A few weeks ago, I blogged about oral argument in the DC Circuit Court of Appeals in the Seven-Sky v. Holder case. In my post I expressed some concern about a colloquy between Judge Silberman and Ed White, counsel for the American Center for Law & Justice, about the scope of Congressional power upheld in Wickard v. Filburn. In particular, Judge Silberman asked counsel for both sides to comment on what he presented as the “logic” of Wickard. Here is the exchange with passages of particular interest highlighted in bold and italics I have added:
MR. WHITE: Because I think as the Middle District of Pennsylvania noted just last week, the judge was bound by Stare Decisis, is it’s not just the outer reaches where you’re looking at Wickard and Raich, which are basically the same case even though it’s a different substance, but you look at Lopez and Morrison –
JUDGE SILBERMAN: That’s not true. They’re not really the same case. I think Wickard goes, forgive me for stopping you, but I think Wickard goes further. Wickard, if you read it carefully, applied in the following situation. You have a small farmer who wishes to grow wheat for the purpose of baking bread for his own family and only for his own family and nevertheless, he can be barred from doing so. Now, in a sense, that is a greater exercise of Governmental power than this case because as Justice Jackson pointed out, the purpose of the statute was to force that farmer to buy wheat in the interstate market. He couldn’t grow it himself, even to feed his own family.
MR. WHITE: I will address that after I address this first point, okay? Where when you look at Lopez, when I say hey’re basically the same case, I think the Supreme Court in Raich said they’re very similar, similar circumstances, okay, and I understand there are nuances to everything, is that when you look at Lopez and Morrison, the Court said, you know, the line is drawn between economic and non-economic activity. Here, we have really the absence of commerce activity. And said you also have to consider the limits of federalism because that’s very hard because we, we are a country with a free market economy. We’re not, you know the Soviet Union with a centralized, controlled command economy where the Federal Government tells us everything, what to do. And especially when we go back to when you talk about Massachusetts, the states, and that’s where people (indiscernible) liberty to, the states are supposed to be laboratories of experimentation and if the situation in Massachusetts really seems to work over the course of time, other states can adopt that and can move on. Now, going to Wickard, Wickard is more of a limitation. When we talked about Congress says, you were talking earlier about Congress can regulate and prohibit as they did, Wickard is a limitation in the sense that Filburn was still able to grow a percentage of his acreage of wheat.
JUDGE SILBERMAN: That’s only because there was an exemption for small farmers. But the logic of Jackson’s opinion, it seems to me, made it quite clear he could have been barred from growing any wheat whatsoever.
MR. WHITE: Well, if –
JUDGE SILBERMAN: And even to feed his own family.
MR. WHITE: Well –
JUDGE SILBERMAN: >Force him to buy in the interstate, in the open market.
MR. WHITE: Well, I do not think –
JUDGE SILBERMAN: Which is sort of a mandate, isn’t it?
MR. WHITE: Well, not really. If anything, it’s a limitation or a prohibition. If Congress said we’re, in effect, going to outlaw wheat growing –
JUDGE SILBERMAN: Sort of reminds me of let them eat cake.
MR. WHITE: And unfortunately, that might be where we’re going if this, you know, if Congress has this unlimited power. They are letting eat cake.
In my experience, the seminal New Deal opinions, broad as they were, were not nearly as broad as constitutional law professors later made them out to be. Because of the gloss on these decisions that has been applied over the decades, one needs to examine what they actually said. To evaluate the interpretation of Wickard articulated by Judge Silberman, it is useful to read the relevant portion of Justice Jackson’s opinion ( 317 U.S. at 127-29) in its entirety to preserve context, once again with the most relevant passages indicated in bold, and with some comments in brackets:
The effect of consumption of home-grown wheat on interstate commerce is due to the fact that it [i.e. the consumption of home-grown wheat] constitutes the most variable factor in the disappearance of the wheat crop. Consumption on the farm where grown appears to vary in an amount greater than 20 percent of average production. The total amount of wheat consumed as food varies but relatively little, and use as seed is relatively constant. [ME: When Justice Jackson is discussing "home-grown wheat" and "consumption on the farm where grown" which he characterizes as "the most variable factor," he distinguished this from "wheat consumed as food," which he said "varies but relatively little." So Justice Jackson's references to "home-grown wheat" and "consumption on the farm where grown" do not include either "wheat consumed as food" or wheat "use[d] as feed seed.” So, contrary to the way it is often taught, Wickard does not equate “home consumed wheat” or wheat “consumption on the farm where grown” with with wheat consumed “as food” on the farm. This is simply a misreading of the terminology of Jackson’s opinion.]
