All Commentary
Tuesday, December 1, 1992

Are There No Limits to Federal Regulatory Power?

The courts have effectively rewritten key provisions of the Constitution.

Russell G. Ryan is a lawyer and freelance writer in Washington, D.C.

Most of us recall from our civics classes the quaint notion that our federal government is one of “limited” and “enumerated” powers. We might also remember that James Madison, in his Federalist No. 45, assured skeptics of a central government that “[t]he powers delegated by the proposed Constitution to the Federal government are few and defined.” For those of us who took Madison and our civics teachers at their word, the ubiquitous tentacles of today’s federal behemoth can be positively bewildering, often causing us to scratch our heads and wonder: “What happened?”

For example, several weeks ago I spotted some ants crawling on my kitchen floor. Frustrated that I had no insecticide designed specifically to kill ants, I reached for a popular wasp and hornet spray, confident it would do the job just as well. And as the commercial might say, “BANG!” Those poor critters would have fared better against a neutron bomb.

As I sat back to savor the victory, however, I noticed an intimidating warning on the back of the spray can (reminiscent of the proverbial mattress tag threatening all manner of trouble if it is removed): “It is a violation of Federal law to use this product in a manner inconsistent with its labeling.” Had I really committed a federal offense? Admittedly, I had used a wasp and hornet spray to obliterate a few ants, and worse yet I had, contrary to the directions on the can, sprayed indoors and at very close range. But could our government of limited and enumerated powers really make a federal case out of how I choose to kill bugs in my own kitchen?

The following day in my law office, I determined to find the answer. I was sure that the power to regulate pesticide use was not among the enumerated powers granted to Congress in the Constitution—nor was even a more general power to regulate chemicals or kitchens. Yet, as I soon discovered, even without such specific enumerated power, Congress had indeed enacted an elaborate regulatory scheme for pesticides, called the Federal Insecticide, Fungicide, and Rodenticide Act, section 12(a)(2)(G) of which actually does outlaw the use of any pesticide inconsistent with its labeling. Moreover, as the statute expressly contemplates, the federal Environmental Protection Agency has in turn promulgated hundreds of pages of further rules and regulations governing pesticides, including one that explicitly requires all pesticide labels to include a warning that “It is a violation of Federal law to use this product in a manner inconsistent with its labeling.”

The constitutional authority cited for this massive regulatory scheme, like that cited for many similar schemes enacted by Congress, is Article I, Section 8, clause 3 of the Constitution, which empowers Congress to “regulate Commerce . . . among the several States.” How, you might reasonably ask, does my kitchen use of a bug spray constitute interstate commerce? If you need to ask, you obviously did not spend three years and tens of thousands of dollars on a law school education. But don’t feel too bad; many of us who did spend the time and money to get through law school still—if I may borrow the trendiest phrase of the political season—“just don’t get it.”

As any law student will tell you, the so-called “commerce clause” of the Constitution, like much of the rest of the document, simply no longer means what it plainly says. For the past half century, the Supreme Court has interpreted the phrase “Commerce among the several States” to include not just commerce that occurs between or among two or more states, but virtually any activity that might, however remotely and indirectly, have a theoretical effect on such commerce, even if the activity occurs entirely within the borders of only one state.


Wickard versus Filburn

In fact, this November marks the 50th anniversary of perhaps the most infamous of all of the Supreme Court’s commerce clause decisions, Wickard v. Filburn (1942), which rejected a farmer’s challenge to the Agricultural Adjustment Act of 1938. In earlier challenges to President Franklin Roosevelt’s New Deal, the Supreme Court had struck down several other regulatory schemes on the grounds that they unconstitutionally exceeded the federal government’s power to regulate interstate commerce. By 1942, however, despite the failure of his “court-packing” plan, President Roosevelt was able to fill a sufficient number of court vacancies to obtain a far more liberal jurisprudence regarding federal regulatory power.

Mr. Filburn was the owner and operator of a small dairy and poultry farm in Ohio. Each year, he also raised a small quantity of wheat for the sole purposes of feeding his animals, feeding his own family, and seeding for the following year. Although his entire wheat crop was consumed on the farm property and no part was sold on the market, Filburn was subjected to a massive new marketing quota scheme dictated from Washington pursuant to the Agricultural Adjustment Act, the essential purpose of which was to prop up the price of wheat. When Filburn exceeded his “wheat acreage allotment” for 1941, the feds slapped him with a statutory penalty.

In order to uphold the penalty against Filburn as a permissible regulation of “commerce among the several States,” the Roosevelt Court had to overcome two inconvenient facts: The offending wheat crop was never entered into the stream of commerce, and it never left the State of Ohio (or, for that matter, the boundaries of Filburn’s farm). The Court overcame the first of these hurdles by magically redefining the word “Commerce” to mean not only the buying and selling of goods, but also the “consumption” of goods. It overcame the second by citing earlier decisions that had already rewritten the phrase “among the several States” to mean either among the several States or within only one state but having a substantial economic effect, whether direct or indirect, or interstate commerce. For sticklers who might question the Court’s apparent infidelity to the plain language of the Constitution, the Court explained that economic realities had “made the mechanical application of legal formulas no longer feasible.”

Even having rewritten the Constitution, however, the Court still needed to explain how one Ohio farmer’s small wheat crop, used entirely for home consumption, could have a “substantial economic effect” on interstate commerce. In a brilliant demonstration of the result-oriented jurisprudence of the day, the justices reasoned—unanimously!—that wheat grown solely for home consumption “supplies a need of the man who grew it which would otherwise be reflected by purchases in the open market,” and that although Filburn’s own contribution to this depression in the demand for wheat “may be trivial by itself,” his contribution, “taken together with that of many others similarly situated, is far from trivial.” (Even the law professors get a chuckle when they explain this reasoning.)

After 50 years, Wickard v. Filburn endures as a classic example of how the Courts have stretched, pulled, and twisted the plain language of the Constitution beyond recognition, effectively rewriting key provisions without having to go through the formal amendment process set out in Article V. The decision also serves as a reminder of how our “limited” federal government has steadily grown into a leviathan bureaucracy that consumes over a quarter of the country’s gross domestic product in order to regulate even the distance from which we spray insecticide in our kitchens.