Since it keeps coming up: Forget about "constitutionality"

Wickard v. Filburn, 1942.



Wickard v. Filburn today provides the legal underpinnings for literally THOUSANDS of laws, and is actively cited in cases regularly. It also provides the legal foundation on which many of our federal civil rights laws are based, is regularly cited when new environmental laws are drafted, and overturning it would be a Libertarians dream as it would strip the federal government of vast portions of its authority. Before Wickard v. Filburn, there was NO legal basis for Congress to pass ANY laws that didn't impact commerce between states. Most laws governing business were written at the state level, and we all know how well THAT worked.

So, here's why it's constitutional: By not purchasing health insurance, you are impacting the price of health insurance in this country, which is a product that is subject to the interstate commerce clause. Because your lack of purchasing is negatively impacting an economic activity that Congress DOES have an ability to regulate, Wickard v. Filburn grants Congress the right to regulate your decision. By not buying wheat, Filburn negatively impacted the wheat market. By not buying insurance, many Americans are negatively impacting the insurance market. The USSC granted Congress the ability to require Mr. Filburn to buy wheat, and the ability to require you and I to buy insurance.

I don't like this health care bill, and I hope it goes down in flames, but anyone hoping for a hail mary pass from the USSC is going to be sorely disappointed.

I think there is a legitimate difference between prohibiting somebody from doing something and making her do something in this context.

They could also ban backyard gardens (you're not buying food!), require us all to drive more (support the oil companies!), or mandate that we all spend at least 10% of our incomes on vacations (save the travel industry!)

Wickard v. Filburn granted Congress the legal ability to pass laws mandating all of these things. They don't do it because they know that we'd be rioting in the streets if they tried...or at least thowing them out of office at election time. Congress is betting, right now, that we WON'T react that way to an insurance mandate.

And Wickard v. Filburn was all about mandates. If you have a bit of time and want to read something that will change your perspective on federal authority, you should read the full decision. Filburn didn't lose because he grew too much. He lost because his decision to grow too much eliminated his need to BUY wheat. He wasn't selling his wheat at all...it was grown on his own farm for his own use. Because he didn't buy it, he impacted the market. Because he impacted the market, the USSC determined that the commerce clause applied.

Wickard v. Filburn gave Congress the authority to regulate nearly every aspect of domestic production and trade.