That surprises me, coming from an enemy of Wickard. It may not be the first instance, but I think the Shreveport Rate Case was the major forerunner of Wickard’s expansion of the commerce clause to include things that affect interstate commerce, rather than interstate commerce itself. Now, in this case what was affecting interstate commerce was itself commerce, but soon it wouldn’t have to be commerce at all.
Let me see if I can break down the feds’ case. This was in the progressive era, when through fear of Big Business and the illusion that the more complicated and closer together society becomes the more laws we need. Born out of the crucible of leftist reformers, greedy businessmen themselves, and a misinterpretation of economic equilibrium theory was what high school history textbooks call trustbusting. One trust squarely in the crosshairs was Big Railroad, partly because it most obviously resembled the Robber Barons of old, with its supposedly unilateral power to choke off or open traffic to its own and no one else’s benefit.
The government never could nor never had to prove price discrimination in rates for different loads and on different lines was economically unjustified. Whether something was “in restraint of trade” was pro-forma and could easily apply to an action that lowered prices for consumers and caused traffic to boom. Not that you don’t know all this. I’m writing it for my own edification.
Anyway, here was the government’s interest: it wished to control rates on interstate lines. Left to be proved is whether price control constitutes “regulation” as originally conceived. But nevermind. It is interstate, it is commerce, and however economically wrongheaded it is Constitutional. Hold on! Once trains have crossed state borders on the same trip they can be on lines that run entirely within a single state. So Big Railroad can still offer “predatory pricing” and discriminatory rates for portions of an interstate trip.
Doesn’t this run afoul of the feds’ legitimate power to regulate interstate commerce? No. It interferes with the feds’ wishes of controlling rates on trips from state to state, but not its legitimate powers. SCOTUS held regulation of intrastate rates to be necessary for control of interstate rates, and so far so good. But it forgot about the proper part of “necessary and proper.” It is improper for the feds to regulate intrastate commerce because the Constitution does not delegate such power. It’s irrelevant that intrastate rates affect interstate rates. Commerce that affects interstate commerce id not itself interstate commerce, and as such is not regulstable.
Much like how planting wheat for your own consumption which if everyone did it would affect interstate commerce is not itself interstate commerce. But that’s another case.
Wickard cited Shreveport as precendent, but IMHO, they turned it upside down.
The Shreveport decision states :
by reason of its control over the interstate carrier in all matters having such a close and substantial relation to interstate commerce that it is necessary or appropriate to exercise the control for the effective government of that commerce.
In other words, what is relevant is that they are registered carriers of interstate commerce. Whether there was any incidental effect on intrastate commerce was irrelevant.
In Wickard, they turned that application upside down. Whether Roscoe Filburn was a registered carrier of interstate commerce became irrelevant, that there had been some effect on intrastate commerce was presented as the relevant effect of the decision.
What was declare to be irrelevant in one case was cited a relevant precedent in another. What was explicitly declared to be the relevant issue in the first case was completely ignored in the second.