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On Sat, 22 Feb 2025 13:32:56 -0500
-hh <recscuba_google@huntzinger.com> wrote:

> > It doesn't mention "wheat" either. Ask Roscoe Filburn how that
> > worked out. =20
>=20
>=20
> Precisely:  one can't assume that the commerce clause is definitive
> upon itself:  one needs to go look deeper into all of the regulatory=20
> guidance, prior Judicial determinations, etc.  It is what marks the=20
> current campaign as extrajudicial and severely wanting.

https://www.theamericanconservative.com/overturn-wickard-v-filburn/

Filburn was the owner and operator of a small farm in Ohio. Under the Agric=
ultural Adjustment Act of 1938, the federal government attempted to control=
 the price of wheat by allotting how many acres of wheat a farmer could gro=
w in that particular year. Filburn grew and threshed more wheat than was al=
lotted, and then refused to pay the federal penalty.=20

The intended purpose of this law was =E2=80=9Cto control the volume [of whe=
at] moving in interstate and foreign commerce in order to avoid surpluses a=
nd shortages and the consequent abnormally low or high wheat prices and obs=
tructions to commerce.=E2=80=9D That is a fine intention. But the federal g=
overnment has limited enumerated powers; Congress can only legislate under =
the powers expressly given to it by the Constitution, and the Tenth Amendme=
nt makes clear that any =E2=80=9Cpowers not delegated to the United States =
by the Constitution, nor prohibited by it to the States, are reserved to th=
e States respectively, or to the people.=E2=80=9D Therefore, any time Congr=
ess acts, even with the best of intentions, it needs to rely on a particula=
r power enumerated in the Constitution.

In Wickard v. Filburn, the power supposedly came from the Commerce Clause, =
which gives Congress the power to =E2=80=9Cregulate Commerce... among the s=
everal States.=E2=80=9D The plain language of the Commerce Clause requires =
that two circumstances be present for the federal government to wield this =
enumerated power: the situation must involve commerce, and that commerce mu=
st be =E2=80=9Camong the several States," meaning the commercial act must c=
ross state lines. As Randy Barnett explained in an excellent article, the o=
riginal meaning of the Commerce Clause is fairly straightforward:=20

Congress has power to specify rules to govern the manner by which people ma=
y exchange or trade goods from one state to another, to remove obstructions=
 to domestic trade erected by state; and to both regulate and restrict the =
flow of goods to and from other nations (and the Indian tribes) for the pur=
pose of promoting the domestic economy and foreign trade.

Consider for a moment what the Court did in Wickard v. Filburn. Filburn gre=
w grain in excess of what was allowed by federal law. The facts are not ent=
irely clear, but it seems that not only did he not sell the excess grain in=
 interstate commerce, but he didn=E2=80=99t sell the excess grain at all. F=
ilburn operated what was primarily a small dairy and poultry farm. Each yea=
r, he grew a small amount of wheat, of which he sold a portion, and kept th=
e rest for seed, home consumption, and animal feed. The Court astonishingly=
 ruled that

wheat grown for home consumption would have a substantial influence on pric=
e conditions on the wheat market, both because such wheat, with rising pric=
es, may flow into the market and check price increases and, because, though=
 never marketed, it supplies the need of the grower which would otherwise b=
e satisfied by his purchases in the open market.

This portion of the Court=E2=80=99s holding is the central problem. If a cr=
op is grown for home consumption, it might have an influence on the market =
price of that crop. If the farmer satisfies his own need for a crop that he=
 would otherwise purchase on the open market by growing it himself, that wi=
ll indirectly affect interstate commerce.=20

That might be true, but it does not change the glaring reality: The Commerc=
e Clause is a limited enumerated power that allows Congress to regulate com=
merce among the several states. The holding in Wickard v. Filburn extended =
that power to the growing of a crop for personal consumption, which is neit=
her commerce nor interstate activity.=20

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Wickard v. Filburn is an offensive activist decision, bending the Commerce =
Clause far beyond its plain meaning. That is cause enough to overrule it. B=
ut this holding extends beyond government overreach into the lives of small=
 wheat farmers. Antony Davies and James R. Harrigan realized the reach of t=
he precedent created by Wickard v. Filburn: =E2=80=9CSince Wickard, any tim=
e Congress has wanted to exercise power not authorized by the Constitution,=
 lawmakers have simply had to make an argument that links whatever they wan=
t to accomplish to interstate commerce.=E2=80=9D And if the facts of Wickar=
d are sufficient for Congress to invoke the Commerce Clause, the possibilit=
ies are endless.=20

If Congress does not need to show that an activity actually involves inters=
tate commerce=E2=80=94or even commerce at all=E2=80=94but only that the act=
ivity has =E2=80=9Ca substantial influence=E2=80=9D on interstate commerce,=
 Congress can regulate anything. If I chop down a tree on my property and b=
urn it in a wood stove, that activity, if performed by enough people, could=
 affect the price of energy in interstate commerce. If I raise enough chick=
ens that I don=E2=80=99t need to buy eggs and my neighbors follow suit, thi=
s could affect the price of eggs in interstate commerce. The Wickard Court =
goes into great detail about the unique importance of the American wheat ma=
rket at the time it wrote its opinion, but the opinion does not limit itsel=
f to a crisis in the wheat market.=20

This case set a horrible precedent, giving Congress power far beyond
what is enumerated in the Constitution. It allows the federal
government to interfere in the most local and basic aspects of our
lives. The Court should overrule Wickard v. Filburn. It should leave me
to grow my wheat, chop my trees, and raise my chickens without
congressional oversight. And it should tell Congress very clearly that
regulating commerce "among the several states" means exactly that:
Congress only has the constitutional authority to regulate the sale or
trade of goods that cross state lines. If we are not dealing with
actual interstate commercial transactions, overrule Wickard v. Filburn
and leave the federal government out of it.=20