Home / General / “It is hardly lack of due process for the Government to regulate that which it subsidizes”: The Ballad of Roscoe Filburn

“It is hardly lack of due process for the Government to regulate that which it subsidizes”: The Ballad of Roscoe Filburn

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mr-plow3_

Recently, Bijan reminded me in comments that I’ve never quoted some of my favorite passages from the United States Reports here. These quotes from Robert Jackson’s opinion in Wickard v. Filburn aren’t well known because they come from the section dismissing the particularly frivolous due process claim. But they sum up the case and the having-it-all-ways faux libertarianism the case has come to represent in many quarters perfectly:

It is agreed that, as the result of the wheat programs, he is able to market his wheat at a price “far above any world price based on the natural reaction of supply and demand.” We can hardly find a denial of due process in these circumstances, particularly since it is even doubtful that appellee’s burdens under the program outweigh his benefits. It is hardly lack of due process for the Government to regulate that which it subsidizes.

[…]

Only when he threshed, and thereby made it a part of the bulk of wheat overhanging the market, did he become subject to penalty. He has made no effort to show that the value of his excess wheat consumed without threshing was less than it would have been had it been threshed while subject to the statutory provisions in force at the time of planting. Concurrently with the increase in the amount of the penalty, Congress authorized a substantial increase in the amount of the loan which might be made to cooperators upon stored farm marketing excess wheat. That appellee is the worse off for the aggregate of this legislation does not appear; it only appears that, if he could get all that the Government gives and do nothing that the Government asks, he would be better off than this law allows. To deny him this is not to deny him due process of law.

Filburn was not a hobbyist growing a little food for his family. (If he was, there would have been no case; the quotas didn’t apply to farms growing less than 15 acres of wheat.) He was someone with a commercial farm who not only wanted to sell substantial amounts of wheat but wanted to take advantage of federal price supports that allowed him to sell the wheat for more than twice the price it would command on the world market. While he wanted to take advantage of the federal guarantees, however, he wasn’t willing to comply with the federal regulations, which included a production quota that was a crucial element in the price supports. Filburn’s opposition federal regulation of the interstate wheat market applying to him was highly selective.

The only reason to be the slightest bit concerned about the Court’s obviously correct holding in Filburn is the slippery slope. Without it, as one commenter [mds!] astutely noted, you’re left with an argument that the congressional regulation of commercial wheat production is fine, but actually applying the regulation to a commercial entity involved in wheat production just goes too far. But when the facts are no longer carefully sanitized, it’s pretty hard to argue that there’s a direct path between Wickard and JACK BOOTED FEDERAL THUGS seizing the broccoli from your home garden while simultaneously requiring you to purchase it from Big Broccoli. Article I gives the federal government the authority to regulate interstate commodity markets, and doing so requires the federal government to regulate individual commercial entities, even if not everything these entities grow will be sold on interstate markets. It’s really not a complicated question, and Wickard is not a slippery slope to unlimited federal power.

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