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Obamacare Mandates Justified by ‘Interstate Commerce’? (Obama's Team recycles an old trick)
National Review ^ | 03/28/2012 | Thomas Sowell

Posted on 03/28/2012 6:36:29 AM PDT by SeekAndFind

When a 1942 Supreme Court decision that most people have never heard of makes the front page of the New York Times in 2012, you know that something unusual is going on.

What makes that 1942 case — Wickard v. Filburn — important today is that it stretched the federal government’s power so far that the Obama administration is using it before today’s Supreme Court as an argument to claim that it has the legal authority to impose Obamacare mandates on individuals.

Roscoe Filburn was an Ohio farmer who grew some wheat to feed his family and some farm animals. But the U.S. Department of Agriculture fined him for growing more wheat than he was allowed to grow under the Agricultural Adjustment Act of 1938, which was passed under Congress’s power to regulate interstate commerce.

Filburn pointed out that his wheat wasn’t sold, so that it didn’t enter any commerce, interstate or otherwise. Therefore the federal government had no right to tell him how much wheat (which never left his own farm) he could grow.

The Tenth Amendment to the Constitution says that all powers not explicitly given to the federal government belong to the states or to the people. So you might think that Filburn was right.

But the Supreme Court said otherwise. Even though the wheat on Filburn’s farm never entered the market, just the fact that “it supplies a need of the man who grew it which would otherwise be reflected by purchases in the open market” meant that it affected interstate commerce. So did the fact that the home-grown wheat could potentially enter the market.

The implications of this kind of reasoning reached far beyond farmers and wheat. Once it was established that the federal government could regulate not only interstate commerce itself, but anything with any potential effect on interstate commerce, the Tenth Amendment’s limitations on the powers of the federal government virtually disappeared.

Over the years, “interstate commerce” became magic words to justify almost any expansion of the federal government’s power, in defiance of the Tenth Amendment. That is what the Obama administration is depending on to get today’s Supreme Court to uphold the administration’s power to tell people that they have to buy the particular health insurance specified by the federal government.

There was consternation in 1995 when the Supreme Court ruled that carrying a gun near a school was not interstate commerce. That conclusion might seem like only common sense to most people, but it was a close 5–4 decision, and it sparked outrage when the phrase “interstate commerce” failed to work its magic in justifying an expansion of the federal government’s power.

The 1995 case involved a federal law forbidding anyone to carry a gun near a school. The states all had the right to pass such laws, and most did, but the issue was whether the federal government could pass such a law under its power to regulate interstate commerce.

The underlying argument was similar to that in the 1942 case of Wickard v. Filburn: School violence can affect education, which can affect productivity, which can affect interstate commerce.

Since virtually everything affects virtually everything else, however remotely, “interstate commerce” can by this kind of sophistry justify virtually any expansion of government power.

The principle that the legal authority to regulate X implies the authority to regulate anything that can affect X is a huge and dangerous leap of logic in a world where all sorts of things have some effect on all sorts of other things.

As an example, take a law that liberals, conservatives, and everybody else would agree is valid — namely, that cars have to stop at red lights. Local governments certainly have the right to pass such laws and to punish those who disobey them. No doubt people who are tired or drowsy are more likely to run through a red light than people who are rested and alert. But does that mean that local governments should have the power to order people when to go to bed and when to get up, because their tiredness can have an effect on the likelihood of their driving through a red light?

The power to regulate indirect effects is not a slippery slope. It is the disastrous loss of freedom that lies at the bottom of a slippery slope.

— Thomas Sowell is a senior fellow at the Hoover Institution.


TOPICS: Constitution/Conservatism; Culture/Society; Government; News/Current Events
KEYWORDS: commerce; constitution; obamacare; scotusobamacare; scotusocareday2; thomassowell

1 posted on 03/28/2012 6:36:39 AM PDT by SeekAndFind
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To: SeekAndFind

The government could require us to dine OUT rather than at home as dining in has a negative effect on commerce.


2 posted on 03/28/2012 6:40:06 AM PDT by Oratam
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To: SeekAndFind

By destroying competition, and using fixed pricing Obama”care” violates anti-trust laws.


3 posted on 03/28/2012 6:41:35 AM PDT by Graewoulf ((Dictator Baby-Doc Barack's obama"care" violates Sherman Anti-Trust Law, AND U.S. Constitution.))
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To: SeekAndFind

Here is the problem as I see it.

If he didn’t grow wheat, for his family or for commerce, would he be penalized for not growing it?

That’s the problem with Obamacare. If I do not want healthcare or need healthcare, why shuld I be penalized for it.

Now I would take it a step further and reall screw up the SCOTUS. If I do not have kids I nschool, why should I pay property taxes?