The maintenance by government regulation of a price for wheat undoubtedly can be accomplished as effectively by sustaining or increasing the demand as by limiting the supply. The effect of the statute before us is to restrict the amount which may be produced for market and the extent, as well, to which one may forestall resort to the market by producing to meet his own needs. [ME: Given the previous paragraph these "needs" are a reference to using wheat on the farm to feed livestock, rather than buying wheat from other farmers. It is not a reference to wheat consumed as food.] That appellee’s own contribution to the demand for wheat may be trivial by itself is not enough to remove him from the scope of federal regulation where, as here, his contribution, taken together with that of many others similarly situated, is far from trivial. Labor Board v. Fairblatt, 306 U. S. 601, 306 U. S. 606 et seq.; United States v. Darby supra at 312 U. S. 123.
It is well established by decisions of this Court that the power to regulate commerce includes the power to regulate the prices at which commodities in that commerce are dealt in and practices affecting such prices. [Footnote 28] One of the primary purposes of the Act in question was to increase the market price of wheat, and, to that end, to limit the volume thereof that could affect the market. It can hardly be denied that a factor of such volume and variability as home-consumed wheat [ME: i.e. not "wheat consumed as food," the volume of which "varies but relatively little" (see above)] would have a substantial influence on price and market conditions. This may arise because being in marketable condition such wheat overhangs the market, and, if induced by rising prices, tends to flow into the market and check price increases. But if we assume that it is never marketed, it supplies a need of the man who grew it which would otherwise be reflected by purchases in the open market. [ME: Again, purchases in the market for livestock feed, not bread for the family table.] Home-grown wheat [ME: i.e. wheat grown on the farm to feed to livestock] in this sense competes with wheat in commerce. The stimulation of commerce is a use of the regulatory function quite as definitely as prohibitions or restrictions thereon. [ME: "stimulation" does not here refer to a mandate; but the incentive created from the prohibition.] This record leaves us in no doubt that Congress may properly have considered that wheat consumed on the farm [ME: this is economic activity] where grown, if wholly outside the scheme of regulation, would have a substantial effect in defeating and obstructing its purpose to stimulate trade therein at increased prices.
It is said, however, that this Act, forcing some farmers into the market to buy what they could provide for themselves, is an unfair promotion of the markets and prices of specializing wheat growers. It is of the essence of regulation that it lays a restraining hand on the self-interest of the regulated, and that advantages from the regulation commonly fall to others. The conflicts of economic interest between the regulated and those who advantage by it are wisely left under our system to resolution by the Congress under its more flexible and responsible legislative process. [Footnote 29] Such conflicts rarely lend themselves to judicial determination. And with the wisdom, workability, or fairness, of the plan of regulation, we have nothing to do.
The first thing to note is that it is entirely proper to construe the holding of Wickard in light of the relevant facts of the case, in particular the nature of the statute that was under consideration. The facts are these: (1) the Court never addressed the power of Congress to regulate the activity of growing wheat to feed one’s family; what it might or might not have said about this claim of power is a matter of speculation–remember that the Court was so bothered by restricting this intrastate activity of farmers that held the case over another term for reargument. (2) the Agricultural Adjustment Act (AAA) did not apply even to all commercial farms, much less all individuals in the United States; it applied to farms over a certain acreage. (3) perhaps most importantly, the AAA did not involve a federal mandate that those farmers to which it did apply, much less all individuals in the United States, purchase wheat or wheat products from the interstate market; instead, it prohibited the covered farmers from growing more than a set quota of wheat. (4) Under the AAA upheld by the Court, farmers were only indirectly “forced” to enter the market for interstate wheat by the exercise of Congress to prohibit them from growing more than a certain amount of wheat, not from directly mandating they do so; and remember, when Justice Jackson uses the word “forcing,” he is paraphrasing an objection to the scheme.
So the proposition that Wickard extends beyond these facts depends entirely on how one defines its “logic.” But I do not believe that the logic of Justice Jackson’s opinion is accurately reflected in Judge Silberman’s summary.
The logic of Wickard is that people’s economic activity — such as the activity of wheat farmers — may be “restrict[ed]” even if such a restriction has the effect of “forcing” them into the interstate market over which Congress has control. The Court in Wickard scarcely could imagine, much less endorse, a direct command by Congress to farmers that they must buy interstate wheat. The power to “stimulate” commerce by resorting to regulations, prohibitions, as well as taxation and subsidies that are within the power of Congress to impose is simply not the same as the power to mandate commerce.
