“Keep reading McCulloch till you understand it”: Why Wickard Was Obviously Correct

In comments yesterday, we heard familiar arguments that Wickard v. Filburn was wrongly decided.  But it wasn’t, and attempting to place restrictions based on the federal commerce power based on the arguments raised in Wickard would be a incoherent fiasco, just like all previous attempts to arbitrarily limit the commerce power were.

The facts of Wickard are straightforward:

The appellee for many years past has owned and operated a small farm in Montgomery County, Ohio, maintaining a herd of dairy cattle, selling milk, raising poultry, and selling poultry and eggs. It has been his practice to raise a small acreage of winter wheat, sown in the Fall and harvested in the following July; to sell a portion of the crop; to feed part to poultry and livestock on the farm, some of which is sold; to use some in making flour for home consumption, and to keep the rest for the following seeding. The intended disposition of the crop here involved has not been expressly stated.

In July of 1940, pursuant to the Agricultural Adjustment Act of 1938, as then amended, there were established for the appellee’s 1941 crop a wheat acreage allotment of 11.1 acres and a normal yield of 20.1 bushels of wheat an acre. He was given notice of such allotment in July of 1940, before the Fall planting of his 1941 crop of wheat, and again in July of 1941, before it was harvested. He sowed, however, 23 acres, and harvested from his 11.9 acres of excess acreage 239 bushels, which, under the terms of the Act as amended on May 26, 1941, constituted farm marketing excess, subject to a penalty of 49 cents a bushel, or $117.11 in all. The appellee has not paid the penalty, and he has not postponed or avoided it by storing the excess under regulations of the Secretary of Agriculture, or by delivering it up to the Secretary. The Committee, therefore, refused him a marketing card, which was, under the terms of Regulations promulgated by the Secretary, necessary to protect a buyer from liability to the penalty and upon its protecting lien.

For the reasons I stated yesterday, this is really an easy case. The wheat market created collective action problems in an insterstate commodity market. Article I explicitly empowers Congress to address these problems. Quotas on wheat production are a reasonable means of addressing these problems. The act is therefore constitutional as applied to this case.

Critics of Wickard miss the boat because they come to the case as if it is an individual rights cases rather than a case about the scope of governmental power. (It’s not a coincidence that most critics of Wickard tend to oppose federal regulation of the economy; it’s also not a coincidence that Filburn also brought a Fifth Amendment claim. Most of these federalism cases are just libertarian economic arguments in thin disguise.) They focus on whether Filburn, when he grew some winter wheat he intended to consume himself (and some of which he sold, free riding on federal regulations he refused to abide by, and some of which he fed to his commercial livestock), was engaged in interstate commerce at this precise moment. But that’s not the right question. The right question is whether wheat quotas are a reasonable part of a program to regulate an interstate market. They are, and that ends the case in the government’s favor. The federal government has the power to regulate interstate commerce, and it has the powers necessary and proper to regulate interstate commerce. The claim that plenary federal powers to regulate an interstate market cannot be applied to individual cases necessary to make the regulation effective is nonsensical. As Jackson put it, “even if appellee’s activity be local, and though it may not be regarded as commerce, it may still, whatever its nature, be reached by Congress if it exerts a substantial economic effect on interstate commerce, and this irrespective of whether such effect is what might at some earlier time have been defined as ‘direct’ or ‘indirect.'”

At this point, opponents of Wickard will turn to the slippery slope: “I can see the day coming when even your home garden is gonna be against the law!” But Wickard does not actually create an absolutely unlimited federal police power; Lopez did not overrule Wickard. Could Congress apply quotas to a small, noncommercial home garden? Maybe — if it could show that such a regulation was reasonably related to a broader regulatory scheme. Wickard doesn’t tell us, because the quotas were applied to commercial farms and Filburn was a commercial farmer. There’s not really much point in considering whether Congress can apply quotas to small noncommercial home gardens growing legal products, because 1)it’s not going to do this, and 2)in any extraordinary hypothetical circumstance where it would do this it’s likely that the regulation would be justified by a reasonable relationship to a broader regulation of interstate markets.

The slippery slope most certainly does go the other way, however. If the criticisms of Wickard sounds familiar, it’s because they’re exactly like the arguments used to assert that the Affordable Care Act was unconstitutional. “People who do not buy health insurance are not, in doing so, engaged in interstate commerce.” And it’s true! True — and completely irrelevant. The health insurance exchanges are a concededly valid regulation of interstate commerce. Guaranteed issue without a mandate would cause the exchanges to fail. Therefore, the mandate is constitutional even though it does not directly regulate interstate commerce. Article I gives the federal government the powers reasonably thought to be necessary to address problems of interstate commerce. Wickard was correct; the Court’s holding on the mandate in Sebelius was wrong.

And the problems (if you’re not a libertarian, I mean) with the arguments made by Wickard critics don’t end there, and that goes double if you think that it would exceed the commerce power for the federal government to regulate abortion clinics. Having to show that every business was engaged in interstate commerce before occupational health and safety or environmental regulations could be applied would be a disaster. Forcing the federal government to, at a minimum, show that a business was more like Heart of Atlanta and less like McClung before civil rights laws apply would be a disaster. For most Wickard critics, of course, these outcomes would be features, not bugs. But there are a few liberals who would be happy to go down this conservertarian rabbit hole because medical marijuana in California. Thankfully, Stevens et al. were much smarter than that.

I will conclude by turning things over to Akhil Amar:

The most important limit, the one we fought the Revolutionary War for, is that the people doing this to you are the people you elect. That’s the main check. The broccoli argument is like something they said when we were debating the income tax: If they can tax me, they can tax me at 100 percent! And yes, they can. But they won’t. Because you could vote them out of office. They have the power to do all sorts of ridiculous things that they won’t do because you’d vote them out of office. If they can prevent me from growing pot, can they prevent me from buying broccoli? Perhaps, but why would they if they want to be reelected? So if you ask me what the limits are, I’d say read McCulloch vs. Maryland. And reread it. And keep reading it till you understand it. The Constitution is a practical document, it’s designed to work. And the powers are designed to be flexible in order to achieve the aims of the document.