4 posted on 03/28/2012 6:43:21 AM PDT by EQAndyBuzz (Solyent Pink is Sheeple!!!!)
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To: SeekAndFind

I is dead (Hopeful)


5 posted on 03/28/2012 6:46:37 AM PDT by boomop1 (term limits is the only way to save this country.)
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To: Oratam

A mandate is merely a dictate. Thus, if we are dictated to, do we then live under a Dictatorship?

If our freedom of choice is taken from us by the dictates of a hostile Federal government, then what Liberty do we have left?


6 posted on 03/28/2012 6:50:57 AM PDT by Graewoulf ((Dictator Baby-Doc Barack's obama"care" violates Sherman Anti-Trust Law, AND U.S. Constitution.))
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To: EQAndyBuzz

Obamacare is not about health care. It’s about murdering people and becoming a dictator. I hope the Supreme Court does the right thing and throws it out. It is dangerous and so are the people that illegally put it in.


7 posted on 03/28/2012 6:51:00 AM PDT by freekitty (Give me back my conservative vote; then find me a real conservative to vote for)
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To: Oratam

A Dem government would require you to think only pure thoughts because impure thoughts lead to crime and have a negative effect on commerce.

But, because all Dems think about is Race, Social Justice, Abortion, Death, Taxes, and Tyranny, all their thoughts are intrinsically impure.

Ergo, can we permanently lock up all Dems and throw away the key?


8 posted on 03/28/2012 6:52:13 AM PDT by ProtectOurFreedom
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To: SeekAndFind

The yoke of Wickard needs to be thrown from our shoulders.


9 posted on 03/28/2012 6:52:13 AM PDT by MileHi ( "It's coming down to patriots vs the politicians." - ovrtaxt)
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To: SeekAndFind

In my dreams, the Supremes not only knock down ObamaCare but reverse Filburn as well.


10 posted on 03/28/2012 6:52:54 AM PDT by Paine in the Neck (Romney's judicial appointments were more radical than Obama's)
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To: EQAndyBuzz
If I do not have kids I nschool, why should I pay property taxes?

If this week's arguments are any indication, then the statist's response would be that because it is proven that lack of education contributes to a whole slew of social woes, which affect commerce(crime and destruction of wealth)and that you will eventually interact with society, at some point in your life, then you are responsible for paying for government mandated education; for the greater good.

Hope that clears it up, comrade.

11 posted on 03/28/2012 6:53:45 AM PDT by Turbo Pig (...to close with and destroy the enemy...)
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To: EQAndyBuzz

Regardless of the # number of kids you have, including zero, why is the burden of educating them the responsibility of property owners?


12 posted on 03/28/2012 6:56:24 AM PDT by WinMod70
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To: SeekAndFind

Madison:
With respect to the words general welfare, I have always regarded them as qualified by the detail of powers connected with them. To take them in a literal and unlimited sense would be a metamorphosis of the Constitution into a character which there is a host of proofs was not contemplated by its creators.


This applies to ANY clause in the Constitution that the left uses to justify government expansion.
“General Welfare”, “Necessary and Proper”, “Interstate Commerce”, etc.


13 posted on 03/28/2012 6:59:43 AM PDT by MrB (The difference between a Humanist and a Satanist - the latter knows whom he's working for)
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To: MrB
The mandate is just a way to get into your pocket...take ypur money....and give nothing in return.

I'm on SS. Every month they take out $100 for Part B and I also buy a supplement. So much for the joys of Medicare....and all the years I paid into it BEFORE I semi retired.

Pssst....Part B was $3.00 a month when it started..a typical hour's pay.

14 posted on 03/28/2012 7:04:46 AM PDT by Sacajaweau
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To: Turbo Pig

“Hope that clears it up, comrade. “

Yes tovarishch, that cleared things up.


15 posted on 03/28/2012 7:16:21 AM PDT by EQAndyBuzz (Solyent Pink is Sheeple!!!!)
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To: SeekAndFind

Sowell is great, but the 10th Amendment does not say “explicitly.”


16 posted on 03/28/2012 7:42:03 AM PDT by buridan
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To: buridan

Why does it need to say “explicitly”?


17 posted on 03/28/2012 7:55:34 AM PDT by Durus (You can avoid reality, but you cannot avoid the consequences of avoiding reality. Ayn Rand)
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To: Oratam

Well then government could mandate that we have to eat Obama Peas with a spoon, less we drop one from a fork and injure our health...


18 posted on 03/28/2012 8:01:38 AM PDT by Freddd (NoPA ngineers.)
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To: SeekAndFind
By this logic, Congress could outlaw private home ownership because it negatively affects the rental economy.

There was a time a few decades ago when Congress looked into imputing a rental income on home owners so as to tax that iputed income, on the premise that if they did not live in their own home they would be renting it and earning an income. Therefore, they should be treated as if they were paying themselves a rent for living in their own home.

