Attorney David Owsiany has a great summary of the legal basis for the Federal Government’s regulatory expansion into all parts of our lives in the Columbus Dispatch (Nov 19, 2011). The case is also the legal legacy that supporters of Obamacare are relying on to establish a national health care mandate.
Today’s regulatory over-reach started with a farmer, Roscoe Filburn, who had the audacity to challenge the Roosevelt Administration’s quota’s on wheat production in the late 1930s. Filburn argued that the “excess” wheat–the amount over the federally imposed quota–was used to feed his livestock and family (which begs the question of whether it really was excess production). The Supreme Court ruled in favor of the government, arguing that if more farmers did what Filburn did, in aggregate they could impact the national supply of wheat, and therefore influence interstate commerce, which is under the Constitutional authority of the Federal government. As David writes:
“Filburn’s case ushered in an era of federal government expansion. Since the New Deal, Congress has used the Commerce Clause to justify expansion of federal authority — from the Endangered Species Act to statutes making local loan-sharking a federal crime and just about everything in between. Conservative legal scholar Robert Bork noted that Filburn’s case gave the green light to Congress to regulate even the most “trivial and local” of activities.
“Filburn’s case still resonates today. At least six lower federal courts have ruled on whether the individual mandate is authorized by the Commerce Clause, and all of them — whether ruling in favor or against the law — discussed Filburn’s case in reaching their decisions.”
Of course, the irony of all this is that most economists and policy analysts recognize that the quotas and crop support programs created during the Depression are among the most inefficient, least cost-effective, and egregious examples of bad policy and how these policies perpetuate themselves regardless of their objective merits.
Somehow, I don’t think the Supreme Court justices considering the Constitutionality of Obamacare will consider this. (And perhaps that’s the point for Obamacare supporters.)