Want to prop up a terrible law? Use an awful precedent

In a split 2-1 decision, the Sixth U.S. Circuit Court of Appeals has upheld ObamaCare’s individual mandate, using Wickard v. Filburn to buttress its decision.

Why is this significant? The Filburn case is one of the worst decisions the U.S. Supreme Court ever handed down. We’ve discussed it in this forum in the past.

There’s plenty of dumb to go around, and that was true for our country even during the 1942 version of the fight for the free world.

Consider the following story from Mark R. Levin’s Men In Black: How The Supreme Court Is Destroying America (Regnery, 2005).

Sixty-five years ago, Roscoe Filburn owned and operated a small dairy farm in Ohio; in addition to his cows, Filburn grew wheat. He sold some of that wheat, but he used much of it to feed his lifestock.

That livestock feeding and other internal uses of the wheat (for flour and seeding) earned him a $117.11 fine because he exceeded a federally mandated wheat quota. Filburn challenged that fine in court.

A unanimous Supreme Court ruled against him. Justices determined that Filburn’s use of his own wheat for his own livestock affected interstate commerce. How? He didn’t have to buy wheat on the open market; his decision not to purchase wheat affected wheat prices.

Levin quotes Justice Robert Jackson’s opinion:

It can hardly be denied that a factor of such volume and variability as home-consumed wheat would have a substantial influence on price and market conditions. This may arise because being in marketable condition such wheat overhangs the market and if induced by rising prices tends to flow into the market and check price increases. But if we assume that it is never marketed, it supplies a need of the man who grew it which would otherwise be reflected by purchases in the open market. Home-grown wheat in this sense competes with wheat in commerce. The stimulation of commerce is a use of the regulatory function quite as definitely as prohibitions or restrictions thereon.


By the way, Human Events has the best headline I’ve seen on this story to date: “Sixth Circuit Says Congress Can Make You Buy Stuff.”

Mitch Kokai / Senior Political Analyst

Mitch Kokai is senior political analyst for the John Locke Foundation. He joined JLF in December 2005 as director of communications. That followed more than four years as chie...

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