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Comment by Hizonner | Hacker News Reader

OMG, they're coming for Wickard v. Filburn.

Context: this is the infamous Supreme Court case that decided the federal government has the right to regulate a farmer growing wheat for his own consumption (and, by extension, pretty much anything else it wants to), because by not buying wheat on the market he's engaging in interstate commerce.

https://en.wikipedia.org/wiki/Wickard_v._Filburn

From a European perspective, looking at this case the framing seems a bit odd. Roscoe Filburn was a commercial dairy farmer. The Wikipedia article talk about private consumption, but how can consumption inside a commercial venture (feeding the cows) be private?

If a farmer here buys fuels for their tractor, that is taxed and filed under the commercial venture of the farm. If the same farmer buys fuel for a private car, it is private consumption and taxed differently. Setting aside tax fraud, there is a very clear line between private consumption and consumption as part of the commercial venture.

That wasn't the question. Question is if interstate commerce. If you grow a plant on your own land and sort of sell it to your own business maybe it's commerce, but only interstate by the most disingenuous stretch.

The EU equivalent would be EU constitution allowing restriction on internation commerce but then considering commerce entirely within France to be internation because hypothetically people in France might have otherwise bought from Germany.

We kind of have this kind of regulation in EU. A classic example is that commercial eggs must not be washed. This is made into an EU regulation and part of the reason for it is to enable and encourage free trade by having everyone using the same rules.

Free trade was one of the founding principles of the EU and shared regulations for food production are fairly often referenced when people discuss the pro and cons of EU membership. In some cases I have seen regulations relaxed in my own country in order to comply with the EU regulation, and at other times been made more strict, all for the goal of more trade between countries.

Commercial eggs, yes, but the EU does not try to stop you from washing eggs that you eat yourself. The court case discussed here did.

Private versus public is not the important part here; interstate versus intrastate is. The US federal government was designed (via the commerce clause in the US Constitution) to be unable to regulate commerce that occurs entirely within a state, which should be entirely a matter for that state. Taken to its limit, that would mean, for instance, that federal laws about controlled substances would not apply to products produced, sold, and consumed entirely within one state, so there'd be no more ambiguity about whether the federal government can go after producers or consumers of marijuana in a state that has legalized it.

In Wickard v Filburn, the court effectively decided the federal government could regulate commerce occurring entirely within one state, on the theory that intrastate transactions could reduce interstate demand. That's an incredibly expansive and arbitrary justification, and effectively removed all limitations from the commerce clause. Invalidating that ruling would be a massive reduction in the power of the federal government to limit people's rights within a state, and an expansion of the power of individual states to make more things legal. (Note that individual states can already in general make things illegal that the federal government permits, so the primary effect of invalidating Wickard v Filburn would be to make more activities legal, rather than illegal.)

There would be a lot of fallout, and potentially a need for more targeted follow-up cases to confirm the legality of specific federal regulation that previously just relied on Wickard v Filburn; the outcome would not be 100% positive. But on balance it seems like a net positive.

The reason I mentioned private vs commercial is that the Wikipedia article (and other articles on the subject) focused on this distinction. The wheat itself was not sold and thus not commercial. The wheat never entered commerce and was consumed privately. They also describe this as farmers doing non-commercial activity.

If we do ignore that aspect, the Federal vs state regulations is the interesting aspect Wickard v. Filburn.

That factor does make the ruling in that case even more egregious, yes. Even if the court only narrowly invalidated the premise of regulating private activity that'd be a net improvement, albeit a much smaller one.

Not only that, there's a fairly clear hint on page 4 that, given a suitable case, the court might have been willing to find against ATF regulations on the manufacture of prohibited firearms or accessories as well.

Would the rest of the drug laws be in question too?

> Would the rest of the drug laws be in question too?

All of the state laws are in the clear.

I don't actually know if the Federal drug laws are justified under the commerce clause.

They are, see Gonzales v. Raich.

https://en.wikipedia.org/wiki/Gonzales_v._Raich

I don't see why not. Gonzales v. Raich held that drug laws were permissible under the Commerce Clause (even in the absence of any legal commerce in those drugs - go figure), but I wouldn't put it past the court to overturn that.

Or, for that matter: where in the Constitution does it say that Congress has the power to regulate the manufacture and use of nuclear weapons?

(To be clear: I think this is an absurd line of reasoning.)

> Or, for that matter: where in the Constitution does it say that Congress has the power to regulate the manufacture and use of nuclear weapons?

Wickard v Filburn was "your transaction intrastate led you to buy less interstate so we can regulate you"; that is a ridiculous ruling. That doesn't mean there should be no narrower rulings to justify specific classes of regulation.

When Morton Downey Jr. was a thing Mad Magazine did a spoof on this. In the cartoon one of the characters said, “I’m opposed to a waiting period for purchases of tanks, missles, and attack helicopters to private citizens but I do favor a 10 day waiting period on sales of nuclear weapons.” Morton then cracks him upside the head and calls him a “candy-ass liberal”.

Privately made hand grenades are back on the menu boys

Only outside city limits.

If the case made it to the supreme court and Wickard v. Filburn was successfully overturned, that'd be a rare bit of positive news from court rulings.

(Further detail elsewhere in the thread: https://news.ycombinator.com/item?id=40950889 .)

Can you elaborate on your view on this? I won’t respond but I am curious what the perspective is on this point of view.

I edited in a link to a comment elsewhere in the thread explaining in more detail.

Once I read it, it didn't actually seem like it. Instead, it seems to be saying since booze regulation isn't intended to fully govern the market and production of booze under the commerce clause, enforcement can't include a prohibition as expansive as banning home distilling under the commerce clause (YMMV I think they're saying this is the case because most of the regulations are for collecting revenue, not for controlling how much booze is in commercial circulation). (With a separate rational for why it's not also included in the taxing enforcement power.)

I kind of take this to mean that home distilling would be allowed under a very invasive tax/inspection regime? As it seems like there's a strong implication that the other aspects of the taxation on spirits would still apply to home distillation.

The linked opinion makes a point of explaining how this case differs frim Wickard v Filburn.

For as crazy as the 5th circut and Supreme Court are, I don't see either of them being crazy enough to take on Wickard v Filburn.

> The linked opinion makes a point of explaining how this case differs frim Wickard v Filburn.

My take is that the district court has to show deference to Wickard... but that doesn't mean that the whole issue can't be teed up to become a challenge to Wickard on appeal.

> For as crazy as the 5th circur and Supreme Court are, I don't see either of them being crazy enough to take on Wickard v Filburn.

They're pretty gosh-darned crazy is all I'm saying here.

I don't understand, Wikipedia was still beyond me. Can you share more about what this would mean?

The constitutionality of most federal laws from the last 80 years will be brought into question.

Essentially, the constitution grants the federal government a limited set of powers. Anything outside of that scope cannot be regulated at the federal level.

Historically, most laws have been written under the authority granted to Congress to regulate interstate commerce, as Wickard v. Filburn ruled that that that authority was to be interperated very broadly.

In practice, if Filburn is overturned, it would probably he replaced with a still broad reading to avoid the absolute chaos that a complete reversal would cause.

Yup. I agree.

Not a decade to soon!

...if true, which I very much doubt.

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