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I'm having difficulty grasping the holding in Wickard as it applies to commerce clause principles. I understand that wheat production, despite being intrastate, was reachable by the commerce clause because under the hypothetical multiplier, the combined aggregation of said conduct would have a substantial effect on interstate commerce. However, agriculture is not considered commerce. So my question is, how was the court able to bypass the fact that agriculture isn't considered commerce? Any help would be greatly appreciated.

I'm a 1L studying for Con Law too... good news is, my rule matches yours.

I think the answer to your question is, "because the Court said so." My understanding is that the Court is simply applying the rule it created in the same case. Wickard removed the exemption of manufacturing, agriculture, etc. granted in E.C. Knight. After Wickard, the Commerce Clause can regulate almost anything. The bar of proving a "substantial effect" on interstate commerce is a pretty low one, and wheat production here certainly meets that threshold, especially when taken in the aggregate.

Why doesn't the "hypothetical multiplier" you mention suffice as reasoning? I have no additional notes beyond yours, but frankly I can't imagine being tested this granularly... (hopefully I'm right).

Doesn’t buying and selling what is grown in agriculture count as commerce?

rhal22 wrote:I'm having difficulty grasping the holding in Wickard as it applies to commerce clause principles. I understand that wheat production, despite being intrastate, was reachable by the commerce clause because under the hypothetical multiplier, the combined aggregation of said conduct would have a substantial effect on interstate commerce. However, agriculture is not considered commerce. So my question is, how was the court able to bypass the fact that agriculture isn't considered commerce? Any help would be greatly appreciated.

My understanding: because the farmer overproduced wheat and used it for his own consumption, he did not purchase wheat he ordinarily would have. Multiplying that conduct across the economy of wheat growers, demand for wheat would drop drastically causing the price to drop. It, therefore, affected commerce.

Thanks for the input, everyone. I agree with the general sentiment here. My rationale was that the regulation of agriculture could be justified as being a regulation for commerce due to the fact that the wheat was being commoditized. That seems to be the general consensus here. Thanks again!

The better question is whether Wickard has survived NFIB v. Sebelius?

ExperssioUnius wrote:The better question is whether Wickard has survived NFIB v. Sebelius?

This. Morrison and Sebelius modified the Wickard rule. This is straining my memory a bit since I took con law 2 semesters ago, but after consulting my outline I believe you can only apply the aggregation principle from Wickard if the activity is economic in nature. Raich defined economic as “the production, distribution, and consumption of commodities."

Raich carried forward Wickard (but basically supplants it, IMO) by saying that Congress can regulate an economic activity when it has a rational basis to believe that that activity falls into a class of activities that together form a national commodity market and, in the aggregate, substantially affect interstate commerce, and the regulation is necessary to make a broader scheme of regulation of that commodity market effective. So there's two steps to it, I think (under Raich). It's not strictly that wheat and marijuana are commodities, it's that Congress enacted a broader regulatory scheme w/r/t the national market of the commodity in both cases. I might not have this exactly right but I do think that both "class of activities" and "broader regulatory scheme of a national commodity market" are components.

Personally I would say that NFIB doesn't change the other cases because it is more limited to its own fact pattern of inactivity. But I could be wrong.