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.
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.
By 1942 most of the justices on the Supreme Court were FDR’s nominees.
insurance is only sold within each state, so the regulation of interstate commerce would not apply.
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.
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
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”?
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.
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.
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.
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.
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