Guest Essayist: Daniel A. Cotter

In 1938, Congress passed the Agricultural Adjustment Act of 1938 (the “1938 Act”), which it enacted to address and correct provisions of the Agricultural Adjustment Act of 1933 for farm subsidies that the Supreme Court had found unconstitutional.  The 1938 Act established marketing quotas and price controls.  Roscoe Filburn, a farmer in Ohio, admittedly sowed twelve acres of wheat more than he was permitted under the 1938 Act, but none of it was sold on the open market.  Filburn was fined $117.11 for violating the 1938 Act.  Filburn sued, challenging the penalty.  The main issue before the Supreme Court was whether wheat that Filburn used for personal consumption was subject to the quotas imposed by the 1938 Act and whether local commerce could be regulated by the Federal government under the Commerce Clause of the United States Constitution.

Background of the Case

Under the 1938 Act, the Secretary of Agriculture was authorized to set a quota for wheat production to balance supply and demand.  The 1938 Act also made price support mandatory for corn and cotton and set quotas for a number of other agricultural products, such as tobacco.  In a previous case, Mulford v. Smith, 307 U.S. 38 (1939), the Supreme Court upheld the tobacco quotas set by the 1938 Act.

Filburn was a small Ohio farmer who planted a small plot of winter wheat to feed his chickens and cattle and to make into flour for his family’s consumption.  In 1941, Filburn planted beyond his quota allotment resulting in 239 extra bushels of wheat.  The 1938 Act authorized a penalty of $.49 per bushel, resulting in the $117.11 penalty assessed against him.

The Controversy

Filburn contested the fine, arguing that Congress had no authority to regulate commerce that was not interstate in nature.  The Ohio District Court permanently enjoined the Secretary of Agriculture from enforcing the penalty against Filburn, and the government appealed.

The Supreme Court Decision

The Supreme Court unanimously held that the wheat quota authorized by the 1938 Act was constitutional under Article I, Section 8 of the United States Constitution, which provides Congress with the power “[t]o regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.”  The opinion, written by Justice Robert Jackson, rejected the argument that the Commerce Clause did not apply to activity that was asserted to be local only.  Jackson stated that wheat intended for consumption by Filburn and not marketed nevertheless had an impact on interstate commerce so could be regulated by the Federal government.  The Court held:

It is well established by decisions of this Court that the power to regulate commerce includes the power to regulate the prices at which commodities in that commerce are dealt in and practices affecting such prices. One of the primary purposes of the Act in question was to increase the market price of wheat, and, to that end, to limit the volume thereof that could affect the market. It can hardly be denied that a factor of such volume and variability as home-consumed wheat would have a substantial influence on price and market conditions. This may arise because being in marketable condition such wheat overhangs the market, and, if induced by rising prices, tends to flow into the market and check price increases. But if we assume that it is never marketed, it supplies a need of the man who grew it which would otherwise be reflected by purchases in the open market. Home-grown wheat in this sense competes with wheat in commerce. The stimulation of commerce is a use of the regulatory function quite as definitely as prohibitions or restrictions thereon. This record leaves us in no doubt that Congress may properly have considered that wheat consumed on the farm where grown, if wholly outside the scheme of regulation, would have a substantial effect in defeating and obstructing its purpose to stimulate trade therein at increased prices.

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. It is of the essence of regulation that it lays a restraining hand on the self-interest of the regulated, and that advantages from the regulation commonly fall to others. 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. Such conflicts rarely lend themselves to judicial determination. And with the wisdom, workability, or fairness, of the plan of regulation, we have nothing to do.

Wickard v. Filburn, 317 U.S. 111 (1942), 128-129 (Emphasis added.)

Jackson referred to the decision of Chief Justice John Marshall in Gibbons v. Ogden, expressing Marshall’s position that the Commerce Clause powers were extremely broad, stating:

“At the beginning, Chief Justice Marshall described the federal commerce power with a breadth never yet exceeded. Gibbons v. Ogden, 9 Wheat. 1, 22 U. S. 194-195.”

Id. at 120.


The Filburn decision was a landmark one because it significantly expanded the reach of the Commerce Clause and began a period of the Supreme Court permitting Congress extensive powers under the Commerce Clause.  The Supreme Court deferred to Congress in its use of the Commerce Clause until the 1990s, when the Supreme Court began to narrow the extent of Congress’ power under the Commerce Clause.

Wickard v. Filburn (1942) Supreme Court decision 9-0:

Dan Cotter is a Partner at Butler Rubin Saltarelli & Boyd LLP and an Adjunct Professor at The John Marshall Law School, where he teaches SCOTUS Judicial Biographies.  He is also a Past President of The Chicago Bar Association. The article contains his opinions and is not to be attributed to Butler Rubin or any of its clients, The Chicago Bar Association, or John Marshall.

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