Chickens, Wheat, And The Commerce Clause

A chicken counter, a wheat field, and a school-zone arrest shouldn’t define the reach of federal power—but they do. We unpack how a few pivotal cases turned the Commerce Clause from a narrow trade rule into the engine of modern regulation, and where the Court has since tried to tap the brakes without stalling the system.

We start with Schechter Poultry’s unanimous stand against federal micromanagement of a local butcher, then pivot to Wickard v. Filburn, where the justices embraced the aggregation principle: if lots of people act locally, the nationwide market moves, and Congress can act. That shift greenlit much of the New Deal order and still underwrites environmental rules, labor standards, and agriculture policy. We track the federalism pushback that followed, culminating in United States v. Lopez, which declared that guns near schools are a safety concern, not economic activity, and thus beyond the commerce power. From there, we navigate Gonzales v. Raich, where the Court treated homegrown marijuana as part of a broader market Congress aimed to suppress, showing that goods and markets remain squarely within reach even when activity looks local.

We close with NFIB v. Sebelius and the Affordable Care Act’s individual mandate: Congress cannot force people into commerce to regulate them under the Commerce Clause, but a tax can achieve similar aims. Along the way, we highlight the competing logics—macroeconomic effects versus state police powers—and the practical politics that shape how Congress drafts laws to survive review. If you’ve ever wondered why federal rules can touch your farm, your storefront, or your clinic, this story explains the path from text to doctrine to daily life.

Subscribe for more sharp constitutional deep dives, share this episode with someone who loves a good legal plot twist, and tell us: where should the line between commerce and control be drawn?

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Chapters

• 0:00 Setting The Stage: Commerce Power
• 3:36 Schechter Poultry: Local Chickens, Federal Limits
• 7:16 Wickard v. Filburn: Aggregate Effects Logic
• 12:31 Goldwater To Rehnquist: Federalism Pushback
• 16:26 U.S. v. Lopez: Guns, Schools, And Limits
• 19:56 Raich: Markets Versus Morals

Transcript

SPEAKER_00: 1:33

Welcome back to Civics in a year. Today we're talking about the Commerce Clause. And there are actually lots of cases we'll be talking about today. We have Dr. Beinberg back with us. Dr. Beinberg, we're going to start with chickens and wheat with the Commerce Clause. So, what do chickens and wheat have to do with anything in the Constitution?

