Roscoe Filburn, like many a farmer before him, grew wheat for consumption on his own farm. In so doing, he ran afoul of the Agricultural Adjustment Act, which limited the amount of wheat that farmers could grow on their own land. The law, intended to stabilize wheat prices, was part of a system of top-down management and central planning that President Franklin D. Roosevelt’s “Brain Trust” and a compliant Congress sought to impose on the national economy. Roscoe brought suit, arguing that his wheat could not be regulated under the Commerce Clause because it wasn’t connected with any commercial activity at all.
The U.S. Supreme Court upheld the law under the Commerce Clause. In order to sidestep the textual problem presented by the lack of any “interstate commerce” to regulate, the Court invented a new principle, dubbed the “aggregation principle.” According to this principle, the production of wheat for personal consumption could have a “substantial effect” on the interstate wheat market and therefore come within the scope of Congress’ power to regulate interstate commerce if many farmers followed Roscoe’s example. The Court rationalized the government’s actions, stating that the fact that Rosco’s “own contribution to the demand for wheat may be trivial by itself is not enough to remove him from the scope of federal regulation where, as here, his contribution, taken together with that of many others similarly situated, is far from trivial.”
There is now no distinction between “interstate” and “intrastate” commerce to place any limits on Congress’ authority under the Commerce Clause to micromanage economic life. In the 70 years between Wickard and NFIB v. Sebelius in 2012, the Supreme Court found only two narrow laws to lie beyond Congress’ constitutionally enumerated powers.