendment. A federal district court agreed that the retroactive quota increase was a taking without due process of law and the fine was lowered to 15 cents. Agriculture Secretary Claude Wickard appealed the decision to the U.S. Supreme Court.

The Court’s Ruling in Wickard v. Filburn

The Court ruled unanimously for Secretary Wickard. Justice Jackson wrote for the Court. He dismissed the due process claim and narrowed the case to a matter of the quotas’ constitutionality under the Commerce Clause. He suggested that the case “would merit little consideration” were it not for an important difference between Wickard v. Filburn and the Court’s recent decision in United States v. Darby. In Darby, the Court ruled that Congress can regulate production as part of its Commerce Clause power. In Wickard, the Court had to decide if Congress’s regulatory power under the Commerce Clause extended to non-commercial production of agricultural goods that did not leave the farm on which they were produced. Wheat grown for private consumption was subject to the quota.

Justice Jackson’s justification for upholding the wheat quota made three central assumptions. First, the meaning of the Commerce Clause should not be determined “by reference to any formula which would give controlling force to nomenclature such as ‘production’ and ‘indirect’ and foreclose consideration of the actual effects of the activity in question upon interstate commerce.” What determines the constitutionality of congressional regulation of commerce is its effect on interstate commerce not “the mechanical application of legal formulas.” As a corollary to this first assumption, Justice Jackson argued that commercial production is not necessarily local because it occurs in one place and is consumed in that same place. The production of goods can be considered within the purview of Congress’s power to regulate interstate or international commerce if it has an effect on national and/or international markets. Third, what needs to be considered in the classification of commerce is not the scope of the actual effect of the appellee’s activity on interstate or international commerce, but the aggregate effect of such behavior, what became known as the “aggregation doctrine.” One small, family farmer’s wheat production may not have a significant effect on the national wheat market, but if multiplied by hundreds or thousands of small farmers it would have a significant effect. When these three assumptions are combined, Justice Jackson concluded that Congress has the power to regulate the production of local, noncommercial goods that has a national or international effect, not in itself, but in the aggregate. Under this reading of the Commerce Clause, the long-held distinction between intrastate and interstate commerce evaporated.

Wickard v. Filburn Legacy

While Wickard v. Filburn could have exploded federal regulation of private behavior, its effect was largely muted. Why? Laws and policies exist in a cultural context. Government may be able, in some circumstances, to exceed the boundaries of its constitutional power. In a healthy constitutional republic, the damage done by an encroaching government will be minimized by cultural constraints that resist and mitigate imprudent and unconstitutional expansions of power. Because of the Court’s ruling in Wickard v. Filburn, the federal government could conceivably limit what Americans grow in their household gardens. It could regulate just about anything that influences interstate commerce, e.g., the size of families, the academic majors available to college students, the content of ideas that affect consumer taste, or the diet of consumers. Post-Wickard American culture, however, would not tolerate such egregious usurpations of power.

That Wickard did not result in maximum harm does not mean that it was harmless. Federal regulation of small farmers like Roscoe Filburn contributed to the decline of family farms in the U.S. Filburn was the fifth and final generation of farmers in his family. The federal wheat quota was not the only factor that caused Filburn to leave the farming trade. It did, however, play a part in making it more difficult for him, in particular, and family farms, in general, to thrive. The declining viability of family farms was the price that New Dealers and the Wickard Court were willing to pay for what they believed was economic progress inspired by greater federal government control of private agricultural production.

While Wickard v. Filburn has not been overturned, it has been neutered by subsequent Courts that were composed of Justices appointed by presidents who pushed back against big government reforms created in the New Deal and Great Society eras. The Rehnquist Court, for example, struck down by a 5-4 vote the Gun-Free School Zones Act in U.S. v. Lopez (1995). The law gave Congress the power to regulate guns in and around schools, a power that existed in state law long before 1995. Congress argued that it had the power to regulate guns under the Commerce Clause. It did not attempt to regulate the sale of guns (a commercial activity) or their transportation across state lines (an interstate activity). It made possession of a gun within a 1,000-foot radius of a school a federal crime. Following the logic of Wickard v. Filburn, Congress argued that it had the constitutional power to regulate guns in school zones because guns have a harmful effect on education that, in turn, has a harmful effect on interstate commerce. A different set of Justices appointed in a different political and cultural climate than those that gave life to Wickard checked what they saw as federal encroachment on state police power. A counter-revolution of sorts was taking shape.