Thomas Sowell

When a 1942 Supreme Court decision that most people never heard of makes the front page of the New York Times in 2012, you know that something unusual is going on.

What makes that 1942 case -- Wickard v. Filburn -- important today is that it stretched the federal government's power so far that the Obama administration is using it as an argument to claim before today's Supreme Court that it has the legal authority to impose ObamaCare mandates on individuals.

Roscoe Filburn was an Ohio farmer who grew some wheat to feed his family and some farm animals. But the U.S. Department of Agriculture fined him for growing more wheat than he was allowed to grow under the Agricultural Adjustment Act of 1938, which was passed under Congress' power to regulate interstate commerce.

Filburn pointed out that his wheat wasn't sold, so that it didn't enter any commerce, interstate or otherwise. Therefore the federal government had no right to tell him how much wheat he grew on his own farm, and which never left his farm.

The Tenth Amendment to the Constitution says that all powers not explicitly given to the federal government belong to the states or to the people. So you might think that Filburn was right.

But the Supreme Court said otherwise. Even though the wheat on Filburn's farm never entered the market, just the fact that "it supplies a need of the man who grew it which would otherwise be reflected by purchases in the open market" meant that it affected interstate commerce. So did the fact that the home-grown wheat could potentially enter the market.

The implications of this kind of reasoning reached far beyond farmers and wheat. Once it was established that the federal government could regulate not only interstate commerce itself, but anything with any potential effect on interstate commerce, the Tenth Amendment's limitations on the powers of the federal government virtually disappeared.

Over the years, "interstate commerce" became magic words to justify almost any expansion of the federal government's power, in defiance of the Tenth Amendment. That is what the Obama administration is depending on to get today's Supreme Court to uphold its power to tell people that they have to buy the particular health insurance specified by the federal government.

There was consternation in 1995 when the Supreme Court ruled that carrying a gun near a school was not interstate commerce. That conclusion might seem like only common sense to most people, but it was a close 5 to 4 decision, and it sparked outrage when the phrase "interstate commerce" failed to work its magic in justifying an expansion of the federal government's power.


Thomas Sowell

Thomas Sowell is a senior fellow at the Hoover Institute and author of The Housing Boom and Bust.

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