A Farmer's Wheat Crop and the Long Fight Over the Commerce Clause

A farmer's wheat bin is not an interstate highway, and yet the Supreme Court once found it inside the commerce clause. The man grows wheat on his own land. He does not sell it. He grinds some for flour, feeds some to his chickens and cows, and keeps some for seed. None of it touches a truck, a train or a state line. Can Washington regulate that wheat under a clause of the Constitution that gives Congress power over trade "among the several States"? Any normal person says no. The Supreme Court said yes, unanimously, in 1942, and a great deal of modern government stands on the answer.

I want to walk you through that case and the eight others that frame it, in order, with dates. Think of it as a timeline of how a modest sentence in Article I became the master key to the federal government, and of the few times the Court tried to take the key back. If you farm, run a small business, or just wonder why Washington seems to have a say over everything, this is the story of how that happened.

The text itself is short. Article I, Section 8, Clause 3 gives Congress the power "to regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes." That is the whole grant. The founders had a practical reason for it: under the Articles of Confederation, states taxed each other's goods and picked tariff fights with their neighbours, and the young country was strangling itself. The clause was meant to make the nation one market. The argument for the next two centuries has been about one question: where does "commerce among the states" end and the states' own business begin?

1824: Gibbons v. Ogden sets the frame

New York had granted a private company a monopoly on steamboat travel in its waters. Thomas Gibbons ran boats between New York and New Jersey under a federal coasting license, Aaron Ogden held the monopoly rights, and the two ended up in court. Chief Justice John Marshall wrote for the Court that "commerce" meant more than buying and selling. It included navigation, the movement of people and goods. He also held that Congress's power over commerce among the states is complete in itself, and that a state law that collides with a valid federal law must give way.

Notice what the case gave us and what it did not. It gave Congress a broad authority over trade that crosses state lines. Marshall also said that the internal commerce of a state, the kind that is completely inside it, is left to the state. That distinction between commerce that crosses lines and commerce that stays home would carry the law for a hundred years. Keep it in mind, because the rest of this timeline is the story of that line moving.

1935: Schechter, the sick chicken case

Fast-forward through the railroads, the Sherman Act and the Gilded Age to the Great Depression. In 1933 Congress passed the National Industrial Recovery Act, which let industry groups write "codes of fair competition" with the president's approval. One code covered the poultry trade in New York City. The Schechter brothers ran a kosher slaughterhouse in Brooklyn, bought chickens that had come from out of state, sold them only to local butchers, and were convicted of violating the code on wages, hours and some sales practices.

On May 27, 1935, the Supreme Court threw out the law, and it did so unanimously, nine to nothing. Two holdings mattered. First, Congress had handed too much of its lawmaking power to the president and to private industry groups, a point I cover in a separate post on delegation (see Congress Should Write the Laws, and Other Radical Ideas From Article I). Second, the Court said the Schechters' business was local. The chickens had come to rest in New York, the sales were within New York, and the effect on interstate commerce was "indirect." The Court drew a line between direct and indirect effects and put the Brooklyn slaughterhouse on the state side of it.

That was the high-water mark of the old limit. It did not last the decade.

1937: Jones and Laughlin, and the line begins to bend

By 1937 President Franklin Roosevelt was furious with the Court and had proposed to add justices to it. I told that story in FDR Tried to Pack the Supreme Court in 1937 and His Own Party Said No. In the middle of that fight, the Court decided NLRB v. Jones and Laughlin Steel Corporation by a vote of five to four, with Chief Justice Charles Evans Hughes writing for the majority.

The steel company was a giant, with mines, mills and shipping operations spread over several states. The question was whether the National Labor Relations Act, the Wagner Act, could reach its labor relations. The Court said yes. A strike at a mill like that could choke the flow of steel across state lines, so Congress could regulate the labor relations behind it. The old test of "direct versus indirect" gave way to a new one: does the activity have a close and substantial relation to interstate commerce?

Pay attention to the facts of that case. The company really was an interstate operation. The Court was not yet saying that any activity at all could be reached. It was saying that Congress could reach activities that, taken together with the whole enterprise, shaped the national market. That was a real expansion, but it was an expansion with a story attached. The next step cut the story loose.

1942: Wickard v. Filburn, the wheat

Now the star of the show. In the late 1930s Washington was trying to prop up farm prices, and under the Agricultural Adjustment Act of 1938 the Department of Agriculture set acreage allotments for wheat. Roscoe Filburn, who ran a small farm in Ohio, planted more wheat than his allotment allowed. He said the extra was for his own use: feed for the poultry and livestock, flour for the household, seed for next year. The government assessed a penalty on the excess anyway.

