WRONG PRECEDENT, MR. PRESIDENT
by William Perry Pendley
September 1, 2011
On President Obama’s pre-Martha’s Vineyard holiday bus caravan swing through the Midwest, he reprised his role as a law school lecturer (he was never a professor) to muse on the outcome when the Supreme Court of the United States decides the constitutionality of the individual mandate in, and hence fate of, ObamaCare: “If the Supreme Court follows existing precedent, existing law, it should be upheld without a problem.” Obama likely meant Wickard v. Filburn, the 1942 decision in which the Court ruled that Congress, under its Commerce Clause authority, could bar excess wheat production on Roscoe Filburn’s Ohio farm, because, although the wheat never left the farm, “it exerts [an] effect on interstate commerce.”
ObamaCare’s individual mandate is decades and orders of magnitude, not to mention an entirely different Supreme Court and an evolving and expanding jurisprudence of liberty, removed from that Ohio wheat field. Stare decisis (“let the ruling stand”) notwithstanding, Wickard was decided wrongly; Filburn did not introduce his produce into interstate commerce; had he done so, the facts would have supported the ruling. Nevertheless, Filburn did make a decision to engage in activity; he did grow a crop; and, had he chosen to do so; he could have introduced that crop into interstate commerce.
Filburn’s distant Ohio descendant, who lives now under the mandate that he purchase health insurance, or pay a fine, or run afoul of the IRS, has made no similar set of decisions. His existence as a U.S. resident subjects him to Congress’s authority, which the Congressional Budget Office calls “unprecedented.” To the contrary ruled a federal district court in upholding the mandate’s constitutionality; it is not his existence, but the “mental activity” in which he engages when he decides whether or not to buy health insurance that falls under Congress’s power. To call this rationale Orwellian gives George Orwell too much credit. Instead, it is one with the Tom Cruise’s movie, Minority Report, which foretold a time in Washington, D.C. when people will be arrested, charged, and punished for contemplating the commission of a crime.
Obama’s flippant response in Minnesota—especially after the U.S. Court of Appeals for the Eleventh Circuit ruled against ObamaCare—ignores the effort that federal judges, not to mention the lawyers who briefed them, have undertaken in their analyses of the mandate’s constitutionality. Even a cursory review of the various opinions reveals that more is involved than a cite to Wickard as the controlling touchstone. One conclusion is clear from all that has been written, with the Fourth Circuit yet to be heard from: Wickard neither compels nor predicates the result regarding ObamaCare’s unprecedented mandate.
The better predictor of the result next June—both because it provides insight into the mind of the justice who will determine its fate (J. Kennedy) and because it provides a sense of the view of the Founding Fathers as to the purposes for which they wrote the Declaration of Independence, the Constitution, the Bill of Rights, and the rulings of the Supreme Court over the Nation’s early decades—is U.S. v. Bond.
Carol Anne Bond is a Lansdale, Pennsylvania woman who, on learning her husband had fathered a child with her best friend, sought to punish his paramour by lacing her mailbox with toxic chemicals. Charged with violating a federal law enacted to implement a chemical weapons treaty, she challenged the law’s constitutionality. The Third Circuit held that only Pennsylvania had standing to argue that the federal law violated the Tenth Amendment. The Supreme Court, with Justice Kennedy writing for the Court, reversed: “The individual...can assert injury from government action taken in excess of the authority that federalism defines [because] ‘state sovereignty is not just an end in itself[;] federalism secures to citizens the liberties that derive from the diffusion of sovereign power.’”
Thus the question for the Court: what liberty remains if the Commerce Clause fails to limit the power of Congress?
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