Republicans Will Have To Rely on New Deal–Era Court Precedents If They Want a Federal Abortion Ban

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Law & Government

The Supreme Court said in 1942 that local activity, not just interstate activity, was subject to congressional regulation.

Damon Root |

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(Illustration: Pavlo Stavnichuk/iStock)

The U.S. Supreme Court’s ruling in Dobbs v. Jackson Women’s Health Organization (2022), which eliminated the constitutional right to abortion, has raised the possibility of a future Republican-controlled Congress seeking to ban abortion nationwide. If that happens, the resulting courtroom battles will likely center on a New Deal–era precedent that vastly expanded the scope of congressional power.

Congress has the constitutional authority “to regulate Commerce….among the several States.” This power, as Alexander Hamilton explained in Federalist No. 17, was originally understood to be a limited one. The Commerce Clause did not extend federal authority to “the supervision of agriculture and of other concerns of a similar nature, all those things, in short,” Hamilton wrote, “which are proper to be provided for by local legislation.” While Congress was permitted to regulate economic activity that crossed state lines, it was not empowered to control intrastate economic undertakings.

That changed in the 1940s as a result of the federal government sanctioning an Ohio farmer named Roscoe Filburn for growing twice the amount of wheat that he was allowed to grow under the terms of the Agricultural Adjustment Act of 1938. The New Dealers in Congress specifically invoked their power to regulate interstate commerce when enacting the statute.

Filburn argued that his extra wheat was not subject to federal regulation because it never once entered the stream of interstate commerce. His extra wheat never even left his own farm—it was used to feed his livestock and make flour for his family’s kitchen. It was nowhere near “Commerce….among the several States.”

The Supreme Court disagreed and issued one of the most significant rulings of the New Deal era. Filburn’s extra wheat may not have crossed state lines, the Court said in Wickard v. Filburn (1942), but entirely local activity of the sort was still subject to congressional regulation if it had a “substantial economic effect” on the national market. It was a huge political win for the agenda of President Franklin Roosevelt and a significant boost to Congress’ overall regulatory authority.

Congressional power was boosted by the Court again in Gonzales v. Raich (2005), which extended Wickard while upholding the federal ban on marijuana, even as applied to medical marijuana that was both legal to use under state law and which was cultivated and consumed entirely within the confines of a single state.

Modern liberals have generally cheered for the broad vision of congressional power endorsed by Wickard and Raich. They may feel somewhat differently about it when congressional Republicans invoke those same precedents to support a federal abortion ban.

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