ArtI.S8.C3.1.8.5 Stockyards and Grain Futures Acts

Article I, Section 8, Clause 3:

[The Congress shall have Power . . .] To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes; . . .

In 1921, Congress passed the Packers and Stockyards Act, 1 whereby the business of commission men and livestock dealers in the chief stockyards of the country was brought under national supervision, and in the year following it passed the Grain Futures Act, 2 whereby exchanges dealing in grain futures were subjected to control. The decisions of the Court sustaining these measures both built directly upon the Swift case.

In Stafford v. Wallace, 3 which involved the former act, Chief Justice Taft, speaking for the Court, said: The object to be secured by the act is the free and unburdened flow of livestock from the ranges and farms of the West and Southwest through the great stockyards and slaughtering centers on the borders of that region, and thence in the form of meat products to the consuming cities of the country in the Middle West and East, or, still as livestock, to the feeding places and fattening farms in the Middle West or East for further preparation for the market.4 The stockyards, therefore, were not a place of rest or final destination. They were but a throat through which the current flows, and the sales there were not merely local transactions. . . . [T]hey do not stop the flow . . . but, on the contrary, [are] indispensable to its continuity.5

In Chicago Board of Trade v. Olsen, 6 involving the Grain Futures Act, the same course of reasoning was repeated. Speaking of Swift, Chief Justice Taft remarked: That case was a milestone in the interpretation of the commerce clause of the Constitution. It recognized the great changes and development in the business of this vast country and drew again the dividing line between interstate and intrastate commerce where the Constitution intended it to be. It refused to permit local incidents of a great interstate movement, which taken alone are intrastate, to characterize the movement as such.7

Of special significance, however, is the part of the opinion devoted to showing the relation between future sales and cash sales, and hence the effect of the former upon the interstate grain trade. The test, said the Chief Justice, was furnished by the question of price. The question of price dominates trade between the States. Sales of an article which affect the country-wide price of the article directly affect the country-wide commerce in it.8 Thus, a practice that demonstrably affects prices would also affect interstate trade directly, and so, even though local in itself, would fall within the regulatory power of Congress. In the following passage, indeed, Chief Justice Taft whittled down, in both cases, the direct-indirect formula to the vanishing point: Whatever amounts to more or less constant practice, and threatens to obstruct or unduly to burden the freedom of interstate commerce is within the regulatory power of Congress under the commerce clause, and it is primarily for Congress to consider and decide the fact of the danger to meet it. This court will certainly not substitute its judgment for that of Congress in such a matter unless the relation of the subject to interstate commerce and its effect upon it are clearly nonexistent.9

It was in reliance on the doctrine of these cases that Congress first set to work to combat the Depression in 1933 and the years immediately following. But, in fact, much of its legislation at this time marked a wide advance upon the measures just passed in review. They did not stop with regulating traffic among the states and the instrumentalities thereof; they also attempted to govern production and industrial relations in the field of production. Confronted with this expansive exercise of Congress’s power, the Court again deemed itself called upon to define a limit to the commerce power that would save to the states their historical sphere, and especially their customary monopoly of legislative power in relation to industry and labor management.


  1.  Jump to essay-142 Stat. 159, 7 U.S.C. §§ 171-183, 191-195, 201-203.
  2.  Jump to essay-242 Stat. 998 (1922), 7 U.S.C. §§ 1-9, 10a–17.
  3.  Jump to essay-3258 U.S. 495 (1922).
  4.  Jump to essay-4258 U.S. at 514.
  5.  Jump to essay-5258 U.S. at 515-16. See also Lemke v. Farmers Grain Co., 258 U.S. 50 (1922); Minnesota v. Blasius, 290 U.S. 1 (1933).
  6.  Jump to essay-6262 U.S. 1 (1923).
  7.  Jump to essay-7262 U.S. at 35.
  8.  Jump to essay-8262 U.S. at 40.
  9.  Jump to essay-9262 U.S. at 37, quoting Stafford v. Wallace, 258 U.S. 495, 521 (1922).