SPEAKER_01: 1:55

Right. So just a little worth reviewing since it's been, I think, many episodes since we did some of the earlier commerce cases and Federalist 45 and 39, et cetera. So under the one of the major switches of the US Constitution from the Articles of Confederation is again, federal government has its own enforcement powers, but it has a few additional enumerated powers. And one of them is the power to regulate commerce among the states, which if you were to sort of apply how the word among is meaning has shifted, is commerce between the states, would be sort of how we would write that today. And so there's cases in the 18, you know, Gibbons and McCullochby, Maryland, and others we've talked about before, about sort of how how connected does an implementation power have to be to enforcing interstate commerce. But that's sort of what we're working with. In 1935, basically, this in the case called the Schechter Poultry versus United States, Congress during the depression had given massive regulatory powers to the president. I'm being a little glib, but it's effectively, ah, president, fix the economy, go. And so the administration issues various rules trying to sort of tweak the supply and demand of various goods in order to sort of regulate their way out of the depression. And one of these is part of the National Recovery Act. And it effectively, president creates a rule for the purchasing of various goods, and one of which is this weird rule where you basically have to buy whatever chicken you get. You don't get to pick the chicken. And so there's this local poultry dealer that wants to let their customers sort of poke their head in the coop and like pick the chicken. And this is illegal under this federal and this federal Great Depression fighting policy that Franklin Roosevelt has dictated. And the Supreme Court and the Schecker brothers say, look, if we were shipping a chicken to New Jersey, you could certainly regulate that. If we're buying a chicken from Pennsylvania, you can regulate that. But a customer basically walking up to our local, effectively poultry dealer for the younger folks, this is effectively just a grocery store that's only selling meat, this one kind of meat, that's not interstate commerce. It's commerce, yes, but it's not interstate commerce. And the commerce clause requires both parts. And the Supreme Court, by a nine to zero opinion, agrees and says if we let the federal government regulate this, this would be meaningfully the destruction of our federal system of government, where most power is left with the states, and the federal government has distinct particular responsibilities and powers. Charles Evans Hughes writes this. It's again a unanimous opinion. Even the more progressive justices that tend to have a slightly more expansive vision of federal power think this is crazy. There are, again, some progressive justices that are very states-right-y. One of them is Lewis Brandeis. And Brandeis is like the big hero of the New Deal people. And he basically doesn't write in the case itself, but he assembles the New Deal lawyer sort of people and says, go home, do this kind of stuff at the states. There's no constitutional authority for the federal government to micromanage basically even local commercial transactions. So we get a 9-0 case in 1935 saying the federal government cannot regulate you like walking into a store and buying a chicken. That is commerce, yes, interstate, no. Jump ahead seven years. By this point, Franklin Roosevelt has appointed pretty much the entirety of the Supreme Court. And one of the things that he has used is he wants justices who have a more expansive interpretation of the Commerce Clause. Some of his advisors had said, look, why don't we just go for a constitutional amendment? We've basically wiped the Republican Party out in both Congress and in the states. We will have no problem getting an amendment ratified saying Congress can regulate basically all commerce, right? You could basically take the interstate out, or Congress can regulate wages and hours and purchasing, whatever, whatever, whatever specific powers you think needs to get at it. Roosevelt just says, look, it's just going to be cleaner to just say commerce is much more expansive. And so in 1942, a case called Wicker versus Philburn comes down. And in this case, that the Agricultural Adjustment Act basically puts a quota on how much grain can get produced because they want to reduce the production to therefore increase the demand, is sort of what the theory is going to be. Or I guess technically shift the demand curve to the side, but the demand will be fixed. But and so there's a guy who's growing grain on his farm and feeding it to his animals on his farm, and he gets prosecuted for breaking the quotas. And he says, look, it's not commerce. I didn't buy it, I didn't sell it, and it's not interstate. It never even left my farm, much less, much less, you know, being sold across state lines. And you have to basically have both of these two provisions for the commerce clause to be relevant here. And originally, under uh originally, actually, in the oral or the sort of internal discussions, a majority of the court was gonna strike this down. Justice Roberts, who is the only remaining justice from the previous time by this point, basically thinks this is crazy. And he's got a majority with him. But they do, they hear it as a re-argument and they re-hear it again. And by this time, Roberts basically realizes he's he's gonna lose. And so he just sort of throws his hands up in the air. But now we have not a 9-0 case saying you can't regulate local chickens, a 9-0 case saying, yes, we recognize this guy isn't buying or selling this grain, and yes, we recognize it's never leaving his farm. But if every single person in the United States aggregated up made a decision like that, that would modify the macroeconomic demands for various goods in interstate commerce. And therefore, the federal government can regulate that. I mean, this is literally the argument that people have been mocking for decades, saying that you could create an endless causal chain of this, then this, then this, then this, then this means that it's interstate commerce. But by a 9-0 case, the Supreme Court says that's fine. As I tell my students, they're often to tell my students, if you like this case, great. If you don't like this case, I have bad news. Almost every single thing that the federal government does today comes from the authorization of this Supreme Court case. And there's another one on the taxing side that effectively retreat that expansively too, that we talked about in another session. So for decades, the Supreme Court, anytime Congress would do something and they would challenge it on federalism grounds, they would just say, see Wickard be Philburn, see Wickard v. Filburn, see Wickard be Filburn. So that anything that in the aggregate could be said to sort of indirectly affect interstate commerce is considered something that the federal government can regulate. So massive, massive expansion of federal power. This is criticized by sort of old school constitutionalists that think no that the court was right in Schechter. This is inconsistent with commerce clause. Probably the sort of leading sort of protester on this in the coming decades is Barry Goldwater, the Arizona Senator, and sort of his political clique of Arizonans. In the 1970s and 80s, he is able to get two of them on the Supreme Court, William Rehnquist and Sandard A. O'Connor, who are both very, very committed to federalism. And Rehnquist clearly hates the Wickard case. He's been seething about it evidently for a long time. And he's been writing various dissents, saying the Commerce Clause has been just totally distorted. In 1995, he now, as a result of appointees by, he now has effectively a majority of justices that think