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Democracy" at 11:30 in the morning of May 19th, which was a busy hour in one of the busiest of seasons. If this discourse intended reference to this legislation at all, it was of course a public Act, whose terms were readily available, and the speech did not purport to be an exposition of its provisions.

To hold that a speech by a Cabinet officer, which failed to meet judicial ideals of clarity, precision, and exhaustiveness, may defeat a policy embodied in an Act of Congress, would invest communication between administrators and the people with perils heretofore unsuspected. Moreover, we should have to conclude that such an officer is able to do by accident what he has no power to do by design. Appellee's complaint, in so far as it is based on this speech, is frivolous, and the injunction, in so far as it rests on this ground, is unwarranted. United States v. Rock Royal Co-operative, 307 U. S. 533.

II

12

It is urged that under the Commerce Clause of the Constitution, Article I, § 8, clause 3, Congress does not possess the power it has in this instance sought to exercise. The question would merit little consideration since our decision in United States v. Darby, 312 U. S. 100,12 sustaining the federal power to regulate production of goods for commerce, except for the fact that this Act extends federal regulation to production not intended in any part for commerce but wholly for consumption on the farm. The Act includes a definition of "market" and its derivatives, so that as related to wheat, in addition to its conventional meaning, it also means to dispose of "by feeding (in any

12 See also, Gray v. Powell, 314 U. S. 402; United States v. Wrightwood Dairy Co., 315 U. S. 110; Cloverleaf Co. v. Patterson, 315 U. S. 148; Kirschbaum Co. v. Walling, 316 U. S. 517; Overnight Transportation Co. v. Missel, 316 U. S. 572.

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18

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form) to poultry or livestock which, or the products of which, are sold, bartered, or exchanged, or to be so disposed of." 1 Hence, marketing quotas not only embrace all that may be sold without penalty but also what may be consumed on the premises. Wheat produced on excess acreage is designated as "available for marketing" as so defined, and the penalty is imposed thereon.1 Penalties do not depend upon whether any part of the wheat, either within or without the quota, is sold or intended to be sold. The sum of this is that the Federal Government fixes a quota including all that the farmer may harvest for sale or for his own farm needs, and declares that wheat produced on excess acreage may neither be disposed of nor used except upon payment of the penalty, or except it is stored as required by the Act or delivered to the Secretary of Agriculture.

Appellee says that this is a regulation of production and consumption of wheat. Such activities are, he urges, beyond the reach of Congressional power under the Commerce Clause, since they are local in character, and their effects upon interstate commerce are at most "indirect." In answer the Government argues that the statute regulates neither production nor consumption, but only marketing; and, in the alternative, that if the Act does go beyond the regulation of marketing it is sustainable as a "necessary and proper" 15 implementation of the power of Congress over interstate commerce.

The Government's concern lest the Act be held to be a regulation of production or consumption, rather than of marketing, is attributable to a few dicta and decisions of this Court which might be understood to lay it down that activities such as "production," "manufacturing," and

13 54 Stat. 727, 7 U. S. C. § 1301 (b) (6) (A), (B).

14

§§ 1, 2, of the amendment of May 26, 1941; Wheat-507, § 728.251, 6 Federal Register 2695, 2701.

15 Constitution, Article I, § 8, cl. 18.

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"mining" are strictly "local" and, except in special circumstances which are not present here, cannot be regulated under the commerce power because their effects upon interstate commerce are, as matter of law, only "indirect." 16 Even today, when this power has been held to have great latitude, there is no decision of this Court that such activities may be regulated where no part of the product is intended for interstate commerce or intermingled with the subjects thereof. We believe that a review of the course of decision under the Commerce Clause will make plain, however, that questions of the power of Congress are not to be decided by reference to any formula which would give controlling force to nomenclature such as "production" and "indirect" and foreclose consideration of the actual effects of the activity in question upon interstate commerce.

At the beginning Chief Justice Marshall described the federal commerce power with a breadth never yet exceeded. Gibbons v. Ogden, 9 Wheat. 1, 194-195. 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. Id. at 197.

