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It's A Gray Area: Health-care plan arguments centered around 1942 case

March 30, 2012|By James P. Gray

As I am writing this column, the U.S. Supreme Court is hearing arguments about whether the federal government has the power under the commerce clause of the Constitution to order private parties to buy health insurance.

Being a Libertarian, I'd argue the answer is no. But because this is such a large topic of conversation, I want to give you some of the arguments that the Supreme Court will be considering, so you can more easily follow along.

The genesis of this argument goes back to the 1942 case of Wickard v. Filburn. That case involved a farmer named Roscoe Filburn who was growing wheat for consumption on his own farm. But this was during the Great Depression, and the federal government had established a policy to increase prices of wheat by buying huge amounts of it and also reducing its export. As a further part of this policy, the government established limits of how much per acre a farmer could grow, and Filburn had exceeded those limits. Thus Filburn was ordered to destroy the excess wheat he grew, and to pay a fine. He appealed.

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The Supreme Court held that even though Filburn used all of his own wheat himself, and had no intention to sell any of it, he was still affecting interstate commerce. Why? Because the limiting of production was intended to drive up the price of wheat, and if he did not raise his own wheat, Filburn would likely be forced to buy other wheat that might have traveled in interstate commerce. Therefore, Congress had the authority to regulate even Filburn's own homegrown wheat.

This precedent was generally followed without interruption until 1995, when the Supreme Court heard the case of United States v. Lopez. Alfonso Lopez Jr. had been found carrying a handgun within a certain distance of a school, and eventually was convicted of a violation of the federal Gun-Free School Zones Act of 1990.

But in Lopez, the Supreme Court held that the scope of the commerce clause was not great enough for Congress to regulate the carrying of handguns by private parties, especially when there was no evidence that carrying the guns affected the economy "on a massive scale." In this ruling, the court rightfully described Wickard v. Filburn as "perhaps the most far-reaching example of commerce clause authority over intrastate commerce." Yes, the authority was still far reaching, but there were limits. Of course, this type of local conduct could still be controlled by the states, but not by the federal government.

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