Monday, March 12, 2012

The Boundless Commerce Clause

Phil:    Let me ask you guys a question.
Gus:    Shoot.
Phil:    What if there were no tomorrow?
Gus:    No tomorrow?  That would mean there would be no consequences.  There would be no hangovers.  We could do whatever we wanted!
—Bill Murray as Phil Connors, and Rick Ducommun as Gus in Groundhog Day

Last Friday, I had the privilege of listening to Senator Mike Lee (R-UT) address a luncheon gathering of the Houston Lawyers’ branch of the Federalist Society (and, let me say, his book The Freedom Agenda is a must-read).  Senator Lee’s theme was that liberty is a right that we as citizens must assert for ourselves; no one else is going to do it for us.  And if we don’t start doing it soon, it’s going to be too late.

What did he mean by that?  Well, I’ll bet you didn’t know that that the federal government has already claimed for itself the power to prevent you from growing your own food on your own private property, and to fine you if you do it.

Rusty, that’s crazy.  You’re off in government-conspiracy la-la land again.

Oh, yeah?  Let me introduce you to Roscoe Filburn (pictured above).  Filburn owned and operated a small family farm in Ohio, where he raised livestock and grew wheat.  It was his practice to sell part of that wheat that he grew on his own private property via the sweat of his own brow, and to use the other part of that wheat to feed his family, feed his animals, and as seed for the next year’s crop.  Sounds like pretty ordinary activity for a farmer, and commendable self-reliance.  Indeed, it’s precisely what Americans have done for themselves literally since the day our forbears got off the boat (longer than that if your forbears, like some of mine, met the boat when it landed).

There was just one problem.

In 1938, the New Deal was in full swing, and as part of that, Congress enacted the Agricultural Adjustment Act, which was intended to raise agricultural prices by artificially restricting supply.  It did this by paying farmers subsidies for not growing certain crops.  It was later amended to go a step further by establishing maximum quotas for the production of wheat, and imposing fines for growers who exceeded those limits.  In other words, the government went beyond simply incentivizing farmers not to grow, and actually criminalized the use of private property to grow more of certain crops than the government allowed.

Let me repeat, especially for those of you who like to talk about the need to do something about hungry babies: in order to prop up grain prices, the United States federal government made it a crime to grow food.

Under the AAA, Filburn’s 1941 allotment for wheat allowed him to sow 11.1 acres at a normal yield of 20.1 bushels per acre.  He nevertheless chose to plant 23 acres, resulting in the production of 239 more bushels of wheat than the government said he was allowed to produce.  Although Filburn’s extra production was intended for his own consumption and never entered commerce at all—much less crossed state lines to become interstate—he was fined, and the extra production was effectively impounded to secure the government’s lien to ensure payment of that fine.  Filburn sued, claiming that the regulation went beyond Congress’ authority under the Commerce Clause.

What resulted was the United States Supreme Court’s 1942 opinion in Wickard v. Filburn, 317 U.S. 111.  Writing for an inexplicably unanimous Court, Justice Robert Jackson upheld the regulation, reasoning that Congress has, under the Commerce Clause, the power to enact legislation regulating even private activity, however small, if the effect of that activity when aggregated together with the other similar activity “affects” interstate commerce.  In Filburn’s instance, his decision to provide for himself by growing his own wheat on his own property meant that he would not be buying the wheat he needed from someone else; if enough people did that, there would be less demand in the open market, and prices would fall.  This potential “effect” on interstate commerce was, in the Wickard Court’s judgment, sufficient to permit Congress to regulate Filburn under the Commerce Clause.

It is this perversion of the Commerce Clause that has gotten us where we are now, and the Framers wouldn’t recognize it.  But consider the actual text of Article I, Section 8 itself.  It’s not long, it’s not complicated, and you don’t need a J.D. from Harvard to be able to understand it:

“The Congress shall have Power To . . . regulate Commerce with foreign Nations, and among the several states, and with the Indian Tribes[.]”

The Framers never intended this clause to be an all-empowering provision authorizing Congress to do anything it deems a good idea, or to regulate private activity on private property just because if enough people did it it might “affect” interstate commerce. 

What the Framers meant by the “Power To . . . regulate Commerce” was the power to bring about order and uniformity; in other words, to avoid balkanizing—the breaking up of a whole into smaller hostile units—of the fledgling national economy through individual States enacting protectionist tariffs against trade from other States.  Madison and Hamilton addressed this idea repeatedly in the Federalist Papers.  Hamilton wrote in No. 7: 

“Competitions of commerce would be another fruitful source of contention [between the States].  The States less favorably circumstanced would be desirous of escaping from the disadvantages of the local situation, and of sharing in the advantages of their more fortunate neighbors.  Each State, or separate confederacy, would pursue a system of commercial policy peculiar to itself.  This would occasion distinctions, preferences, and exclusions, which would beget discontent.”

See also Federalist Papers Nos. 11, 22, and 42 (Madison), all discussing the same idea.  There is no question that what the Framers were getting at was they didn’t want New York imposing an import duty on goods made in New Jersey.  That’s all the Commerce Clause was intended to do.  And for 150 years, everyone pretty well understood this.

But somewhere along the way we lost the critical understanding that our federal government was intended to be a limited one whose powers were “few and defined.”  This lack of understanding, coupled with officials in all three branches of government pushing a self-perpetuating statist agenda, and the question stopped being asked whether government had the power to do this or that, and it became “who is going to stop us?”  Wickard cast aside any real pretense of limitation on Congress’ authority under the Commerce Clause, and only twice since 1942 has the Supreme Court told Congress it couldn’t do something under the Commerce Clause.  After all, if Congress can tell a farmer in Ohio that he cannot grow his own food on his own property, there is little else it cannot reach.  This is going to come as a tremendous shock to those trying to live “off the grid” when one day some bureaucrat comes to levy a fine on them because they are not purchasing electricity from the government-subsidized wind farm.  But that idea flows directly from Wickard’s grossly overbroad “interpretation” of the Commerce Clause.  There simply aren’t any real limits on federal authority if you follow Wickard to its logical conclusion.

Wickard, of course, also provides the intellectual framework for Obamacare, and therein lay what may be the biggest challenge and biggest opportunity in the upcoming Supreme Court battle.  The government will argue that the Supreme Court’s Commerce Clause jurisprudence under Wickard and its progeny support Congress’ authority to enact Obamacare, and it will have a point.  To overturn Obamacare, the Court may have to overturn Wickard and its progeny, and therein lay the opportunity.  Query, however, whether this Court has the temerity to do it.

Which brings us back to Wickard itself and Senator Lee’s challenge that we must assert these rights ourselves.  Justice Jackson’s opinion made this very point in Wickard that the ultimate check on the broad federal commerce power lay not with the courts, but with the electorate:

“[E]ffective restraints on its exercise must proceed from political rather than from judicial processes.”

We cannot count on the third branch to protect us; they have become complicit in the statist’s game.  We must assert these rights ourselves, which means winning at the ballot box.

Here’s hoping we can continue in November what was begun in 2010.

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