that the Commerce Clause has just gone too far. And so this brings us to the 1995 case of USV Lopez. And in USV Lopez, a kid is basically prosecuted for a federal gun possession charge. Again, emphasize, federal gun possession charge. Nobody contests that a state govern that the state government could say you can't bring a gun onto a school zone or onto a school. Certainly the grounds. The zone gets a little fuzzier, but the grounds itself. Absolutely, state police powers, health, welfare, safety, and morals. But what lets the federal government ban possession? And it's justified under the commerce clause. And Rankwist says effectively, look, Wickard was a terrible decision. He's not quite that blunt about it, but if you're translating, you can see that's what he says. Wickard is terrible. It massively expanded federal power, but we can at least, in the world of a much more integrated economy, basically, we will spot you the interstate. So we will say that Congress can just effectively regulate commerce, whether it's interstate or in-state locally. But it has to be fundamentally about economics and commercial. You can't use commerce as a pretext for health laws, as a pretext for safety laws, as a pretext for other things that are left within the purview of the states. And so in this case, Rankwist says, this kid's got a gun in schools. That's a safety thing. That's a state criminal law thing. The federal government has no authority to do this. Justice Clarence Thomas writes a concurring opinion saying, yes, even Wickard doesn't say you can regulate literally anything, but it has to be about like goods and production and sales and something. But he says nonetheless, Wickard still is terrible, we should overturn it. Nobody else joins that opinion. Clarence Thomas, every commerce clause case since then basically says, and Wickard is terrible, we should overturn it. The dissents under Stephen Breyer and David Souter effectively say, yes, but this may not directly look like commerce, but if kids are fearful that there are guns in schools, they'll sort of be unnerved, they'll learn less. If they learn less, they won't do as well, they won't go to college, they won't make as much money, and therefore that will affect at the macro level interstate commerce, which Rehnquist basically says proves his point. That if you can create this sort of endless causal loop, that the federal government can basically be said to be able to do anything it wants, if you know, seven hops down the line, it affects interstate commerce. So Lopez stands for the print, basically the principle that the federal government is indeed one of enumerated powers. It can regulate commerce, even if it's not interstate, but it can't regulate other, use commerce as a way to regulate basically regular criminal law. There's a couple cases afterward. One of them is I tell my students is why I'm sort of damned to be a law professor, because I was in college when this one came down, which is Gonzalez E. Raish, which is effectively little old lady is has a California marijuana license. She's growing and smoking marijuana in her house, and the federal DEA comes after her, saying it's interstate commerce. And she says basically the same stuff that Wickard did, which is look, there did uh Philburn did, I should say, in the Wickard case. Um I'm not buying it, I'm not selling it, I'm growing it in my house, I'm smoking it in my house. It's not interstate, it's not commerce. And again, Clarence Thomas says, yep, this is ridiculous. Wickard is stupid, overturn it. Rankwist, who's dying at this point, and O'Connor, O'Connor writes an opinion joined by Rankwist saying this is clearly exceeds interstate commerce. Scalia and Kennedy actually flip, interestingly. And they say, we think both Wickard and Lopez are fine. We think this case looks more like Wickard than like Lopez, because we don't think this is basically a criminal sort of morals law. We think this is about suppressing a market for a good. We think the federal government has the commerce clause authority to suppress marijuana as a product as commerce. So they don't they don't say Lopez is wrong. They just say this one looks more like Wickard than like Lopez. Rehnquist and O'Connor will say this looks more like Lopez. So that doesn't change the doctrine in a sense, but it suggests that the court is not as a majority strictly reading the commerce clause, strictly reading that case. And then jumping ahead to the Sibalius case in 2012, NFIB versus Sibelius, this was whether the so-called individual mandate of the Affordable Care Act or Obamacare, as more popularly known, which basically imposes a fine if you don't purchase health insurance. And this gets challenged as a violation of the commerce clause. And a majority of the court actually agrees with that, with an asterisk. The majority of the court says yes, the commerce clause cannot be used to basically create its own commerce, to force commerce where it doesn't exist. Not purchasing a good is not a commercial action. But John Roberts says, nonetheless, we can instead think of this as a really it's a tax. And so he's willing to uphold the individual mandate as a tax because it's just a financial penalty and not, and therefore you go to prison or something like that. And the dissent squabbles about that and says, look where it is in the law and how it's structured. This is not a tax. This is a criminal penalty. And so you can't use the tax power for this. The interesting thing in this case is that actually uh Anthony Kennedy, who's often thought of as the moderate of the era, is actually the one who's the most vocal. And apparently their accounts afterward are that he's like in John Roberts' office screaming at him for days. They have to, after Roberts flips, originally he's going to strike the mandate on Commerce Ground Ground. And then he flips, and Kennedy supposedly is like camped out in Roberts' office, like bellowing at him. It's not Scalia, it's not Thomas, it's Kennedy of all people, who's bellowing at him. Interesting. So there's all sorts of fun backstory you can read. Uh the journalist Jan Crawford has written sort of about this kind of stuff. So the takeaway from sort of the sweep of this is the federal government can regulate basically anything that's commercial. It can't regulate stuff that is not fundamentally commercial. Now, that being said, the court has been very, very reluctant to sort of apply Lopez. In fact, literally, Congress repasses the No Guns in Schools Act, which I always feel bad if you're a member of Congress. You can't vote against that, even if you think it's unconstitutional. You're gonna get crucified in an ad, right? It's gonna have like sirens and scary lights and like stows of gunshots and crime children. You can't vote against that politically. And so they repass it and basically say Congress, comma, believing this affects interstate commerce because the gun probably moved across the state line somewhere, comma, comma. And rather than say, like, come on, this is a pretext. The Supreme Court let that stand. And so literally a couple days ago, I was even reading an article saying Lopez officially stands for this really, really strict doctrine, not really strict, but it's not pre-Wickard, but this fairly clear rule that Congress can't regulate health, welfare, safety, morals. But the court really hasn't wanted to implement that. So functionally speaking, we're still closer to the wicked world, where as long as Congress can sort of squint, C seven hops and call it commerce, the federal government can regulate it. So they are closer to sort of police powers of the states than I think the sort of certainly the original understanding of a much more limited commerce power. It certainly don't worry about the interstate, but the commerce link itself is is, I think, not as not particularly rigorously enforced.