Justice Robert Jackson wrote the unanimous opinion in 1942, and the logic was the aggregate effect. One farmer's wheat, taken alone, hardly matters. But if many farmers grow their own, the argument ran, they do not buy wheat on the market, and that affects the price of wheat in interstate trade. So, the Court said, Congress could reach even activity that is local and not itself commerce if, in the aggregate, it exerts a substantial economic effect on interstate commerce.

Here is the thing about that reasoning, and I say this with a straight face and some respect for the opposing side. It is not stupid. A government trying to hold up the price of wheat does have a real problem if every grower can opt out by consuming his own crop. The steelman is that a price-support program cannot work if the product that never reaches the market is exempt. But look at what the argument proves. If not buying something affects the market for it, then nearly everything a person does or declines to do "affects" some market. The farmer in Ohio did not cross a state line. He did not sell. The Constitution says "regulate Commerce," and the Court turned that into a power over anything that touches a market. The limit that Marshall described in 1824, the commerce that stays home, nearly disappeared.

1964: McClung and the Civil Rights Act

The next entry is the one that makes honest conservatives wince, because the expansion was used for something that most of us now regard as plainly right. In the Civil Rights Act of 1964, Title II barred racial discrimination in hotels, restaurants and other public accommodations. Congress needed a constitutional hook. It used the Commerce Clause, and in December 1964 the Court upheld the law in two cases decided on the same day, Heart of Atlanta Motel v. United States and Katzenbach v. McClung. Both were unanimous.

Ollie's Barbecue in Birmingham, Alabama, was a family restaurant that served Black customers only at a take-out window. Ollie's was a local place, but it bought a large share of its food from out of state, and the Court found that discrimination in restaurants like it reduced the interstate flow of food and travel. Whatever you think of the constitutional hook, the moral case for the law was overwhelming, and Republicans did their part: you can read how they broke the filibuster in Republicans Delivered the Votes That Broke the 1964 Filibuster.

Still, a conservative owes the reader a clear view of the cost. The same logic that reached Ollie's reached everything else. Congress could now regulate almost any local business that served customers, bought supplies or employed anyone. A civil rights law and a wheat quota had the same constitutional parent. For the next thirty years, it seemed no federal law would ever be struck down for exceeding the commerce power.

1995: Lopez, a gun and a school zone

That changed in 1995. In the Gun-Free School Zones Act of 1990, Congress made it a federal crime to knowingly possess a firearm in a school zone. Alfonso Lopez Jr., a high school senior in San Antonio, Texas, was charged after he brought a gun to school. He argued that Congress had no power to pass the law.

On April 26, 1995, in United States v. Lopez, the Court agreed, five to four, with Chief Justice William Rehnquist writing. It was the first time in decades that the Court had struck down a federal law for exceeding the commerce power. The opinion sorted commerce into three buckets: the channels of interstate commerce, the instrumentalities and persons and things in interstate commerce, and activities that substantially affect interstate commerce. The gun law fit none. Possessing a gun in a school zone is not an economic activity, and the government's chain of reasoning, from guns to violence to a weaker education to a weaker economy, had no stopping point. The Court said, in effect, that if that chain worked, Congress could regulate anything, and the clause would have no limit.

Notice that Lopez did not overrule Wickard. It left the wheat case on the books and said the difference was that wheat quotas regulate an economic activity and a gun law does not. That is a thin line, and critics on both sides have said so. But it was a line.

2000: Morrison and the same idea again

Five years later the Court did it again. In the Violence Against Women Act of 1994, Congress gave victims of gender-motivated violence a federal civil remedy. In United States v. Morrison, decided May 15, 2000, the Court held five to four, again with Rehnquist writing, that Congress lacked the commerce power to create that remedy. The crime in question was violent and not economic, and the Court refused to accept an argument built on the aggregate costs of violence. It also reminded everyone that the Constitution leaves the general police power, the power to punish ordinary crime, with the states.

Morrison matters because it was not a one-off. Lopez and Morrison together mean the Court has been willing, since the mid-1990s, to say that noneconomic, local conduct is for the states unless Congress has a stronger link. That is a federalism principle, and it is what conservatives have meant for decades when they talk about a limited central government with enumerated powers. It also fits with the doctrine in The Tenth Amendment Rule That Protects Red States Also Protects Sanctuary Cities, which cuts in all directions.

