One Supreme Court case stands behind the Fair Labor Standards Act, the Controlled Substances Act, the Endangered Species Act and the Civil Rights Act. It’s been cited in rulings involving hot-button issues such as health care reform and medical marijuana. But chances are you’ve never heard of it.
Despite its wide-reaching influence, hardly anyone outside of legal circles is aware of the 1942 case, Wickard v. Filburn. One man, Gary Marbut of Missoula, Mont., hopes to change that. If Marbut succeeds, we’ll also hear about another Supreme Court case: the one that overturns Wickard.
On its surface, Wickard seems like an unlikely target for a fierce judicial battle. The case was not about criminal rights, free speech or racial equality; it was about wheat.
In 1941, Roscoe Filburn planted 23 acres of wheat, despite regulations at the time that limited farmers to 11.1 acres of the crop. The regulations, established under the Agricultural Adjustment Act, were intended to support crop prices during the Great Depression. Congress’s power under the Constitution’s Commerce Clause to “regulate Commerce with foreign Nations, and among the several States, and with the Indian tribes” justified the Act.
Filburn did not deny that he had grown more wheat than his allotment, but he claimed the regulations shouldn’t apply to him because his wheat was for consumption on his own farm. Since the wheat would never enter the commercial market and would cross no state lines, Filburn said, Congress had no power to regulate it.
The Supreme Court disagreed. The court explained that, while Filburn’s activities were not themselves commercial, in the aggregate, similar activities would have a substantial effect on interstate commerce, since they would allow farmers to avoid purchasing wheat, possibly wheat from other states. Therefore, the court said, such activities needed to be subject to regulation for Congress to fully exercise its power over interstate commerce. Justice Robert H. Jackson wrote for the court, “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.”
The ruling marked the end of the Supreme Court’s opposition to President Franklin Roosevelt’s New Deal and the wide range of new federal powers that came with it. At the height of the disagreement, Roosevelt attempted to pass a legislative initiative to add more justices to the court so he could appoint some judges more to his liking. The court-packing scheme failed, but with Wickard, the court finally embraced a view of the Constitution more in tune with the president’s.
For nearly 70 years, Wickard has served as the bedrock for a broad interpretation of the Commerce Clause, allowing the federal government to insert itself into a wide assortment of activities. While the Supreme Court has moved in a more conservative direction in recent years, placing both federal and state regulations under a higher degree of scrutiny, the basic principle behind Wickard has gone virtually unchallenged.
Enter Gary Marbut. Marbut is intentionally courting federal prosecution to force the Supreme Court to review and, he hopes, overturn Wickard. Rather than making his case with wheat, Marbut has chosen a somewhat less dry subject: guns.
Marbut began by convincing his home state of Montana to pass a law called the Firearms Freedom Act, stating that federal gun regulations do not apply to guns that are produced in the state and clearly stamped “Made in Montana” and “in-state.” Since no other states are directly involved, Marbut argued, the only way the federal government could challenge the law would be by relying on Wickard. Montana passed the law.
As soon as the law was on the books, Marbut announced plans to manufacture and sell a miniature rifle aimed at children between ages five and 10. Marbut made it clear that he would sell the gun only within Montana and had no plans to follow federal guidelines. The federal Bureau of Alcohol, Tobacco, Firearms and Explosives took the bait.
So far, Marbut has made it only as far as the district court, where, as expected, he lost. In the meantime, however, he has convinced seven additional states to pass versions of his Firearms Freedom Act. The spread of the laws will likely help him to get the notoriously picky Supreme Court to hear his appeal. Since only the Supreme Court has the power to overturn its own precedents, Marbut’s sole chance of success is to arrive before the nation’s highest court.
Overturning Wickard would be like taking the bottom block out of a Jenga tower. A lot of legal precedent would fall, and it would take a long time to sort out the mess. Exactly how the blocks would land would depend on what, exactly, the Supreme Court said about Wickard and what sort of interpretation of the Commerce Clause it offered as a replacement.
Most likely, conservatives would be generally happy about a reversal of Wickard, while most liberals would be unhappy. However, the complexity of the legal framework built on the foundations of Wickard would mean that each side would likely see some gains and some losses. Much federal regulation of businesses would likely fall, but so too would many federal laws dealing with marijuana and other drugs.
I can’t say whether, on the whole, a reversal of Wickard would be good or bad. But the increased attention Marbut has brought to the question of federal regulations is a good thing. According to a study by retired Louisiana State University law professor John Baker, there are now 4,500 crimes in federal statutes, and many of them are based in some way on the interpretation of the Commerce Clause established by Wickard. Those crimes often overlap state statutes, creating a confusing patchwork in which ordinary citizens can be easily ensnared.
Whether or not Marbut makes Wickard disappear, he is likely to succeed in getting more people to think about the precedent and what this country would be like without it. For a case that is so completely taken for granted that it is virtually invisible, that is already an achievement.