Mr. Filburn sued to overturn a 1938 federal law that told him how much wheat he could grow on his family farm and made him pay a penalty for every extra bushel...
To hear the Obama administration tell it, the Filburn decision illustrates just how much leeway the federal government has under the Constitution’s commerce clause to regulate the choices individuals make in matters affecting the national economy. If the government can make farmers choose between growing crops on their own land and paying a penalty, the administration’s lawyers have said, it can surely tell people that they must obtain health insurance or pay a penalty.
I think that the Obama administration is correct in it's position that if it was constitutional to tell a private citizen what it can or cannot grow on his or her private land on the simple presumption that it somehow "affects the national economy" then certainly the administration can tell a private citizen to purchase health insurance. The operative word being "purchase". If you are "purchasing" a product, then the commerce clause comes into effect.
But here's my problem: I think the Wicker decision was wrong. Here is a part of the decision from Wickard:
The appellee for many years past has owned and operated a small farm in Montgomery County, Ohio, maintaining a herd of dairy cattle, selling milk, raising poultry, and selling poultry and eggs. It has been his practice to raise a small acreage of winter wheat, sown in the Fall and harvested in the following July; to sell a portion of the crop; to feed part to poultry and livestock on the farm, some of which is sold; to use some in making flour for home consumption, and to keep the rest for the following seeding. The intended disposition of the crop here involved has not been expressly stated.
In July of 1940, pursuant to the Agricultural Adjustment Act of 1938, as then amended, there were established for the appellee's 1941 crop a wheat acreage allotment of 11.1 acres and a normal yield of 20.1 bushels of wheat an acre. He was given notice of such allotment in July of 1940, before the Fall planting of his 1941 crop of wheat, and again in July of 1941, before it was harvested. He sowed, however, 23 acres, and harvested from his 11.9 acres of excess acreage 239 bushels, which, under the terms of the Act as amended on May 26, 1941, constituted farm [p115] marketing excess, subject to a penalty of 49 cents a bushel, or $117.11 in all. The appellee has not paid the penalty, and he has not postponed or avoided it by storing the excess under regulations of the Secretary of Agriculture, or by delivering it up to the Secretary. The Committee, therefore, refused him a marketing card, which was, under the terms of Regulations promulgated by the Secretary, necessary to protect a buyer from liability to the penalty and upon its protecting lien. [n4]...
Hence, marketing quotas not only embrace all that may be sold without penalty, but also what may be consumed on the premises. Wheat produced on excess acreage is designated as "available for marketing" as so defined, and the penalty is imposed thereon. [n14] Penalties do not depend upon whether any part of the wheat, either within or without the quota, is sold or intended to be sold. The sum of this is that the Federal Government fixes a quota including all that the farmer may harvest for sale or for his own farm needs, and declares that wheat produced on excess acreage may neither be disposed of nor used except upon payment of the penalty, or except it is stored as required by the Act or delivered to the Secretary of Agriculture.
In essence this decision declared that the US Congress has the power to regulate what you grow on your private property regardless of whether you intend to sell it or us it for your own consumption. Think about that for a minute. Under this decision the government can decide that you cannot, for example, put a solar panel on your property without paying a fine because you would no longer be paying the local electric company (commerce). Or that because you were feeding electricity into the grid you were depreciating the market value of electricity (commerce).
As some people have discovered the government could decide that you cannot collect rain water that falls on your property because you are no longer using the water supplied by the government approved supplier (commerce) or buying water from Poland Spring (commerce). Another water related argument which has actually been used, is that the water is actually not yours and that the government actually owns all water that falls in it's jurisdiction
This isn't to say that the Congress does not in fact have the power to regulate interstate commerce. It does. But that power must be limited and certainly should not extend to what people do on their private property without extreme deference to the citizen.
In this case, my position on Wickard doesn't much matter. Wickard, in my opinion supports the Obama administration. However my position is different than that taken in Wickard. My position is that the health care law forces the people to purchase a product from a private party rather than offering the service itself as is the case with Medicare. Wickard wasn't about the purchasing of wheat by Filburn (or anyone else). Wickard is about Filburn selling and/or using his own product without the interference of government. Filburn wasn't being penalized for not growing wheat. He is penalized for his participation in growing wheat on his own property for his own consumption.
In comparison, the state, which already has a program in which citizens are covered under health insurance by the state (medicare and medicaid) in which the government pays 3rd parties for services rendered, wishes to tell those under the age of 65 that they must go into business with a 3rd party or the state will punish them. It is like the state telling you that you must do business with Burger King or else. That may be absurd but think of all the laws on the books now that were considered impossible and absurd just 50 years ago. Take the long view people. The long view.