2005: Raich and the limits of the limit

Then came the case that took some of the wind out of the revival. California had a law allowing patients to grow and use marijuana at home under state law. Federal agents seized the plants of a woman who grew them for her own use, and she sued, arguing that the Controlled Substances Act could not reach homegrown marijuana that never crossed a state line.

In Gonzales v. Raich, decided June 6, 2005, the Court ruled six to three that the federal law could be applied. Justice John Paul Stevens wrote for the Court that, like the wheat in Wickard, the homegrown crop was part of a larger economic class of activity, the market for the drug, and that Congress could rationally decide it could not regulate the market while leaving out the home-grown portion. Justice Antonin Scalia, who generally favoured limits, agreed with the result on a different basis: the Necessary and Proper Clause lets Congress reach local activity when it is needed for a broader regulatory scheme. Justice Clarence Thomas dissented, and so did Chief Justice Rehnquist and Justice Sandra Day O'Connor.

This is a legal point, not a policy argument about the drug. The lesson for anyone who wanted Lopez to be a revolution is that the Court was not about to walk away from Wickard. The aggregate-effects idea survives when the activity is economic in nature and part of a larger regulatory scheme.

2012: NFIB v. Sebelius and the edge of the cliff

The last entry is the one conservatives like best, and the Court's own history explains why. The Affordable Care Act of 2010 required most Americans to buy health insurance or pay a penalty. The government defended the mandate under the Commerce Clause. In National Federation of Independent Business v. Sebelius, decided June 28, 2012, Chief Justice John Roberts wrote that the Commerce Clause does not let Congress compel people to buy a product. The power to "regulate" commerce presupposes that commerce already exists. It does not include the power to create it by ordering inactive people into a market.

Five justices agreed with that part of the opinion. The mandate survived, by a different five-vote majority, as a tax, which is the subject of NFIB v. Sebelius Lost the Mandate Fight but Won a Limit on Federal Strings. But for the first time the Court had set a limit that no amount of aggregation could get around: Washington can regulate activity, but it cannot conscript a person into commerce. Notice the contrast with Wickard. Filburn's decision not to buy wheat in the market was held to be reachable. The Roberts opinion said that not buying insurance was not. The two cases can be squared, but only barely, and a student who reads them side by side will find the seam.

What the timeline teaches

Lay the nine entries out in a row and a pattern appears.

1. The text did not change. From 1824 to 2012, the clause reads the same. What changed was the Court's view of which activity "affects" interstate commerce.
2. The great expansion came from a crisis. Schechter in 1935 and Wickard in 1942 sit on either side of the New Deal and the Second World War. The Court gave way when the political branches pushed hard.
3. The limits are real but narrow. Lopez, Morrison and NFIB each protected something: noneconomic local crime and the inactive individual. None of them ended the aggregate-effects idea.
4. Politics is not the same as law. The Court that upheld the Civil Rights Act and the Court that struck down the gun-free-zone law were applying the same family of ideas. Anyone who tells you the cases line up with a party is selling something.

The strongest objection to the conservative critique goes like this. The national economy is not the national economy of 1789. A farmer's wheat, a backyard crop and a restaurant's supply chain really are tied to national markets, and a Congress that could not reach them would be helpless. That is a fair point, and it is the best argument for Wickard. The answer is not that Congress should be helpless. The answer is that the Constitution assigns most day-to-day government to the states and that when a power is claimed that has no stopping point, the voters and the courts should ask for one. Congress has other tools: the taxing power, the spending power and treaties. If a policy is wise, it can usually find a constitutional route without stretching one clause to cover everything.

The bottom line

• Know the clause. Article I, Section 8, Clause 3 is the source of most of the federal rules you live under. Read it, and ask of any federal rule, "Is this regulating commerce or something else?"
• Remember Filburn. If you farm, the next time someone says a federal program does not reach you because your crop stays on your land, the answer is Wickard v. Filburn. Check the program rules before you plant.
• Hold Congress to a stopping point. When a bill's backers say a problem is national because it has some effect on the economy, ask what would not be national under that logic. If the answer is nothing, the argument proves too much.
• Support the states' role. Lopez and Morrison are about leaving ordinary crime and local matters to states. Your state legislature is the place to push for the rules you want.
• Read the cases yourself. The opinions are free at supremecourt.gov. Start with Lopez, which is short and readable, and compare it with Wickard.