On Obamacare: Wickard v. Filburn, Part Deux

A federal district court judge in Virginia yesterday threw out a lawsuit by Liberty University challenging the individual mandate portion of Obamacare on the grounds that – get this – everybody will eventually get sick.

“Far from inactivity, by choosing to forgo insurance, plaintiffs are making an economic decision to try to pay for health care services later, out of pocket, rather than now, through the purchase of insurance,” said Judge Norman Moon, a Clinton appointee.

This is the second time a Democratic judicial appointee has put out such ridiculous reasoning in support of Obamacare – a federal judge in Michigan has already upheld it on similar grounds.

In other words, choosing not to engage in commerce – namely, refusing to purchase health insurance and instead planning to bring a checkbook or credit card to the doctor – is covered by the Commerce Clause and can be regulated by the federal government.

Or if you’d like it put another way, there are no constitutional limits to federal control over your life. None. Don’t bother going to federal court if you believe otherwise, because if you run into a judge appointed by Obama or Clinton, you’ll get nowhere.

The Justice Department is triumphant upon actually winning a case – something they rarely seem to be able to do of late, whether it’s prosecuting Muslim jihadists in civilian courts or defending Obama’s moratorium – and put out a gleeful statement from Moon’s ruling…

“We welcome this decision and will continue to vigorously defend this the health care reform statute in litigation challenging it. We are confident that this statute is constitutional and that we will prevail.”

The ruling is reminiscent of that in Wickard v. Filburn, a disgraceful 1942 Supreme Court case which opened the door to the current left-wing understanding of the Commerce Clause as it applies to federal legislation. In that case, an Ohio chicken farmer who was growing wheat to feed his animals had a bigger crop than federal regulations designed to drive up wheat prices allowed. He was ordered to destroy his crops and pay a fine even though he had no intention of putting the wheat on the market.

The Supreme Court, full of FDR appointees at the time, ruled that something doesn’t have to be commerce to be regulated by the feds under the Commerce Clause. From Justice Robert H. Jackson’s decision…

Whether the subject of the regulation in question was ‘production,’ ‘consumption,’ or ‘marketing’ is, therefore, not material for purposes of deciding the question of federal power before us. That an activity is of local character may help in a doubtful case to determine whether Congress intended to reach it…. But even if appellee’s activity be local and though it may not be regarded as commerce, it may still, whatever its nature, be reached by Congress if it exerts a substantial economic effect on interstate commerce and this irrespective of whether such effect is what might at some earlier time have been defined as ‘direct’ or ‘indirect.’

Wickard has been the standard for Commerce Clause interpretation since then, though subsequent cases like United States v. Lopez (1995) have sought to whittle away some of its effects. No wholesale rejection of Wickard has come from the Court yet, though it appears there may be four justices willing to embark on such a path with the right case. A fifth might do so as well.

But it may be a long time before the Obamacare cases could reach the high court. In the meantime, bad judges appointed by Democrat presidents will continue to abrogate any responsibility to protect the public from federal overreach – and there is very little average Americans can do about them.



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