The Constitution delegates to Congress the power to regulate commerce “among the several States.” What makes commerce not just commerce interstate? That’s part of the question the Supreme Court was asked to answer in the case Flowers v. Brock.
The Ugly History of the Commerce Clause
The Commerce Clause of the Constitution is pretty straightforward. Congress has the power to:
To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;
U.S. Constitution, Article I, Section 8, Clause 3
The problem is people don’t always agree with what commerce among the several states, otherwise known as interstate commerce, actually is. Black’s Law Dictionary defines “commerce” as:
Intercourse by way of trade and traffic between different peoples or states and the citizens or inhabitants thereof, …
Commerce – Black’s Law Dictionary
Seems pretty simple to me. Commerce is trade between peoples, within a state or citizens of other states. There is a bit more to it though:
… including not only the purchase, sale, and exchange of commodities, but also the instrumentalities and agencies by which it is promoted and the means and appliances by which it is carried on, and the transportation of persons as well as of goods, both by land and by sea.
Commerce – Black’s Law Dictionary
Commerce is not just the sale of goods, but the means by which that sale takes place. While that may seem simple to us, attorneys and judges have a way of making simple things complicated. Take the 1942 case of Wickard v. Filburn.
The appellee for many years past has owned and operated a small farm in Montgomery County, Ohio, maintaining a herd of dairy cattle, selling milk, raising poultry, and selling poultry and eggs. It has been his practice to raise a small acreage of winter wheat, sown in the Fall and harvested in the following July, to sell a portion of the crop; to feed part to poultry and livestock on the farm, some of which is sold; to use some in making flour for home consumption, and to keep the rest for the following seeding. The intended disposition of the crop here involved has not been expressly stated.
Wickard v. Filburn, 317 U.S. 111 (1942)
Here we have Mr. Wickard, a small Ohio farmer, selling milk, poultry, and eggs. He also raised some wheat, both to feed himself and his family and to sell a portion of it. Seems like no big deal. Except this is 1942; not only has the country just joined World War II, but is also in the middle of F.D.R.’s unconstitutional attempt to regulate the economy from D.C. Which means the federal government gave Mr. Wickard a quota for the amount of wheat he was “allowed” to grow.
In July of 1940, pursuant to the Agricultural Adjustment Act of 1938, as then amended, there were established for the appellee’s 1941 crop a wheat acreage allotment of 11.1 acres and a normal yield of 20.1 bushels of wheat an acre. He was given notice of such allotment in July of 1940, before the Fall planting of his 1941 crop of wheat, and again in July of 1941, before it was harvested.
Wickard v. Filburn, 317 U.S. 111 (1942)
Put aside for the moment the violation of the Fifth Amendment’s Due Process Clause. Ignore the Marxist idea of government regulation of the economy. Forget that this was the exact form of government overreach that led the colonies to declare independence from an overbearing government. It appears Mr. Wickard did not ignore the Constitution, but decided to exercise his liberty, protected by the Fifth Amendment, and did just what he wanted.
He sowed, however, 23 acres, and harvested from his 11.9 acres of excess acreage 239 bushels, which, under the terms of the Act as amended on May 26, 1941, constituted farm marketing excess, subject to a penalty of 49 cents a bushel, or $117.11 in all. The appellee has not paid the penalty, and he has not postponed or avoided it by storing the excess under regulations of the Secretary of Agriculture, or by delivering it up to the Secretary. The Committee, therefore, refused him a marketing card, which was, under the terms of Regulations promulgated by the Secretary, necessary to protect a buyer from liability to the penalty and upon its protecting lien.
Wickard v. Filburn, 317 U.S. 111 (1942)
Imagine that in America, needing permission from a bureaucrat to grow your own food without being penalized? This led to the lawsuit, which eventually made it to the Supreme Court, which found.
5. The power to regulate interstate commerce includes the power to regulate the prices at which commodities in that commerce are dealt in and practices affecting such prices.
Wickard v. Filburn, 317 U.S. 111 (1942)
An argument can be made that the power to regulate includes the power to set prices, but not control production, especially production that does not go through interstate commerce.
