BRINGING IN THE SHEAVES: HOME GROWN WHEAT, WEED, AND LIMITS ON THE COMMERCE CLAUSE

Article Written By: M. Reed Hopper

United States Supreme Court precedent does not allow us to define the full scope of federal regulation under the Commerce Clause. It does, however, allow us to define the outer limits. By authorizing federal regulation of homegrown wheat, Wickard v. Filburn has long been seen as the furthest reach of the commerce power. It still is.

The Supreme Court's authorization of a federal statute regulating home grown marijuana in Gonzales v. Raich is a quintessential application of Wickard, though it is not an extension of that case. Wickard and Raich allow federal regulation of intrastate economic activity when necessary to support a federal market scheme involving fungible commodities. Whether and to what extent the Supreme Court will allow federal regulation of intrastate noneconomic activity remain open questions. Cases involving noncommercial regulation should continue to be analyzed under the multi-part Lopez/Morrison test to determine if the regulation "substantially affects" interstate commerce.

The Supreme Court's decision in National Federation of Independent Business (NFIB) v. Sebelius requires, as a constitutional minimum, that federal enactments regulate existing economic activity, even under the Necessary and Proper Clause. Congress may not use its commerce power to compel individuals to purchase a particular product or force them into a regulated market. With the current composition of the Supreme Court, the commerce power will not be stretched to cover activities that, if regulated, would authorize a virtual federal police power like that enjoyed by the States.

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