Con Law IThe Commerce Power

Wickard v. Filburn

In Wickard v. Filburn (1942) the Court upheld limits on wheat a farmer grew for use on his own farm, because the total (aggregate) effect of many farmers doing the same would substantially affect interstate commerce.

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After 1937, the Court asked whether an activity substantially affects interstate commerce. Wickard v. Filburn (1942) added the idea that made the modern commerce power so broad: aggregation. A single farmer's wheat may not matter to the national market, but the Court looks at the total effect of everyone doing the same thing.

Why it works

Why aggregate? Congress regulates whole markets, not single farms. A quota system aimed at national supply and price would fail if every farmer could grow unlimited wheat "for home use," because home-grown wheat replaces wheat that would have been bought. The question is whether the class of activity substantially affects commerce. If it does, Congress may regulate each instance in the class, even a small one.

Key idea

Wickard v. Filburn (1942): Congress may limit wheat grown for use on a farmer's own farm, because the aggregate effect of many farmers doing the same would substantially affect interstate commerce.

Worked example: Following Filburn's wheat

Trace the economic chain the Court relied on.
  1. Filburn grows extra wheat and feeds it to his chickens.
  2. So he does not buy that much wheat on the market.
  3. Multiply by many farmers: national demand for wheat falls.
  4. Lower demand pushes down the price that Congress's quota system was designed to raise.

Answer: Home-grown wheat affects the national market through demand. That is a substantial effect in the aggregate.

Worked example: Testing the limits of aggregation

Could the same reasoning reach any activity at all, if you add up enough instances? How did later cases answer?
  1. Wickard aggregated an economic activity: producing a commodity sold in a national market.
  2. In Lopez (1995) and Morrison (2000) the Court refused to aggregate noneconomic activity (gun possession, violent crime).
  3. In Raich (2005) it applied Wickard to another commodity grown at home.

Answer: Aggregation applies to economic activity. That limit was set decades after Wickard.

Common mistake

Thinking Filburn sold his extra wheat across state lines. He did not sell it at all; he used it on his farm. The aggregation principle, not any sale, brought it within the commerce power. Check: is the court adding up the effect of the whole class of activity?

Supporters of Wickard say it recognizes how markets work and that Congress, accountable to voters, is the right body to regulate them. Critics, including some justices, say it removes nearly every limit on the commerce power and departs from the clause's original meaning. Justice Thomas has written separately to urge reconsidering the substantial-effects test (as in his Lopez concurrence).

Which activities can be added up?
This is an educational course, not legal advice.

Practice

Pass with 3 right answers, the last 2 in a row. Each right answer earns 3 XP.

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Sources and further reading

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