Pubdate: Sun, 20 May 2012
Source: Ukiah Daily Journal, The (CA)
Copyright: 2012 The Ukiah Daily Journal
Contact: http://www.ukiahdailyjournal.com/feedback
Website: http://www.ukiahdailyjournal.com/
Details: http://www.mapinc.org/media/581
Author: Frank Zotter
Note: Frank Zotter is a Ukiah attorney.

JUDICIAL FOLLIES - AGRICULTURAL ADJUSTMENTS

Like many legal disputes, it started out over something small. In
July, 1940, an Ohio wheat farmer named Roscoe Filburn was planning for
the fall planting of his wheat crop. But he ran into some of the new
government regulations on farming.

During the early years of the Great Depression, the value of farm
commodities had plummeted. Farmers were producing plenty of food, but
with the general slowdown in economic activity, they could not get
enough money for what they produced.

So, when President Franklin Roosevelt came to office, one of the ways
his administration tried to prop up the value of farming products was
(ironically) to restrict what farmers could produce. The Agricultural
Adjustment Act of 1938 established "allotments" for various farm
commodities, including wheat. If the supply of these products was
limited, in theory the price in the overall market would rise.

Filburn was notified by the Agriculture Department that his farm was
allotted 11.1 acres to plant. Filburn, however, planted 23 acres,
giving him a "marketing excess" of 239 bushels of wheat, which the
government then informed him was subject to a penalty of $117.11.
Filburn took the Secretary of Agriculture to court, and initially the
lower court invalidated the penalty on his excess wheat production.

But the government appealed, and in 1942 Filburn's $117.11 penalty
landed in the U.S. Supreme Court. The question was whether the
Commerce Clause of the U.S. Constitution, which allowed Congress to
regulate commerce "among the several states" allowed Congress to pass
a law telling a small farmer like Filburn how much wheat he could produce.

Filburn argued that it could not, pointing out that his family used
the excess wheat, for its own food and feed for its animals -- thus
making it entirely a "local" activity. But by 1942, President
Roosevelt had appointed a majority of the justices on the court, and
they were generally deferential Congressional legislation intended to
fight the Depression.

The court issued a unanimous decision in favor of the Secretary of
Agriculture, written by Justice Robert Jackson -- conveniently,
Roosevelt's former Attorney General. Jackson concluded that the issue
was not whether the produce was used locally -- it might well all have
been used on Filburn's own farm. But if Filburn used the grain that he
produced himself, in excess of his "allotment," then he wouldn't be
buying wheat elsewhere. Multiply that by thousands of small farmers,
and it can have a significant impact on the national price of wheat.
Thus, the Commerce Clause allowed Congress to regulate Filburn's wheat
even if not a grain of it ever crossed a state line.

So far as we know, Filburn never paid the $117.11.

And then . . . flash forward 60 years or so. A woman named Angel Raich
claimed that she had a variety of medical conditions that had not
responded to conventional medical treatment, including significant
pain. Medical marijuana, according to her physician, was the one
treatment that allowed her to function daily. Raich relied on
California's Proposition 215, which legalized medical marijuana -- but
only under state law. Raich was afraid of arrest and prosecution by
federal authorities, because federal law did not recognize medical
marijuana use, even for serious medical conditions.

So she and several others filed a pre-emptive lawsuit, asking the
federal courts to declare that Congress didn't have the authority
under the Commerce Clause to regulate marijuana she grew on her own
property and consumed personally. And once again, her lawsuit reached
U.S. Supreme Court.

The justices in the majority were sympathetic to her plight, but
decided that the federal government was within its power to regulate
marijuana even if it never would cross a state line. And the case that
the government relied on most heavily in making this argument? Roscoe
Filburn's case against the Agriculture Department.

Of course, one . . . small difference between Filburn's case and
Raich's is that the "agricultural commodity" the government was
"regulating" in Raich's case was illegal. In fact, it led to an
amusing exchange between Justice Anthony Kennedy and Raich's lawyer,
when Kennedy asked what the impact of a ruling in favor of Ms. Raich
would have on the street price of marijuana. Her attorney responded,
"Well, that's hard to say, but I suspect it would go down."

So: Congress is entitled to regulate a commodity -- that under this
same federal law is illegal to possess or to sell -- on the basis of
that commodity's interstate commercial activity. And one way the
Supreme Court determines that that this is "commercial" is by
considering the street price of that illegal commodity.

And thus are great matters decided in the marble temple of the Supreme
Court. 
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MAP posted-by: Jo-D