Wickard vs. Filburn: Our fate decided

Discussion in 'Freedom and Liberty' started by tulianr, Mar 21, 2012.

  1. tulianr

    tulianr Don Quixote de la Monkey

    Apparently, we don't need new executive orders for the Federal Government to dictate what we do on our own property. This was decided in 1942.


    WASHINGTON — If the Obama administration persuades the Supreme Court to uphold its health care overhaul law, it will be in large part thanks to a 70-year-old precedent involving an Ohio farmer named Roscoe C. Filburn.

    Mr. Filburn sued to overturn a 1938 federal law that told him how much wheat he could grow on his family farm and made him pay a penalty for every extra bushel.
    The 1942 decision against him, Wickard v. Filburn, is the basis for the Supreme Court’s modern understanding of the scope of federal power. It is the contested ground on which the health care case has been fought in the lower courts and in the parties’ briefs. And it is likely to be crucial to the votes of Justices Anthony M. Kennedy and Antonin Scalia, who are widely seen as open to persuasion by either side.
    “Wickard has become so foundational for generations of lawyers that any plausible understanding of the commerce power must come to terms with it,” said Bradley W. Joondeph, a law professor at Santa Clara University.
    Both supporters and opponents of the health care law say the decision helps their side, and for three days starting next Monday, it will be at the center of the arguments before the Supreme Court about the law’s constitutionality.
    To hear the Obama administration tell it, the Filburn decision illustrates just how much leeway the federal government has under the Constitution’s commerce clause to regulate the choices individuals make in matters affecting the national economy. If the government can make farmers choose between growing crops on their own land and paying a penalty, the administration’s lawyers have said, it can surely tell people that they must obtain health insurance or pay a penalty.
    Opponents of the law draw a different lesson from Mr. Filburn’s case. They say it set the outer limit of federal power, one the health care law exceeds. It is one thing to encourage farmers to buy wheat by punishing them for growing their own, the argument goes. It is another to require people to buy insurance or face a penalty, as the health care law does.
    “There’s a difference between being given an incentive and compulsion,” said Michael A. Carvin, a lawyer for the National Federation of Independent Business and several individuals challenging the law.
    Mr. Filburn argued, as do opponents of the health care overhaul, that he was challenging a law that was not authorized by the Constitution, which allows Congress to regulate commerce “among the several states.” A decision against him, Mr. Filburn said, would move the nation toward a centralized government and “nullifications of all constitutional limitations.”
    The Supreme Court’s ruling against him was unanimous.
    “Even if appellee’s activity be local,” Justice Robert H. Jackson wrote, referring to Mr. Filburn’s farming, “and though it may not be regarded as commerce, it may still, whatever its nature, be reached by Congress if it exerts a substantial economic effect on interstate commerce.”
    The Obama administration says the decisions of millions of people to go without health insurance have a similarly significant effect on the national economy by raising other people’s insurance rates and forcing hospitals to pay for the emergency care of those who cannot afford it.
    At the time, the reaction to the Filburn decision emphasized how much power it had granted the federal government.
    “If the farmer who grows feed for consumption on his own farm competes with commerce, would not the housewife who makes herself a dress do so equally?” an editorial in The New York Times asked. “The net of the ruling, in short, seems to be that Congress can regulate every form of economic activity if it so decides.”
    The editorial, like much commentary on the case, seemed to suppose that Mr. Filburn was a subsistence farmer. But in fact he sold milk and eggs to some 75 customers a day, and the wheat he fed to his livestock entered the stream of commerce in that sense, according to a history of the case by Jim Chen, the dean of the law school at the University of Louisville.
    In the health care case, the administration has insisted that the overhaul law is a modest assertion of federal power in comparison to the law Mr. Filburn challenged. “The constitutional foundation for Congress’s action is considerably stronger” for the health care law than for the law that the Supreme Court endorsed in 1942, the administration said in a recent brief. The health care law, the brief said, merely “regulates the way in which the uninsured finance what they will consume in the market for health care services (in which they participate).”
    Opponents of the law take the opposite view, using an analogy. It is true that the federal government may “regulate bootleggers because of their aggregate harm to the interstate liquor market,” Mr. Carvin wrote in a recent brief. But the government “may not conscript teetotalers merely because conditions in the liquor market would be improved if more people imbibed.”
    “Yet the uninsured regulated by the mandate,” the brief went on, “are the teetotalers, not the bootleggers, of the health insurance market.”

