Wickard v. Filburn and the Ohio Farmer's Wheat That Expanded Federal Power

Roscoe Filburn ran a small dairy and poultry farm in Montgomery County, Ohio, not far from Dayton. Every year he planted some winter wheat, sold part of it, and kept the rest to feed his chickens and cows, grind into flour for his family and save as seed. In the fall of 1940 he sowed the crop he would harvest in 1941. Under the Agricultural Adjustment Act, the federal government had given him an allotment of a little over 11 acres of wheat for that year. He planted 23. When the harvest came in, the extra acreage had produced 239 bushels beyond his quota, and the government assessed a penalty of 49 cents a bushel. Filburn refused to pay and sued the Secretary of Agriculture, Claude Wickard. His argument had common sense on its side: most of that wheat never left his farm. How could the federal power to regulate commerce among the states reach grain that a farmer grew to feed his own animals? The Supreme Court's unanimous answer, in November 1942, became one of the most important rulings in American constitutional history.

In short: In Wickard v. Filburn, the Supreme Court held that Congress could regulate wheat a farmer grew for his own use, because such wheat, taken together with that of many other farmers, affected the national market. That reasoning became the foundation for federal labor, environmental and civil rights laws, including the Civil Rights Act of 1964. Its critics argue it left almost no limit on federal power, and the debate is still alive on the Court.

The problem the wheat quotas were meant to solve

To understand why the government cared about Filburn's extra acres, start with the farm crisis. In the 1920s and 1930s, American farmers produced more wheat than markets could absorb at decent prices. Prices collapsed. Farm families lost their land. The Depression made it worse.

The New Deal's answer was to manage supply. The Agricultural Adjustment Act of 1938 allowed the Secretary of Agriculture to set a national marketing quota for wheat and to divide it into allotments for individual farms. The idea was to keep supply in line with demand so that prices would stabilize at a level farmers could live on. Farmers voted in referendums on whether to accept quotas, and in 1941 they approved them.

The scheme only worked if farmers did not simply grow more than their allotments. Wheat grown for use on the farm mattered because a farmer who fed his own wheat to his livestock would not buy wheat on the market. If enough farmers did that, demand for market wheat would fall and prices would drop, undermining the whole program.

There was one more wrinkle. The penalty rate that applied to Filburn had been raised by an amendment passed after he planted his crop, which gave his lawsuit an additional argument about fairness. The Court treated that issue separately and rejected it.

A case argued twice

The case reached the Supreme Court in 1942. It was argued in May, and then, unusually, the Court ordered it reargued in October. Justice Robert Jackson, assigned to write the opinion, had doubts. His private papers, studied by later historians, show that he struggled with how to justify federal regulation of wheat that never entered commerce, and that he worried about whether any limit would remain on congressional power.

He ended up writing an opinion for a unanimous Court that put those doubts aside. Decided on November 9, 1942, Wickard v. Filburn upheld the penalty.

The aggregation principle

Jackson's opinion made two moves that have shaped constitutional law ever since.

The first was to stop asking whether an activity was "commerce" in some formal sense, such as buying and selling across state lines, or merely "production" or "local." Earlier cases had drawn those lines, and the New Deal Court abandoned them. The question instead was whether the activity, whatever its nature, exerted a substantial economic effect on interstate commerce.

The second move was aggregation. Filburn's own wheat, Jackson acknowledged, was trivial in the national market. But the Court explained that his contribution, taken together with that of the many others similarly situated, was far from trivial. If home-grown wheat, in the aggregate, could change the national supply and price, Congress could regulate it, including the amount grown by a single farmer for his own use.

Notice what the Court did not require. It did not ask the government to prove that Filburn's particular bushels had moved a price anywhere. It asked only whether Congress could rationally conclude that wheat like his, across the whole country, mattered to the market Congress was trying to stabilize. That deference to Congress's economic judgment was as important as the aggregation idea itself.

The logic is straightforward once stated. A national economic policy cannot work if each participant can opt out on the ground that his own share is too small to matter. Every individual's share is small. Together, they are the market.

How Wickard built the modern federal government

Wickard was the culmination of a shift that began in 1937, when the Court stopped striking down economic legislation. In NLRB v. Jones and Laughlin Steel that year, the Court upheld the National Labor Relations Act. In United States v. Darby in 1941, it upheld the Fair Labor Standards Act, which set a minimum wage and maximum hours for workers producing goods for interstate commerce. Wickard extended the reasoning to activity that was not commerce at all, so long as its aggregate effect on commerce was substantial.

The consequences were vast. For decades afterward, the commerce power supported federal laws governing workplaces, food and drug safety, the environment and much more. Federal environmental statutes, such as the Clean Air Act and the Clean Water Act, rely on a broad understanding of the commerce power. So do many federal labor and safety laws.

The most consequential use came in 1964. Title II of the Civil Rights Act prohibited discrimination in hotels, restaurants and other public accommodations. Congress could not easily use the Fourteenth Amendment, because a line of Court precedent held that amendment applied to state action, not private businesses. So Congress relied on the commerce power.

In Heart of Atlanta Motel v. United States, decided in December 1964, the Court upheld Title II as applied to a motel near Atlanta's interstate highways that refused to serve Black guests and drew most of its customers from out of state. In a companion case, Katzenbach v. McClung, the Court upheld the law as applied to Ollie's Barbecue, a family restaurant in Birmingham, Alabama, that served white customers inside and offered Black customers only takeout. The restaurant argued that its customers were local. The Court answered with Wickard's logic: the restaurant bought a substantial share of its meat from out of state, and racial discrimination in restaurants, taken in the aggregate, depressed interstate travel and commerce. Filburn's chickens had helped desegregate the lunch counters of the South.

