Wickard V. Filburn - Subsequent Developments

Subsequent Developments

United States v. Lopez (1995) was the first decision in six decades to invalidate a federal statute on the grounds that it exceeded the power of the Congress under the Commerce Clause of the Constitution. The opinion described Wickard v. Filburn as "perhaps the most far reaching example of Commerce Clause authority over intrastate commerce." Lopez held that while Congress had broad lawmaking authority under the Commerce Clause, the power was limited, and did not extend so far from "commerce" as to authorize the regulation of the carrying of handguns, especially when there was no evidence that carrying them affected the economy on a massive scale.

The Supreme Court has since relied heavily on Filburn in upholding the power of the federal government to prosecute individuals who grow their own medicinal marijuana pursuant to state law. The Supreme Court subsequently held that, as with the home grown wheat at issue in the present case, home grown marijuana is a legitimate subject of federal regulation because it competes with marijuana that moves in interstate commerce. As the Court explained in Gonzales v. Raich (2005):

"Wickard thus establishes that Congress can regulate purely intrastate activity that is not itself 'commercial', in that it is not produced for sale, if it concludes that failure to regulate that class of activity would undercut the regulation of the interstate market in that commodity."

One commentator has written that "In the wake of New Deal era Supreme Court jurisprudence it has become clear that Congress has acquired the authority to regulate private economic activity in a manner near limitless in its purview." Justice Rehnquist's opinion in United States v. Lopez explains:

Jones & Laughlin Steel, Darby, and Wickard ushered in an era of Commerce Clause jurisprudence that greatly expanded the previously defined authority of Congress under that Clause. In part, this was a recognition of the great changes that had occurred in the way business was carried on in this country. Enterprises that had once been local or at most regional in nature had become national in scope. But the doctrinal change also reflected a view that earlier Commerce Clause cases artificially had constrained the authority of Congress to regulate interstate commerce.