July 4th and Wickard vs Filburn (never heard of them? YOU WILL, real soon at SCOTUS)

Next Stop for Obamacare's Mandate: The Supreme Court

The statement:

The Congress shall have Power To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes

The argument for the statement, by Alexander Hamilton Federalist #22:

The interfering and unneighborly regulations of some States, contrary to the true spirit of the Union, have, in different instances, given just cause of umbrage and complaint to others, and it is to be feared that examples of this nature, if not restrained by a national control, would be multiplied and extended till they became not less serious sources of animosity and discord than injurious impediments to the intercourse between the different parts of the Confederacy. “The commerce of the German empire[2] is in continual trammels from the multiplicity of the duties which the several princes and states exact upon the merchandises passing through their territories, by means of which the fine streams and navigable rivers with which Germany is so happily watered are rendered almost useless.” Though the genius of the people of this country might never permit this description to be strictly applicable to us, yet we may reasonably expect, from the gradual conflicts of State regulations, that the citizens of each would at length come to be considered and treated by the others in no better light than that of foreigners and aliens.

There really is NO ARGUMENT about what Hamilton is saying, and arguing Congress is to be doing. PREVENTING the states from harming individual commerce by citizens of the new nation. NOTHING MORE IS EVEN IMPLIED.

The distortion from Congress, made AFTER the butchers from Brooklyn destroyed the NRA’s price controls under the Commerce Clause:

The Agricultural Adjustment Act of 1938 (P.L. 75-430) was legislation in the United States that was enacted as an alternative and replacement for the farm subsidy policies, in previous New Deal farm legislation (Agricultural Adjustment Act of 1933), that had been found unconstitutional.The act was the first to make price support mandatory for corn, cotton, and wheat to help maintain a sufficient supply in low production periods along with marketing quotas to keep supply in line with market demand. It established permissive supports for butter, dates, figs, hops, turpentine, rosin, pecans, prunes, raisins, barley, rye, grain sorghum, wool, winter cover-crop seeds, mohair, peanuts, and tobacco for the 1938-40 period

The Challenge:

Roscoe Filburn was a farmer who admitted producing wheat in excess of the amount permitted. Filburn argued however that because the excess wheat was produced for his private consumption on his own farm, it never entered commerce at all, much less interstate commerce, and therefore was not a proper subject of federal regulation under the Commerce Clause.

The Federal District Court ruled in favor of Filburn. The Act required an affirmative vote of farmers by plebiscite in order to implement the quota. Much of the District Court decision related to the way in which the Secretary of Agriculture had campaigned for passage: The District Court had held that the Secretary’s comments were improper. The government then appealed to the Supreme Court of the United States, which called the District Court’s holding against the campaign methods which led to passage of the quota by farmers a “manifest error.” The court then went on to uphold the Act under the Interstate Commerce Clause.In July 1940, pursuant to the Agricultural Adjustment Act (AAA) of 1938, Filburn’s 1941 allotment was established at 11.1 acres (4.5 ha) and a normal yield of 20.1 bushels of wheat per acre. Filburn was given notice of the allotment in July 1940 before the Fall planting of his 1941 crop of wheat, and again in July 1941, before it was harvested. Despite these notices Filburn planted 23 acres (9.3 ha) and harvested 239 bushels from his 11.9 acres (4.8 ha) of excess area.^[1]

The intended rationale of the Agricultural Adjustment Act was to stabilize the price of wheat on the national market. The federal government has the power to regulate interstate commerce through the Commerce Clause of the Constitution. In Filburn the Court unanimously reasoned that the power to regulate the price at which commerce occurs was inherent in the power to regulate commerce.

Filburn argued that since the excess wheat he produced was intended solely for home consumption it could not be regulated through the interstate Commerce Clause. The Supreme Court rejected this argument, reasoning that if Filburn had not used home-grown wheat he would have had to buy wheat on the open market. This effect on interstate commerce, the Court reasoned, may not be substantial from the actions of Filburn alone but through the cumulative actions of thousands of other farmers just like Filburn its effect would certainly become substantial. Therefore Congress could regulate wholly intrastate, non-commercial activity if such activity, viewed in the aggregate, would have a substantial effect on interstate commerce, even if the individual effects are trivial.