    For more than 50 years after ruling against Mr. Filburn, the Supreme Court did not strike down any federal laws on commerce clause grounds. But in a pair of 5-to-4 decisions, in 1995 and 2000, the court invalidated two laws, saying the activities that Congress had sought to address — guns near schools and violence against women — were local and noncommercial and thus beyond its power in regulating interstate commerce.
    The decisions were part of a renewed interest in federalism associated with Chief Justice William H. Rehnquist, who died in 2005, and Justice Sandra Day O’Connor, who retired in 2006.
    Those two justices were still on the court in 2005 when it issued its last major commerce clause decision, Gonzales v. Raich. That decision was 6 to 3 in favor of upholding a federal law regulating home-grown medicinal marijuana.
    Chief Justice Rehnquist and Justice O’Connor dissented, as well as Justice Clarence Thomas. But Justices Scalia and Kennedy, who had voted to strike down the laws at issue in the 1995 and 2000 cases, were in the majority.
    “The similarities between this case and Wickard are striking,” Justice John Paul Stevens wrote for five members of the court, including Justice Kennedy. “Here, too, Congress had a rational basis for concluding that leaving home-consumed marijuana outside federal control would similarly affect price and market conditions.”
    Justice Scalia wrote a separate concurrence, also citing Wickard v. Filburn.
    “Congress may regulate even noneconomic local activity if that regulation is a necessary part of a more general regulation of interstate commerce,” he wrote, in a passage that the Obama administration quoted prominently in a recent brief in the health care case.
    Supporters of the health care law say the Raich decision shows that even completely local and noncommercial conduct may be addressed by the federal government as part of comprehensive economic regulation. Opponents counter that marijuana, like wheat, is a tangible commodity that is bought and sold, while a lack of insurance is not an economic activity.
    The administration is probably assured of the votes of the court’s four more liberal members, and it needs one more to win the case. How Justices Kennedy and Scalia think about wheat, marijuana, health insurance and Roscoe Filburn may make all the difference.
  2. Seawolf1090

    Seawolf1090 Retired Curmudgeonly IT Monkey Founding Member

    So basically, when "Doctor obama" tells us we must 'take our medicine' he's reaching for a whopping huge suppository.......

  3. chelloveck

    chelloveck Diabolus Causidicus

    Whether friend or enema, the outcome is usually much the same. : S
  4. UGRev

    UGRev Get on with it!

    Sooo.. An individual produces food which is shipped across state lines and the fed says what he can and cannot grow.

    How does that equate with me, you or any other individual who is not producing anything that is transported across state lines and the gov having the right to tell us we have to buy health care?

    I don't see the argument here.

    Farmer grows / ships food. Gov says you can plant xyz.
    I do not grow / ship anything. Gov gets to kiss my mother ****ing ass. <= This one..
  5. Seawolf1090

    Seawolf1090 Retired Curmudgeonly IT Monkey Founding Member

    As I read the article, the Fed-Gov is claiming that since you and I grow our own food, we adversely affect the 'market value' of other food, and the economy, by NOT partaking of it. So they can order us to NOT make our own and 'get with the program' of putting ourselves under their bootheel.

    It's basically an adaptation and perverse rethinking of 'negative logic'.

    Makes it all too easy for the Fed-Gov to claim total control of every aspect of our lives...... which is exactly what this evil misadministration has been doing since Day One. Yeah, it didn't start with the illegal African, been going on for decades.... but he has raised this idea to new lows.... :rolleyes:
    STANGF150 and tulianr like this.
  6. ghrit

    ghrit Bad company Administrator Founding Member

    By extension, carving your own toothpicks affects interstate commerce. I don't see an end to this allowing federal interference in trivial matters. So far as zero's "health" care goes, I don't see much difference between an insurance premium and a fine for not paying a premium. So, dot gov is effectively competing with private carriers. Lessee if SCOTUS looks at it from that angle.
  7. Minuteman

    Minuteman Chaplain Moderator Founding Member

    The interstate commerce act was the basis for the 1934 gun control act, and every gca since. Montana and other States are challenging the federal powers with 10th amendment laws.
    STANGF150, BTPost and ghrit like this.
survivalmonkey SSL seal        survivalmonkey.com warrant canary