At Heart of Health Law Clash, a 1942 Case of a Farmerfs
Wheat
Published: March 19, 2012 - New York Times
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 Courtfs 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 partiesf 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.
gWickard has become so foundational for generations of
lawyers that any plausible understanding of the commerce power must come to
terms with it,h 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 lawfs
constitutionality.
To hear the Obama administration tell it, the Filburn
decision illustrates just how much leeway the federal government has under the
Constitutionfs 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
administrationfs 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.
Filburnfs 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.
gTherefs a difference between being given an incentive
and compulsion,h 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 gamong the several
states.h A decision against him, Mr. Filburn said, would move the nation toward
a centralized government and gnullifications of all constitutional limitations.h
The Supreme Courtfs ruling against him was unanimous.
gEven if appelleefs activity be local,h Justice Robert
H. Jackson wrote, referring to Mr. Filburnfs farming, gand 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.h
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 peoplefs 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.
gIf 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?h an editorial in The New York Times asked. gThe net of the
ruling, in short, seems to be that Congress can regulate every form of economic
activity if it so decides.h
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. gThe constitutional foundation for
Congressfs action is considerably strongerh 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 gregulates the way in
which the uninsured finance what they will consume in the market for health care
services (in which they participate).h
Opponents of the law take the opposite view, using an
analogy. It is true that the federal government may gregulate bootleggers
because of their aggregate harm to the interstate liquor market,h Mr. Carvin
wrote in a
recent brief. But the government gmay not conscript teetotalers merely
because conditions in the liquor market would be improved if more people
imbibed.h
gYet the uninsured regulated by the mandate,h the
brief went on, gare the teetotalers, not the bootleggers, of the health
insurance market.h
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 OfConnor, 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 OfConnor
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.
gThe similarities between this case and Wickard are
striking,h Justice John Paul Stevens wrote for five members of the court,
including Justice Kennedy. gHere, too, Congress had a rational basis for
concluding that leaving home-consumed marijuana outside federal control would
similarly affect price and market conditions.h
Justice Scalia wrote a separate concurrence, also
citing Wickard v. Filburn.
gCongress may regulate even noneconomic local activity
if that regulation is a necessary part of a more general regulation of
interstate commerce,h 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 courtfs 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.