Adam Liptak, At Heart of Health Law Clash, a 1942 Case of a Farmer’s Wheat, N.Y. Times,
March 20, 2012
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 Court’s
modern understanding of the scope of federal
power. It is the contested ground on which the
Courtesy of Mary Lou Filburn Spurgeon
health care case has been fought in the lower
Roscoe Filburn with wheat at his farm in Ohio around the time that
courts and in the parties’ briefs. And it is
the Supreme Court ruled against him in a case involving the
commerce clause of the Constitution.
likely to be crucial to the votes of Justices
Anthony M. Kennedy and Antonin Scalia,
Opponents of the law draw a different lesson
who are widely seen as open to persuasion by from Mr. Filburn’s case. They say it set the
either side.
outer limit of federal power, one the health
“Wickard has become so foundational for care law exceeds. It is one thing to encourage
generations of lawyers that any plausible
farmers to buy wheat by punishing them for
understanding of the commerce power must
growing their own, the argument goes. It is
come to terms with it,” said Bradley W.
another to require people to buy insurance or
Joondeph, a law professor at Santa Clara face a penalty, as the health care law does.
University.
“There’s a difference between being given an
Both supporters and opponents of the health incentive and compulsion,” said Michael A.
care law say the decision helps their side, and Carvin, a lawyer for the National Federation
for three days starting next Monday, it will be of Independent Business and several
at the center of the arguments before the individuals challenging the law.
Supreme
Court
about
the
law’s Mr. Filburn argued, as do opponents of the
constitutionality.
health care overhaul, that he was challenging a
To hear the Obama administration tell it, the law that was not authorized by the
Filburn decision illustrates just how much
Constitution, which allows Congress to
leeway the federal government has under the regulate commerce “among the several
Constitution’s commerce clause to regulate states.” A decision against him, Mr. Filburn
the choices individuals make in matters said, would move the nation toward a
affecting the national economy. If the centralized government and “nullifications of
government can make farmers choose between all constitutional limitations.”
growing crops on their own land and paying a
The Supreme Court’s ruling against him was
penalty, the administration’s lawyers have unanimous.
said, it can surely tell people that they must
“Even if appellee’s activity be local,” Justice
obtain health insurance or pay a penalty.
Robert H. Jackson wrote, referring to Mr.
Filburn’s farming, “and 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.”
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
people’s 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.
“If 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?” an
editorial in The New York Times asked. “The
net of the ruling, in short, seems to be that
Congress can regulate every form of economic
activity if it so decides.”
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. “The
constitutional foundation for Congress’s
action is considerably stronger” 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 “regulates the way in which
the uninsured finance what they will consume
in the market for health care services (in
which they participate).”
Opponents of the law take the opposite view,
using an analogy. It is true that the federal
government may “regulate bootleggers
because of their aggregate harm to the
interstate liquor market,” Mr. Carvin wrote in
a recent brief. But the government “may not
conscript
teetotalers
merely
because
conditions in the liquor market would be
improved if more people imbibed.”
“Yet the uninsured regulated by the mandate,”
the brief went on, “are the teetotalers, not the
bootleggers, of the health insurance market.”
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 O’Connor, 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 O’Connor
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.
“The similarities between this case and
Wickard are striking,” Justice John Paul
Stevens wrote for five members of the court,
including Justice Kennedy. “Here, too,
Congress had a rational basis for concluding
that leaving home-consumed marijuana
outside federal control would similarly affect
price and market conditions.”
Justice Scalia wrote a separate concurrence,
also citing Wickard v. Filburn.
“Congress may regulate even noneconomic
local activity if that regulation is a necessary
part of a more general regulation of interstate
commerce,” 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 court’s 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.