At CFIF, we’ve unceasingly highlighted the foundational role of intellectual property (IP) rights –…
CFIF on Twitter CFIF on YouTube
Trump Administration Stands Up for U.S. Copyright Protections Under Potential South African Threat

At CFIF, we’ve unceasingly highlighted the foundational role of intellectual property (IP) rights – patents, copyrights, trademarks and trade secrets – in what we know as “American Exceptionalism.”

No nation matches our legacy of IP protection throughout the decades and centuries.  Our Founding Fathers specifically inserted IP protections in Article I of the Constitution, even before the First Amendment or other Bill of Rights protections.

As a direct result no nation in human history remotely matches our legacy of scientific inventiveness, artistic innovation, global influence, power and prosperity.

And today, IP-centric industries account for about 40% of the total U.S. economy, and 45 million jobs – nearly 30% of the U.S. labor force.  For perspective, that U.S. IP…[more]

March 24, 2020 • 02:25 pm

Liberty Update

CFIFs latest news, commentary and alerts delivered to your inbox.
Jester's CourtroomLegal tales stranger than stranger than fiction: Ridiculous and sometimes funny lawsuits plaguing our courts.
Wicked Wickard v. Filburn Does Not Immunize ObamaCare Print
By Timothy H. Lee
Thursday, November 17 2011
Wickard does not stand for the proposition that the federal government can force every American citizen to involuntarily engage in commercial activity.

If the 1942 decision Wickard v. Filburn doesn’t ring a bell, that’s certainly understandable. 

Even informed adults at the time were preoccupied by slightly more immediate threats to life, liberty and the pursuit of happiness than Wickard

Nevertheless, it’s poetically appropriate that “Wickard” rhymes with “wicked,” with no personal offense intended toward the late Secretary of Agriculture Claude R. Wickard or his heirs.  The ruling bearing his name simply ranks high in the pantheon of regrettable and destructive decisions in United States Supreme Court history.  Moreover, Wickard is a name that will become familiar in ensuing months, as the Supreme Court considers ObamaCare in a case whose impact will reverberate far beyond the issue of healthcare, and far into future American decades. 

First, a primer on Wickard and its malignant legacy. 

Roscoe Filburn was a small farmer in Montgomery County, Ohio, who maintained dairy cattle, raised poultry and sold milk and eggs.  As part of his operation, Mr. Filburn raised a “small acreage of winter wheat” for purposes of feeding his poultry and livestock, making flour for home consumption and occasionally for sale.  Meanwhile, as part of FDR’s New Deal in 1938, the federal government passed the Agricultural Adjustment Act, which among other provisions set quotas on wheat growers in order to artificially dictate wheat prices.  The law further empowered the Secretary of Agriculture to dictate each year a national acreage allotment for upcoming wheat crops, which were then apportioned by state, county and eventually individual farm. 

We have since become all too familiar with the toxic failure of government price controls, and that sort of bureaucratic micromanagement perpetuated the Depression instead of ending it, but that’s another matter. 

The Agriculture Department told Mr. Filburn that he could grow precisely 11.1 acres of wheat for 1941, but he instead sowed 23 acres for his own on-farm use.  For this, Mr. Filburn was charged with “marketing excess” and ordered to destroy his crops and pay a fine.  Mr. Filburn rightly claimed that his crop did not constitute “interstate commerce” because it was for his own use, and therefore did not even enter the stream of intra-state commerce, let alone inter-state commerce. 

An unsympathetic Supreme Court, almost identical in personnel to the one that approved the racist internment of Japanese-Americans in Korematsu v. United States two years later, held against the hapless Mr. Filburn.  According to the Court, the wheat that he grew for home consumption, if extended to the hypothetical aggregate, could have a “cumulative effect” on wheat demand on the interstate commodity market and therefore rose to the level of “interstate commerce.” 

From that point forward, Congress considered itself essentially untethered from the Constitution’s Commerce Clause of Article I, Section 8, which specifically limited federal authority, “To regulate Commerce with foreign Nations, and among the several States, and with the Indian tribes.”  Recall former Speaker of the House Nancy Pelosi’s bewildered, “Are you serious?” response, when asked to cite Constitutional authority for ObamaCare. 

But some limits did remain.  In the past two decades, the Supreme Court reasserted some limits, including a 1990s decision overturning a Congressional firearm law weakly justified on “interstate commerce” grounds.  Moreover, Congress heretofore had at least not claimed authority under Wickard to compel involuntary commercial activity where none existed. 

That is, until ObamaCare. 

Today, proponents of ObamaCare and its “individual mandate” compelling every living citizen to proactively engage in commercial activity claim authority under Wickard.  In last week’s indefensible D.C. Court of Appeals decision upholding ObamaCare, Judge Laurence Silberman explicitly stated, “We think the closest Supreme Court precedent to our case is Wickard.” 

Judge Silberman added that, “the logic of the opinion would apply to force any farmer, no matter how small, into buying wheat in the open market.”  He also offered possession of drugs or child pornography as analogous valid prohibitions. 

But those examples are manifestly dissimilar, and it’s frankly alarming that Judge Silberman descended into such illogic for so important a case. 

First, at issue in Wickard wasn’t a federal law forcing farmers “into buying wheat on the open market.”  Rather, the issue was a penalty for voluntarily exceeding a wheat harvesting limit.  A farmer could avoid that penalty altogether by choosing to not exceed the limit, to not grow any wheat at all or to not farm in the first place.  Similarly, a person can avoid child pornography and drug possession laws by not possessing child pornography or illegal drugs. 

Accordingly, Wickard does not stand for the proposition that the federal government can force every American citizen to involuntarily engage in commercial activity.  It simply, albeit illogically, stands for the proposition that voluntary activity can be expansively aggregated to amount to “interstate commerce.” 

If we’re extremely fortunate, the Court will at long last overturn Wickard this term.  Absent that, however, it must at least recognize that the decision does not justify ObamaCare. 

Question of the Week   
In which one of the following years did Congress first meet in Washington, D.C.?
More Questions
Quote of the Day   
 
"As if the world isn't crazy enough, some extremists want more crazy -- namely a falling out between President Trump and Dr. Anthony Fauci.The director of the National Institute of Allergy and Infectious Diseases, Fauci is the country's No. 1 immunologist and has advised six presidents in times of trouble.So the anti-Trump obsessives are all but praying for the president to can him, and so justify…[more]
 
 
—New York Post Editorial Board
— New York Post Editorial Board
 
Liberty Poll   

Who is most to blame for the delay in passage of the critical coronavirus economic recovery (or stimulus) bill?