The New Deal and Commerce

In 1935, the Supreme Court decision in Schecter Poultry Corporation v. United States invalidated regulations of the poultry industry according to the nondelegation doctrine and as an invalid use of Congress' power under the Commerce Clause. The unanimous decision rendered unconstitutional the National Industrial Recovery Act, a main component of President Franklin Roosevelt's new deal. Again in 1936, Carter v. Carter Coal Company, the Supreme Court struck down a key element of the New Deal's regulation of the mining industry on the grounds that mining was not "commerce." In the preceding decades, the Court had struck down a laundry list of progressive legislation: minimum wage laws, child labor laws, agricultural relief laws, and virtually every other element of the New Deal legislation that had come before it. After winning re-election in 1936, President Roosevelt proposed the Judicial Procedures Reform Bill of 1937 to allow the President to appoint an additional Justice for each sitting Justice over 70. Given the age of the current justices, that would allow the Supreme Court of up to 15 Justices. Roosevelt claimed that to be intended to lessen the load on the older Justices, rather than an attempt to achieve a majority that would cease to strike his New Deal acts.

Ultimately, there was widespread opposition to the "court packing" plan, and in the end, Roosevelt abandoned it.  However, in what became known as "the switch in time that saved nine," Justice Owen Roberts, shortly after the "court packing" plan was proposed, joined the 5-4 majority opinion in West Coast Hotel Co. v. Parrish (1937). It narrowly upheld a Washington state minimum wage law, abandoning prior jurisprudence, and ended the Lochner era. That essentially marked the beginning of the end of Supreme Court's opposition to the New Deal, which also obviated the "court packing" scheme.

In United States v. Darby Lumber Co. (1941) the Court upheld the Fair Labor Standards Act, which regulated the production of goods shipped across state lines. It stated that the Tenth Amendment is "but a truism" and was not considered to be an independent limitation on congressional power.

In United States v. Wrightwood Dairy Co. (1942), the Court upheld federal price regulation of intrastate milk commerce:

The commerce power is not confined in its exercise to the regulation of commerce among the states. It extends to those activities intrastate which so affect interstate commerce, or the exertion of the power of Congress over it, as to make regulation of them appropriate means to the attainment of a legitimate end, the effective execution of the granted power to regulate interstate commerce.... The power of Congress over interstate commerce is plenary and complete in itself, may be exercised to its utmost extent, and acknowledges no limitations other than are prescribed in the Constitution.... It follows that no form of state activity can constitutionally thwart the regulatory power granted by the commerce to Congress. Hence, the reach of that power extends to those intrastate activities which in a substantial way interfere with or obstruct the exercise of granted power.

In Wickard v. Filburn (1942), the Court upheld the Agricultural Adjustment Act of 1938, which sought to stabilize wide fluctuations in the market price for wheat. The Court found that Congress could apply national quotas to wheat grown on one's own land for one's own consumption because the total of such local production and consumption could potentially be sufficiently large as to affect the overall national goal of stabilizing prices. The Court cited its recent Wrightwood decision and decided, "Whether the subject of the regulation in question was 'production,' 'consumption,' or 'marketing' is, therefore, not material for purposes of deciding the question of federal power before us." The Court reiterated Chief Justice Marshall's decision in Gibbons: "He made emphatic the embracing and penetrating nature of this power by warning that effective restraints on its exercise must proceed from political rather than from judicial, processes." The Court also stated: "The conflicts of economic interest between the regulated and those who advantage of it are wisely left under our system to resolution by Congress under its more flexible and responsible legislative process. Such conflicts rarely lend themselves to judicial determination. And with the wisdom, workability, or fairness, of the plan of regulation, we have nothing to do."

Thereafter, the Court began to defer to the Congress on the theory that determining whether legislation affected commerce appropriately was a decision that was political and legislative, not judicial. That overall change in the Court's jurisprudence, beginning with Parrish, is often referred to as the Constitutional Revolution of 1937, in which the Court shifted from exercising judicial review of legislative acts to protect economic rights to a paradigm that focused most strongly on protecting civil liberties.

It was not until the United States v. Lopez (1995) decision, after nearly 60 years of leaving any restraint on the use of Commerce Clause to political means, that the court again ruled that a regulation enacted under the Commerce Clause was unconstitutional.

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