November 9, 2012
When the Affordable Care Act (ACA) was passed in March of 2010, many anti-government advocates were incensed over the “individual mandate” – the provision that imposes a tax penalty for failing to carry health insurance.
Their argument, which was found in many of the lawsuits challenging the Act, was that “if the government can make you purchase health insurance, what can’t it do?”
The presumptive authority that Congress invoked to pass this provision of the ACA was the U.S. Constitution’s Commerce Clause, which gives Congress the power to “regulate commerce…among the several states.”
If some were troubled by that invocation of the Commerce Clause, I wonder how they’d react if the Agricultural Adjustment Act of 1938 (AAA) were passed today.
The AAA, among other things, established quotas for how much wheat that farmers were permitted to grow.
In other words, the government was telling farmers how much of a certain crop they were allowed to grow.
The AAA was challenged on constitutional grounds by a farmer, Roscoe Filburn, who admitted to producing more wheat than the AAA’s quotas permitted.
Filburn argued, however, that since his excess wheat was used solely for his own family’s private consumption, this excess wheat was beyond the reach of the Commerce Clause’s authority.
The challenge eventually made its way to the U.S. Supreme Court, which issued its ruling on November 9, 1942, 70 years ago today.
That ruling, which is now standard Commerce Clause fare in virtually all Constitutional Law classes, is Wickard v. Filburn.
As those familiar with Wickard already know, the Supreme Court ruled against Filburn.
The Court’s response to Filburn’s argument was that had he not used that excess wheat for private use, he would have had to purchase wheat on the open market.
If a large number of farmers engaged in the same activity, there would be a significant impact on the market demand for wheat, and national prices would be adversely affected – a substantial impact on interstate commerce.
This emphasis on wheat prices is significant because the AAA’s primary purpose was to control domestic wheat prices, which had been fluctuating wildly over the previous decade thanks to international factors.
The Supreme Court ruled that allowing Filburn to grow wheat for private consumption would have frustrated Congress’s purpose in passing the AAA: to control wheat prices through the regulation of interstate commerce.
It is highly unlikely that the Supreme Court of today would have ruled against Filburn, especially not unanimously as the Supreme Court of 70 years ago did.
Take the current Court’s most recent significant Commerce Clause ruling: National Federation of Independent Business v. Sebelius.
The Court’s ruling on the Commerce Clause issue in that case was a plurality decision: the four liberal Justices would have upheld the individual mandate on Commerce Clause grounds, and the four conservative Justices (minus the Chief Justice) would have struck it down on the same grounds.
The Chief Justice also would have struck it down under the Commerce Clause, but no clear precedent was created on this issue because the Chief Justice’s same opinion also upheld the mandate as a proper exercise of Congress’s taxing power.
The four conservative Justices refused to join with the portion of the Chief Justice’s opinion that limited Congress’s Commerce Clause authority, further confounding the case’s application as binding Commerce Clause precedent (at least until the Supreme Court says otherwise).
Regardless, the opinion makes clear that a majority of the current Supreme Court is against the logic used in Wickard: that a law that regulates individual economic behavior in order to affect interstate commerce is unconstitutional under the Commerce Clause.
Considering that this logic was applied in a markedly more attenuated fashion in Wickard than in NFIB, it’s unclear what, if any, congressional authority under the Commerce Clause exists anymore.
On the other hand, considering that several years usually separate landmark Supreme Court decisions on the Commerce Clause, the Court may look very different by the next time it considers the issue.
Whether the Court retains its current trajectory or returns to the principles found in Wickard remains to be seen.