Wednesday, March 28, 2012

It all started with a grain of wheat

The year was 1940, and America was still mired in the throes of the Great Depression.

In Ohio, a farmer by the name of Roscoe Filburn was busy planting his fall crop of wheat. His plan was simple: he would keep enough grain for himself to feed his family and his livestock and he would sell the remaining bounty.

Unfortunately for Filburn, there was a federal law on the books (the Agricultural Adjustment Act of 1938; "the Act") which limited the amount of area wheat producers could farm. The legislation was intended to reduce the supply of grain, thereby inflating prices and stimulating the economy. And, the law carried a stiff penalty – farmers caught violating its provisions risked a fine and destruction of their illicit crops.

As fate would have it, the amount of wheat Filburn planted that year violated his federal allotment, and he got caught. However, Filburn challenged the government's enforcement of the Act by arguing the federal government had no right to limit the amount of grain he planted for private consumption under the pretext of regulating agricultural commerce.

Filburn took his case all the way up to the United States Supreme Court. And, in the end, he lost.

The case is Wickard v. Filburn, 317 U.S. 111 (1942), and it stands to this day as bedrock constitutional law. The Supreme Court held that enforcement of the Act was constitutional under the Commerce Clause of the United States Constitution because even trivial, local activities have an aggregate effect on interstate commerce, albeit indirectly.

That holding has paved the way for an explosive expansion of federal legislation since the New Deal based on this understanding of Congress' power to regulate interstate commerce. Legislation, that is, including The Patient Protection and Affordable Care Act of 2010, known by many as "Obamacare".

The main argument taking place this week before the Supreme Court is whether Congress has authority under the Commerce Clause to require private individuals to purchase health insurance or face a fine assessed by way of the tax code.

There is a lot riding on this argument. As conservative columnist Charles Krauthammer has noted, upholding Obamacare under the Commerce Clause would "fundamentally change the nature of the American social contract." If practically anything, even personal health care decisions, can be included within "interstate commerce," then Congress has essentially limitless powers. The entire understanding of enumerated powers and reserved state power under the Tenth Amendment would be nullified; in essence, Congress' enumerated power would be boundless.

Here's hoping the Supreme Court rejects the notion of an imperial Congress and that it strikes down the interpretation of the Commerce Clause used to enact Obamacare.

After all… a fight about the Commerce Clause might seem awfully obtuse today, but when it's YOUR crops on the line, the power of Congress to regulate private activity hits pretty close to home. Just ask Roscoe Filburn.