-PJ

19 posted on 03/28/2012 8:28:02 AM PDT by Political Junkie Too (If you can vote for President, then your children can run for President.)
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To: Turbo Pig; EQAndyBuzz
If this week's arguments are any indication, then the statist's response would be that because it is proven that lack of education contributes to a whole slew of social woes, which affect commerce(crime and destruction of wealth)and that you will eventually interact with society, at some point in your life, then you are responsible for paying for government mandated education; for the greater good.

It is worse than the fact that you may at sometime interact with society - the mere fact that you COULD POSSIBLY have kids is a good enough reasoning by the liberals/statists!

And just to continue to add on to the STUPIDITY of these ideas, then the married gays and lesbians could file for freedom from these taxes because they CAN'T have kids! THINK ABOUT THAT MESSED UP LOGIC!
20 posted on 03/28/2012 8:31:56 AM PDT by ExTxMarine (PRAYER: It's the only HOPE for real CHANGE in America!)
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To: SeekAndFind

Alcoholism, drug addiction and STDs all contribute to rising health care costs. The Bible promotes sobriety, temperance, and abstinence from extra-marital sex. Ergo, Fedzilla should mandate that every citizen purchase a Bible.


21 posted on 03/28/2012 8:37:50 AM PDT by kevao
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To: SeekAndFind

By 1942 most of the justices on the Supreme Court were FDR’s nominees.


22 posted on 03/28/2012 9:02:26 AM PDT by Verginius Rufus
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To: SeekAndFind

insurance is only sold within each state, so the regulation of interstate commerce would not apply.


23 posted on 03/28/2012 9:09:21 AM PDT by willyd (your credibility deficit is screwing up my bs meter...)
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To: ExTxMarine

I would use this logic against the libs. Keep throwing out all these things and when they claim how stupid they are, tell them it is their ideas.

Some will actually say, hmmm... But most will put their hands over their ears and go nananananana......

Or, You’re a racist.


24 posted on 03/28/2012 9:46:50 AM PDT by EQAndyBuzz (Solyent Pink is Sheeple!!!!)
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To: SeekAndFind
There was consternation in 1995 when the Supreme Court ruled that carrying a gun near a school was not interstate commerce. That conclusion might seem like only common sense to most people, but it was a close 5–4 decision, and it sparked outrage when the phrase “interstate commerce” failed to work its magic in justifying an expansion of the federal government’s power.

The 1995 case involved a federal law forbidding anyone to carry a gun near a school. The states all had the right to pass such laws, and most did, but the issue was whether the federal government could pass such a law under its power to regulate interstate commerce.

The underlying argument was similar to that in the 1942 case of Wickard v. Filburn: School violence can affect education, which can affect productivity, which can affect interstate commerce.

Gee, this could be an argument against the legalization of medical marijuana, or the home cultivation of such in any stae. Some of the MJ could find it's way to truck drivers, and affect the reliability of their driving, which would in turn affect interstate commerce. Okaaaaayyy.

/S, of course

25 posted on 03/28/2012 9:58:55 AM PDT by Pearls Before Swine
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To: SeekAndFind

I gotta ask..

since I can’t buy health insurance from another state.. how can they claim they can regulate health insurance under “interstate commerce”?


26 posted on 03/28/2012 9:05:09 PM PDT by cableguymn (Good thing I am a conservative. Otherwise I would have to support Mittens like Republicans do.)
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To: Durus

It is reference to Article II of Confederation:

“Each state retains its sovereignty, freedom, and independence, and every Power, Jurisdiction, and right, which is not by this confederation expressly delegated to the United States, in Congress assembled.”

The anti-federalists demanded insertion of this Article as an amendment to the Constitution.


27 posted on 03/29/2012 10:38:42 AM PDT by Jacquerie (No court will save us from ourselves.)
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To: Jacquerie

I much prefer the 10th amendment to Article II. Art. II enshrined the supremecy of the state over the people. The 10th Amendment holds both the Federal and State governments to their constitutionally enumerated powers and reserved all other powers to the people.


28 posted on 03/30/2012 6:02:28 AM PDT by Durus (You can avoid reality, but you cannot avoid the consequences of avoiding reality. Ayn Rand)
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To: Durus

Durus wrote: ‘Why does it need to say “explicitly”?’

I agree that it doesn’t really need to to be effective. However, if it did, it would limit federal power to an even greater extent.


29 posted on 03/31/2012 1:46:28 PM PDT by buridan
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To: buridan

The 10th Amendment limted the power of government to only those constitutionally enumerated. It reserves all other power to the states or to the people. That our Government constantly ignores this can’t be fixed by adding any single word. We, the people, either hold them to the plain meaning of the constitution, or they will ignore it no matter what the words say.


30 posted on 04/02/2012 5:01:06 AM PDT by Durus (You can avoid reality, but you cannot avoid the consequences of avoiding reality. Ayn Rand)
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