The strongest case against Wickard

Critics of Wickard make an argument that deserves a fair hearing, because it is principled and because it has gained ground.

The Constitution gives Congress specific, enumerated powers. The Tenth Amendment confirms that powers not delegated to the federal government are reserved to the states or the people. If the commerce power reaches a farmer's wheat fed to his own chickens, critics ask, what does it not reach? Nearly every human activity, aggregated across the country, has some effect on the national economy. A clause meant to let Congress regulate trade among the states has become, on this view, a general police power the framers never granted.

Justice Clarence Thomas has written repeatedly that Wickard and the cases built on it are inconsistent with the Constitution's original meaning, and has suggested the Court should reconsider them. Many libertarian and conservative scholars agree.

The critique also has a democratic dimension. Federalism is meant to let states make different choices and to keep government close to the people. When Washington regulates everything, local experimentation and accountability suffer.

The answer, and the limits the Court later drew

The answer to that critique is partly practical and partly historical. The national economy of the twentieth century was integrated in a way the framers could not have imagined. A farm crisis in Kansas affected banks in New York and factories in Ohio. Labor conditions in one state affected competition in others. Racial discrimination in Southern restaurants affected the ability of Black Americans to travel across the country. Treating these as purely local matters would have left the national government unable to address national problems, and left states competing to lower wages, weaken safety rules and permit discrimination in order to attract business.

The Court has also shown that the commerce power has limits, even after Wickard. In United States v. Lopez in 1995, it struck down the Gun-Free School Zones Act, holding that carrying a gun near a school was not an economic activity substantially affecting interstate commerce. In United States v. Morrison in 2000, it struck down the civil remedy provision of the Violence Against Women Act on similar grounds. Both were 5-4 decisions, and both drew strong dissents arguing that the Court was returning to the discredited line-drawing of the pre-1937 era.

Then the Court reaffirmed Wickard. In Gonzales v. Raich in 2005, it held 6-3 that Congress could prohibit the cultivation and use of marijuana grown at home for personal medical use, even where state law allowed it. The majority relied directly on Wickard: home-grown marijuana, like home-grown wheat, could in the aggregate affect the national market that Congress was regulating. Justice Antonin Scalia, a frequent critic of expansive federal power, concurred in the judgment. Justice Thomas dissented, writing that if Congress could regulate this, it could regulate virtually anything.

The Raich result made strange political bedfellows. Progressives who usually defended Wickard found themselves sympathizing with patients denied medical marijuana, while conservatives who usually criticized it found themselves supporting federal drug enforcement. That tension is worth remembering: the scope of federal power is not a partisan issue in the abstract, only in its applications.

The health care fight

The most recent major test came in 2012. In National Federation of Independent Business v. Sebelius, challengers argued that the Affordable Care Act's individual mandate, which required most Americans to have health insurance or pay a penalty, exceeded the commerce power. The government relied in part on Wickard's logic: people who go without insurance, in the aggregate, shift costs onto the rest of the health care system and affect a national market.

Chief Justice John Roberts concluded that the commerce power did not support the mandate, because it compelled people to enter commerce rather than regulating existing activity. Filburn, by this reasoning, had at least chosen to grow wheat. But Roberts upheld the mandate as a valid exercise of Congress's taxing power, and the law survived. The commerce clause analysis signalled that a majority of the Court was willing to draw new lines.

Why this old case still matters

Here is my argument. Wickard is not just a historical curiosity about wheat. It is the constitutional foundation for much of what progressives want the federal government to do: protect workers, protect the environment, prohibit discrimination and regulate a national economy dominated by national corporations. A Court that narrowed it substantially could put many of those laws at risk.

Consider how ordinary these laws have become. The federal minimum wage, overtime rules and child labor protections of the Fair Labor Standards Act rest on the commerce power. So does much of federal workplace safety law, the regulation of food and medicine, and the protections against discrimination in hotels and restaurants that most Americans now take for granted. None of it feels like a constitutional question on an ordinary workday. All of it would become one if the reasoning in Wickard were seriously cut back.

That does not mean progressives should defend every possible extension of federal power without limits. Federalism has real value, and blue states have used it to protect their residents from federal policies they oppose. A consistent position recognizes that the national government needs power to address national problems, and that states need room to go further.

Roscoe Filburn lost his case. His name is now attached to an idea he did not set out to create: that in a national economy, we are all connected, and the choices of millions of people taken together are the proper business of the nation's elected government.

What you can do

1. Follow commerce clause cases as they arise. The Court Watch page lists this term's Supreme Court opinions with the Court's summaries, so you can see when the scope of federal power is at issue.
2. Read about the Court's rulings in context. The Supreme Court rulings coverage collects reporting on decisions and their effects.
3. Weigh in on federal rules. Many regulations that rely on the commerce power, from workplace safety to pollution limits, go through public comment. The public comment page lists federal rules open for comment now, closing soonest first, grouped by issue, with how to write a comment.
4. Tell Congress what laws you want it to pass. Enter your address on the representatives page to find your representative, senators and state legislators, their contact information and their latest votes.
5. Look at the workers these laws protect. The labor page shows the newest union elections counted by the National Labor Relations Board, who won, and union membership over time, a living legacy of the New Deal laws the commerce power upheld.