6. A factor of such volume and variability as wheat grown for home consumption would have a substantial influence on price conditions on the wheat market, both because such wheat, with rising prices, may flow into the market and check price increases and, because, though never marketed, it supplies the need of the grower which would otherwise be satisfied by his purchases in the open market.
Wickard v. Filburn, 317 U.S. 111 (1942)
This is another example of the Supreme Court just making things up, in general to support the made up powers of the very government they are a part of. This lie by the court, that Congress can regulate anything that might impact interstate commerce, has been the basis of the federal government’s attempt to regulate every part of our lives.
What Makes Commerce Interstate
Just when does commerce become interstate commerce? More importantly, when can the federal government meddle in a person’s commerce?
The Federal Arbitration Act (FAA) requires courts to enforce many private arbitration agreements, but it also provides that “nothing” in the law shall be used to compel arbitration in disputes involving the “contracts of employment” of any class of workers “engaged in . . . interstate commerce.” 9 U. S. C. §1. This case poses the question whether someone can qualify as a worker under the §1 exemption if he never crosses state lines and never interacts with vehicles that do.
Flowers v. Brock
Many employment contracts include an arbitration clause, which requires most issues between employer and employee be settled by binding arbitration rather than a lawsuit. Congress told the courts through the Federal Arbitration Act, that they must enforce those arbitration clauses. (Article 9 U. S. C. §1 defines, for the purpose of this law, what interstate commerce is.) Angelo Brock held a franchisee that transports goods produced by Flowers Foods, Inc. in the Denver area.
In 2022, Brock sued Flowers in federal district court alleging that the company had underpaid him and other distributors in violation of various federal and state laws. Flowers moved to compel arbitration, arguing that the FAA generally requires courts to stay or dismiss cases when the parties have agreed to resolve their disputes by arbitration and that Brock had signed a distribution agreement promising to arbitrate any disagreement. The district court denied Flowers’s motion, and the Tenth Circuit affirmed. Resting its decision on 9 U. S. C. §1, the Tenth Circuit reasoned that Brock belonged to a class of workers engaged in interstate commerce and thus the court lacked authority to compel arbitration.
Flowers v. Brock
Mr. Brock only transported goods within the State of Colorado, so how does this qualify as interstate commerce?
(a) The statutory text does not support a rule requiring workers to cross state lines or interact with vehicles that do. When the FAA was enacted, to “engage” meant to “take part in” something or to be “employ[ed]” or “involve[d]” in that thing. Black’s Law Dictionary 661. And “interstate commerce” meant “[t]raffic,” “intercourse,” or “the transportation of persons or property between or among the several states . . . or from or between points in one state and points in another state.” … Nothing in those terms requires an individual to cross state lines or interact with a vehicle that does.
Flowers v. Brock
OK, according to SCOTUS Mr. Brock did take part in interstate commerce, even if his portion was solely within a state. In this case, Mr. Brock was part of a transportation chain that included interstate transportation, i.e. interstate commerce.
Conclusion
Remember, this case isn’t specifically about interstate commerce, but whether or not Mr. Brock was part of a group exempt from the arbitration requirements of the Federal Arbitration Act.
Held: A worker who transports goods on an intrastate leg of an interstate journey can qualify for §1’s exemption without crossing state lines or interacting with vehicles that do.
Flowers v. Brock
For me, the issue is not the question of arbitration, but of the definition of interstate commerce. Congress has used the decision in Wickard v. Filburn, which helped twist the idea of interstate commerce for over 80 years, not only to implement their unconstitutional power grab, but a literal reign of terror over the American people. Just look at the laws used to regulate car fuel efficiency, what appliances you can use in your home, even the food and pharmaceutical, and they’re all based on the false claim that Congress has the power because it could impact interstate commerce. Based on that, I fully expected this to be another dumpster fire courtesy of SCOTUS. I argue that Congress had no legal authority to pass the Federal Arbitration Act because the Constitution does not delegate to the United States the power to regulate contract or employment. That said, the Supreme Court actually made reasonable argument about whether or not Mr. Brock actually participated in interstate commerce.
Now if only the same Supreme Court would recognize that the FAA is itself unconstitutional, null, and void. Then we’d have a decision truly worth praising.
