THE NEW DEAL AND A FEDERAL ABORTION BAN.

• Author: Root, Damon
• Position: LAW

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...