SPEAKER_00: 17:42

For better or worse. Yeah. It's just an interesting, especially when we talk about USV Lopez, it's just it's interesting to think about how the Supreme Court ruled, right? They're not saying that you can't have the law, it just doesn't really fit under the commerce clause. But in my students always loved the Wickard case because again, it it does feel like, no, this isn't my farm.

SPEAKER_01: 18:07

But when you talk about it, so when I loved it, you mean they hated it.

SPEAKER_00: 18:12

Yeah. They loved it because they loved the story of it. And they were incensed by it. Because again, it it does. It's like, this is my farm. I'm feeding my livestock. But the decision that, you know, it actually could affect if if more people did it, it could affect the supply and demand. And we're trying to kind of regulate that in the economy. It's I feel like, I mean, I do, I very much enjoy Supreme Court. I enjoy constitutional law. And I think you're not supposed to have favorites, but the commerce clause for me is just so interesting because of how it's been looked at throughout history.

SPEAKER_01: 18:56

It's my favorite, as I've joked, that the day that I don't never want to give up if I have to miss a class is the Commerce Clause Day. And in our introductory CEL 200 class, I definitely strong arm my colleagues to make sure there's a day where we go through Schechter, Wickard, and Raish at least. So, and yeah, I think, and as you said, this is one that students get excited about. Although I think I've probably observed like 95% of students walk out irate at Wickard. I I can't say they're wrong. I have sympathies that way myself, but it is really striking that it is really striking. But it makes it does show the importance, certainly, of constitutional law. And for folks that are critical of Wickard, which again I think is quite defensible, the court doesn't necessarily get every one of them right.

SPEAKER_00: 19:47

Exactly. And that's, I mean, that's the nice thing is that they're not supposed to get them all right. And that's why there's checks and balances. And this is why we're doing this entire podcast series. So I'm kind of sad because this is actually our last in our Supreme Court cases. However, in kind of our next semester, if you will, we are getting into American history. We'll still be talking about constitutional law. So, Dr. Beinberg, thank you so much. And our next episode is actually on Christmas Day. And then the one after that is on New Year's Day and why they are considered civic holidays. And then we jump into a whole new section of political parties. So thank you so much. And I'm looking forward to our next chunk of podcasts.