Something Wickard This Way Comes

Writing for the liberal political site Politico, Josh Gersten makes a very important point about the Obamacare case:

If the justices knock out key parts of the law or bring down the whole thing, the reverberations could be felt across the legal landscape for generations to come, radically reining in the scope of federal power, according to supporters of the law and others who closely track the high court.

And if the justices decide the individual mandate is a constitutional overreach, these observers say, federal labor and environmental laws could be the next on the firing line.

I suspect that's correct and it's hard to see why that's a bad thing. One of the benefits of landmark cases like the one we saw last week is that it casts light on previous decisions that have affected how we live. One of the more important cases involved in what's happening now is the 1942 case Wickard v. Filburn. Roscoe Filburn was a wheat farmer who sold most of his crop, but kept a portion for his own personal use. Wickard in this case was Franklin Roosevelt's Agriculture Secretary, who fined Filburn because he had grown more wheat than he was allowed to under the Agriculture Adjustment Act of 1938.

Filburn argued that since he was growing the crop for his own personal use, it wasn't part of interstate commerce. The Supreme Court ruled otherwise and upheld the fine, reversing a lower court decision.

The summation from the link:

The wheat marketing quota and attendant penalty provisions of the AAA, even when applied to wheat not intended in any part for commerce but wholly for consumption on the farm, are within the commerce power of Congress. The power to regulate interstate commerce includes the power to regulate commodity prices and practices affecting them.

The effect of the AAA is to restrict the amount of wheat which may be produced for market and the extent to which one may avoid resorting to the market by producing for his own needs. That the production of wheat for consumption on the farm may be trivial in some cases is not enough to remove the grower from the scope of federal regulation where the aggregate effect of such behavior by many others is far from trivial.

You can see the issue involved and why it would apply to Obamacare: if you extend the logic of Wickard, then it's difficult to argue that Obamacare's depredations are unconstitutional. If Congress can tell a wheat farmer he can't keep part of his own crop, Congress can bloody well tell anyone to do anything it wants to do, since just about anything you do could, in theory, affect interstate commerce.

Wickard and the attendant cases that have flowed from it are the reason that the feds can tell you not to build something on your own land, among other things. Wickard may also be the reason that Obamacare may stand. It's possible that we are all Roscoe Filburn; the Obamacare decision will go a long way to determining that.