I already gave my initial thoughts on today’s health care ruling, but as I read the opinions in greater depth, I’m moved to go into further depth about the bizarre interpretation of the commerce clause underlying the dissent from Justices Scalia, Kennedy, Alito and Thomas and the portion of Chief Justice Roberts’s decision that agreed with the dissent. And it’s all about wheat. Exciting times ahead!
The dissent fixates on the Supreme Court precedent of Wickard v. Filburn, a 1942 decision upholding the power of Congress to set limits on the amount of wheat farmers could grow on their land in an effort to limit supply and therefore keep prices up so farmers could support themselves. According to the Supreme Court, the production limits were a regulation of interstate commerce, even though the farmer in Wickard was growing wheat strictly for personal consumption (it was really good, hydroponic wheat). The Court held that even though the wheat at issue was never intended to enter the market and therefore not bound for any commercial activity, Congress still had the power to bar the farmer from growing excess wheat because his use of his personal crop kept him from buying additional wheat on the open market, which skewed the demand for wheat and undermined the regulation.
Today the dissent distinguished the individual mandate from Wickard by saying:
The striking case of Wickard v. Filburn, 317 U. S. 111 (1942), which held that the economic activity of growing wheat, even for one’s own consumption, affected commerce sufficiently that it could be regulated, always has been regarded as the ne plus ultra of expansive Commerce Clause jurisprudence. To go beyond that, and to say the failure to grow wheat (which is not an economic activity, or any activity at all) nonetheless affects commerce and therefore can be federally regulated, is to make mere breathing in and out the basis for federal prescription and to extend federal power to virtually all human activity.
The problem is that the dissent makes its point only by comparing apples and oranges…or…well, let’s just say “deftly switching the issue being regulated.” Despite the claim of the dissent, “growing wheat” is not a commercial activity under Wickard. Whether or not you buy or sell that wheat is. In fact, the whole point of Wickard is that the farmer was not engaging in economic activity by growing wheat on the side. Wickard held that the failure to buy wheat on the open market constitutes commercial activity. Congress has the power to set production limits on wheat only because that is necessary to regulate the buying and selling of wheat.
Thus, the farmer in Wickard was effectively mandated to buy wheat on the open market even though he would never have engaged in that economic activity absent the law. Sound familiar?