- The Washington Times - Thursday, June 2, 2011

The White House defense of Obamacare hinges on the claim that Congress essentially has unlimited power to force Americans to spend their personal money on a cause of the government’s choosing. Oral arguments before the 6th Circuit Court of Appeals on Wednesday made this all the more clear.

Administration lawyers argued that uninsured individuals can be compelled to buy health care coverage under the Commerce Clause of the Constitution. If that’s so, what else could Congress compel people to do? As Judge James L. Graham asked acting Solicitor General Neal Katyal, “Where ultimately is the limit on congressional power?” The question sounds rhetorical but is not.

The judicial high-water mark for advocates of federal management of personal economic activity was the 1942 case of Wickard v. Filburn. Roscoe Filburn was an Ohio farmer fined for the crime of growing too much wheat. Mr. Filburn insisted the New Deal-era crop quotas did not apply to his particular circumstances because he was growing feed for his chickens, not for sale. The Supreme Court declared that the Commerce Clause applied to non-commerce because “control of total supply, upon which the whole statutory plan is based, depends upon control of individual supply.” The notion that a farmer should be free to grow grain on private property for personal use was not compelling, given the court’s belief in the overwhelming benefits of a centrally managed marketplace. Since “as the result of the wheat programs” Mr. Filburn was able to sell his other crops at a price “far above any world price based on the natural reaction of supply and demand,” he should be thanking the government for usurping his freedom, not suing it. To the activist liberals on the high bench, farmer Filburn was simply an ingrate.

The pernicious logic of Wickard v. Filburn has been used to justify other examples of stretching the Commerce Clause, such as the assertion of federal jurisdiction over homegrown medical marijuana. In the 2005 case Gonzales v. Raich, the court reaffirmed that “Congress can regulate purely intrastate activity that is not itself ‘commercial,’ in that it is not produced for sale, if it concludes that failure to regulate that class of activity would undercut the regulation of the interstate market in that commodity.”


The Obama administration is taking this a step further. The White House claims that the burden placed on the health care system by the uninsured justifies coercing them into action. The “class of activity” that undermines the regulation of the “interstate market” in health care is inactivity. Since there is no interstate commerce to regulate, the government mandates it.

That’s why Obamacare isn’t just a threat to the private health care system. It strikes at the very foundation of our nation. In our earliest days, Chief Justice John Marshall warned that if Congress can exercise powers that are in practice unlimited, then “written constitutions are absurd attempts, on the part of the people, to limit a power in its own nature illimitable.” It is “a proposition too plain to be contested” that the Constitution cannot be used to justify an act that destroys the very limits on which constitutional government is founded, he wrote. The courts should move expeditiously to throw out the president’s unconstitutional power grab.