Friday, July 24, 2015

A Satchel of Embarrassments: Robert Jackson and Wickard v. Filburn

Robert Jackson
Associate Justice Robert Jackson had a remarkable career in law. After high school, he apprenticed in a law office, attended one year of a two year law school program, apprenticed another year, and then was admitted to practice law in New York. Over the course of his life, he rose to the positions of Solicitor General of the United States, Attorney General of the United States, and Justice of the Supreme Court. While serving as Justice, he took a leave of absence at the request of President Truman and served as the Chief US Prosecutor at the Nuremberg War Crimes Tribunal.

Beyond the career achievements, Justice Jackson likely is most remembered either because he wrote the decision for the Supreme Court in West Virginia Board of Education v. Barnette, in which he crafted the strong defense of individual autonomy by which even public school students were protected from coerced statements of ideology, or his scouring of cases in which violations of procedural due process (that aspect of "due process" that actually pertains to assuring that adequate procedural protections precede in time the denial of rights to life, to liberty and to property). Again, I would never include Justice Jackson on a list of the Ten Worst Justices.

But Justice Jackson wrote Wickard v. Filburn, and in doing so, he crafted a rule by which the power of the federal Congress to reach deeply into highly local, intra-State activities was established. That rule, the rule in Wickard v. Filburn, in a case from 1942, is relevant today as Americans wonder how Congress acquired the power to coerce them to purchase health insurance.

Roscoe Filburn, an Ohio farmer, sued to prevent imposition of taxes on wheat grown by him on his own property. The tax was intended to depress the excess production of wheat, and was assessed only after Congress authorized the imposition of such taxes, and after farmers voted to adopt it. Congress sought to prevent the deflation in pricing of wheat that would result from "excess" production. By limiting the amounts of wheat each farmer could grow, the over all supply of wheat was kept in check, and downward spirals in pricing due to gluts were to be avoided.

Filburn contended that Congress had exceeded its power under the Commerce Clause. That Clause grants to Congress the power "[t]o regulate commerce with foreign nations, and among the several states, and with the Indian tribes[.]" In Filburn's view, he grew an excess of wheat solely for his private use on his farm solely and completely within the State of Ohio, and without intention of putting his wheat into interstate commerce.

Justice Jackson's opinion for the Court rejected Filburn's attempt to demonstrate that the Commerce Clause power of Congress was precluded from interfering in such parochial exercises as his production of a "personal supply" of wheat for use on his farm. Jackson concluded that even such matters as an amount of wheat above quota grown, threshed, and consumed within the borders of a farm within the borders of a single State could have the harmful impact Congress contemplated it might have on interstate commerce in wheat by reducing overall demand for purchased wheat. For that reason, though admittedly an entirely local activity on Filburn's end, Jackson concluded that the Commerce Clause power reached it:
That an activity is of local character may help in a doubtful case to determine whether Congress intended to reach it. [] But even if [Filburn'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."
Justice Jackson took his conclusion further. He anticipated the conclusion many would draw, that by limiting the entirely local act of growing and consuming wheat under the Commerce Clause, Congress could, in effect turn willing producers into unwilling consumers, in effect, shifting to others a benefit (the sale of wheat to another) that would have been absent but for the ability to bar a man from growing his own wheat:
It is said, however, that this Act, forcing some farmers into the market to buy what they could provide for themselves, is an unfair promotion of the markets and prices of specializing wheat growers. … The conflicts of economic interest between the regulated and those who advantage by it are wisely left under our system to resolution by the Congress under its more flexible and responsible legislative process.
Justice Jackson's opinion for the Court in Wickard marked the beginning of an era about 50 years in length in which the Court simply could not find a limit to the reach of Congress under the Commerce Clause. The language of the Clause notwithstanding, the intention of the States to retain powers over internal affairs, including economic affairs, notwithstanding, Jackson's opinion emboldened an overreaching Congress. For this reason, for the Wickard opinion, Justice Jackson's head is also found in the Bag of Shame.