16 After discussing and affirming the cases stating that such activities were "local," and could be regulated under the Commerce Clause only if by virtue of special circumstances their effects upon interstate commerce were "direct," the opinion of the Court in Carter v. Carter Coal Co., 298 U. S. 238, 308, stated that: "The distinction between a direct and an indirect effect turns, not upon the magnitude of either the cause or the effect, but entirely upon the manner in which the effect has been brought about. . . . the matter of degree has no bearing upon the question here, since that question is not-What is the extent of the local activity or condition, or the extent of the effect produced upon interstate commerce? but-What is the relation between the activity or condition and the effect?" See also, cases cited infra, notes 17 and 21.

For nearly a century, however, decisions of this Court under the Commerce Clause dealt rarely with questions of what Congress might do in the exercise of its granted power under the Clause, and almost entirely with the permissibility of state activity which it was claimed discriminated against or burdened interstate commerce. During this period there was perhaps little occasion for the affirmative exercise of the commerce power, and the influence of the Clause on American life and law was a negative one, resulting almost wholly from its operation as a restraint upon the powers of the states. In discussion and decision the point of reference, instead of being what was "necessary and proper" to the exercise by Congress of its granted power, was often some concept of sovereignty thought to be implicit in the status of statehood. Certain activities such as "production," "manufacturing,” and “mining" were occasionally said to be within the province of state governments and beyond the power of Congress under the Commerce Clause.17

It was not until 1887, with the enactment of the Interstate Commerce Act, 18 that the interstate commerce power began to exert positive influence in American law and life. This first important federal resort to the commerce power was followed in 1890 by the Sherman Anti-Trust Act and, thereafter, mainly after 1903, by many others. These statutes ushered in new phases of adjudication, which required the Court to approach the interpretation of the Commerce Clause in the light of an actual exercise by Congress of its power thereunder.

19

When it first dealt with this new legislation, the Court adhered to its earlier pronouncements, and allowed but

17 Veazie v. Moor, 14 How. 568, 573-574; Kidd v. Pearson, 128 U. S. 1, 20-22.

18 24 Stat. 379, 49 U. S. C. § 1, et seq. 19 26 Stat. 209, 15 U. S. C. § 1, et seq.

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little scope to the power of Congress. United States v. Knight Co., 156 U. S. 1.20 These earlier pronouncements also played an important part in several of the five cases in which this Court later held that Acts of Congress under the Commerce Clause were in excess of its power.21

Even while important opinions in this line of restrictive authority were being written, however, other cases called forth broader interpretations of the Commerce Clause destined to supersede the earlier ones, and to bring about a return to the principles first enunciated by Chief Justice Marshall in Gibbons v. Ogden, supra.

Not long after the decision of United States v. Knight Co., supra, Mr. Justice Holmes, in sustaining the exercise of national power over intrastate activity, stated for the Court that "commerce among the States is not a technical legal conception, but a practical one, drawn from the course of business." Swift & Co. v. United States, 196 U. S. 375, 398. It was soon demonstrated that the effects of many kinds of intrastate activity upon interstate commerce were such as to make them a proper subject of federal regulation.22 In some cases sustaining the exercise of federal power over intrastate matters the term "direct"

20 See also, Hopkins v. United States, 171 U. S. 578; Anderson v. United States, 171 U. S. 604.

21 Employers' Liability Cases, 207 U. S. 463; Hammer v. Dagenhart, 247 U. S. 251; Railroad Retirement Board v. Alton R. Co., 295 U. S. 330; Schechter Corp. v. United States, 295 U. S. 495; Carter v. Carter Coal Co., 298 U. S. 238; cf. United States v. Dewitt, 9 Wall. 41; TradeMark Cases, 100 U. S. 82; Hill v. Wallace, 259 U. S. 44; Heisler v. Thomas Colliery Co, 260 U. S. 245, 259-260; Oliver Iron Co. v. Lord, 262 U. S. 172, 178-179; Utah Power & Light Co. v. Pfost, 286 U. S. 165.

22 Northern Securities Co. v. United States, 193 U. S. 197; Swift & Co. v. United States, supra; Loewe v. Lawlor, 208 U. S. 274; Baltimore & Ohio R. Co. v. Interstate Commerce Commission, 221 U. S. 612; Southern Ry. Co. v. United States, 222 U. S. 20; Second Employers' Liability Cases, 223 U. S. 1; United States v. Patten, 226 U.S. 525.