In short, there are many things that Congress can try to accomplish indirectly with its enumerated powers even though it has no enumerated power to do them directly. So rather than mandate that all home owners in flood plains buy flood insurance, Congress can deny home owner’s federally guaranteed mortgages unless they obtain flood insurance. Instead of mandating people buy American cars, it can pay “cash for clunkers.” Conversely, just because Congress can “force” farmers into the interstate wheat market by using its power to cap their production of wheat, does not entail that Congress also has the power to command or mandate that farmers buy interstate wheat, and imprison any farmer who disobeys.
Remember, as Judge Kavanaugh observed in oral argument, unlike tax subsidies or other incentives, once the power to mandate economic activity is recognized under the Commerce Clause, there is absolutely nothing preventing Congress from criminalizing failures to engage in the mandated activity. The price of forgoing a subsidy, or even giving up a regulated activity altogether to avoid a regulatory scheme–for example, by selling one’s farm or quitting the practice of medicine–is entirely different than the consequences of refusing to obey a government mandate to engage in activity, which can be punishable by fine or imprisonment. The fact that the sanction for violating this mandate is limited to a fine, is beside the point, since the “logic” of finding it to be a Commerce Clause regulation will allow Congress to impose any of its usual regulatory punishments for failing to comply with Commerce Clause regulations or prohibitions.
Furthermore, unlike the power to prohibit, the power to mandate commerce is not incidental to the power to regulate commerce but is an awesome, dangerous, and independent power in its own right that the Constitution did not delegate to the Congress. If such a power to mandate economic activity exists, it would need to be authorized by the Constitution, as it may well be authorized by a state constitution to the extent that it, unlike the U.S. Constitution, grants a broader police power to its legislature. Of course, the police power of states is subject to other federal constitutional constraints (e.g. the 14th Amendment). In addition, state police powers are subject to an important structural constraint: companies and individuals can flee a state for another with less objectionable laws. By contrast. the federal government is subject both to Bill of Rights constraints and the textual constraint imposed by the list of limited enumerated powers. But that structural textual constraint only operates if federal judges hold the line on these textually-defined powers.
There is probably more to say — pro and con — on Wickard than I have said here, but this post has already grown far longer than I intended. So let me conclude with the following observation. If the logic of Wickard is read as broadly as the questions posed by Judge Silberman, then the command of another canonical Supreme Court decision would have to be discarded:
The powers of the Legislature are defined and limited; and that those limits may not be mistaken or forgotten, the Constitution is written. To what purpose are powers limited, and to what purpose is that limitation committed to writing, if these limits may at any time be passed by those intended to be restrained? The distinction between a government with limited and unlimited powers is abolished if those limits do not confine the persons on whom they are imposed, and if acts prohibited and acts allowed are of equal obligation.
Wickard need not, and ought not, be interpreted as transgressing against Marbury v. Madison.
UPDATE: I had an additional thought: It is quite clear after Raich that Congress now does have the power to prevent a person from growing wheat to feed his own family. Whereas we claimed that growing something in your own backyard was noneconomic activity, the majority in Raich reached its result by characterizing the manufacture or consumption of a commodity as an “economic activity.” This is the sense in which Raich is conventionally and correctly interpreted as a step beyond Wickard. If Angel obeys that prohibition, she could then be “forced” into the illicit marketplace for her marijuana. But this does not entail that Angel Raich or Dianne Monson can be compelled to grow marijuana, or that Roscoe Filburn can be compelled to grow wheat. Nor does it entail that any of them can be directly compelled to buy marijuana or wheat in the marketplace. I did not want to leave the impression that, because Wickard may be limited to the restriction of commercial farming, which in the aggregate has a substantial affect on interstate commerce, that this limit was not expanded by Raich, now allowing Congress to reach just this activity.
Moreover, even if the “logic” of Wickard or Raich, extending beyond their facts, might be used to justify a mandate of economic activity, there are other cases with their own logic that cut the other way. For example, Lopez and Morison’s logic that Congress lacks a general police power, that its powers are limited and enumerated, and these limits justifies some judicial enforcement. Or the logic of Printz that even a necessary mandate on state governments is an improper means of regulating commerce, in that case because it commandeers the legislatures of the states in violation of the principles underlying the Tenth Amendment. The Tenth Amendment, after all, protects the reserved powers of the people equally with the powers of the states. Or the Bond case from last term that affirms that the scheme of federalism based on enumerated powers was intended to protect individual liberty (and for this reason can be asserted by individuals objecting to a federal statute). The logic of all these cases bear on the ACA case, not just Wickard, even if Wickard‘s logic is broader than its holding.
[Some typos and glitches corrected.]