Some of the parties’ argument had focused on prior decisions, especially dormant Commerce Clause decisions, in which the Court had tried to focus on whether a commercial activity was local or not local. Justice Robert H. Jackson’s decision rejects that approach as too formulaic:

The Government’s concern lest the Act be held to be a regulation of production or consumption rather than of marketing is attributable to a few dicta and decisions of this Court which might be understood to lay it down that activities such as ‘production,’ ‘manufacturing,’ and ‘mining’ are strictly ‘local’ and, except in special circumstances which are not present here, cannot be regulated under the commerce power because their effects upon interstate commerce are, as matter of law, only ‘indirect.’ Even today, when this power has been held to have great latitude, there is no decision of this Court that such activities may be regulated where no part of the product is intended for interstate commerce or intermingled with the subjects thereof. We believe that a review of the course of decision under the Commerce Clause will make plain, however, that questions of the power of Congress are not to be decided by reference to any formula which would give controlling force to nomenclature such as ‘production’ and ‘indirect’ and foreclose consideration of the actual effects of the activity in question upon interstate commerce.

The issue was not how one characterized the activity as local, but rather whether the activity “exerts a substantial economic effect on interstate commerce”:

Whether the subject of the regulation in question was ‘production,’ ‘consumption,’ or ‘marketing’ is, therefore, not material for purposes of deciding the question of federal power before us. That an activity is of local character may help in a doubtful case to determine whether Congress intended to reach it…. But 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.’

Here, the regulation of local production of wheat was rationally related to Congress’s goal: to stabilize prices by limiting the total supply of wheat produced and consumed. It was clear, the Court held,

“that a factor of such volume and variability as home-consumed wheat would have a substantial influence on price and market conditions. ….. Home-grown wheat 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. This record leaves us in no doubt that Congress may properly have considered that wheat consumed on the farm 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.

Wickard arguably marked the end to any limits on Congress’s Commerce Clause powers. The Court’s own decision, however, emphasizes the role of the democratic electoral process in confining the abuse of the Congressional power, stating that, “At the beginning Chief Justice Marshall described the Federal commerce power with a breadth never yet exceeded. He made emphatic the embracing and penetrating nature of this power by warning that effective restraints on its exercise must proceed from political rather than from judicial processes.”

______________________________________________________________

Get it?

Robert Jackson (also the US prosecutor at the Nuremberg Trials, AND A RELUCTANT agree-er to Japanese relocation camps as ATTY GENL) argues, ‘what do you want from us? The commerce clause is a tough one, and that’s how we, who were appointed and approved by those you elected are going to go’

John Marshall who could arguably be counted among the constitutionalism idea founders argues that if the FEDERAL POWER becomes onerous, DON’T DEPEND ON SCOTUS TO BE THE VIGILANT PARTNER …. political (electoral or OTHER) power must be used.

………………………………………………………………………………………………..

Don’t LOOK FOR REMEDY FROM SCOTUS. So says John Marshall - AS A PRINCIPLE.

SCOTUS WAS RESPONSIBLE FOR PLESSY VS FERGUSON.

They are not paragons of eternal virtue, and justice. The message of the founders, and arguably the greatest (easily the most powerful and over time, influential) supreme court justice is THEY ARE NO MORE THAN US.

The people must be vigilant. There is no escape. There is no excuse. There is no other way.

Vote, work for those who believe in limited govt and, canvass to explain to neighbor’s what’s at stake, and it’s far more than a vote for fear of losing health insurance.

It is going to take a lot of hard work to undo the FRAMEWORKS these POS’s have tried to place to FUNDAMENTALLY CHANGE THE NATURE OF THE USA

PS... Wickard vs Fillburn is the answer Sarah Palin SHOULD HAVE HAD for Ms Couric's trap question.

HAPPY JULY 4TH!