No, Congress Has Not Regulated Inactivity Before


Regulated wheat.

Has the Supreme Court previously ruled that Congress can regulate inactivity? Harvard Professor Mark Tushnet says it has

Opponents of the law insist that Congress has never ordered people to buy something — that is, to regulate inactivity as opposed to activity.

But Congress has successfully regulated inactivity, said Professor Tushnet of Harvard. In a famous 1942 case, Wickard v. Filburn, the Supreme Court ruled in favor of federal quotas, meant to support wheat prices, that restricted how much farmers could grow. In the case, Roscoe Filburn grew more wheat than permitted; he argued that the wheat was for his own use.

Professor Tushnet noted that Mr. Filburn's actions could be described as a failure to purchase wheat in the general market — a situation similar to that of people who do not buy health insurance.

"If the constitutional challenge has any legs, it is on the ground that it is unprecedented — Congress has never done it before," he said. "Well, it turns out that Congress has done it before."

Yeah…but no. This is a very creative reading of Wickard v. Filburn, but it does not fit the facts of the case.

Regardless of your opinion regarding the merits of the Court's decision, it was clearly about the regulation of an activity—specifically, growing wheat for personal use in excess of federally regulated quotas.

In 1941, Congress gave the Department of Agriculture the authority to set out capped quotas for farmers growing wheat. Roscoe Filburn was given an 11.1 acre allotment, but chose to grow just shy of 23 acres instead, using the "extra" wheat as feed on his farm. He was fined $117.11 for going over his allotted acreage. He took the government to court and lost, with the Court ruling that his activity, despite its local, non-commercial character, exerted "a substantial economic effect on interstate commerce." The logic behind this justification was that Filburn might buy less wheat on the market later as a result of growing excess wheat for personal use.

But he wasn't fined for not buying wheat. And the Court didn't approve regulation of a fine for a non-purchase. He was clearly fined for making the affirmative choice to grow more than his regulated quota. And it was that fine for engaging in a particular, self-directed activity—growing wheat beyond his allotted acreage—that the Court ruled acceptable.

So no, Congress hasn't regulated inactivity before. If anything, the justification for the mandate is the exact opposite of the justification for fining Filburn. In that case, the Court said it was permissible to fine someone for engaging in a particular local activity (growing more wheat than allowed by a federal quota) because it might later lead to inactivity (purchasing less wheat on the market).

With the mandate, the administration is arguing that it is justifiable for Congress to regulate inactivity (not purchasing health insurance) because it might later lead to activity (purchasing health care some other way, or perhaps relying on "free" care and shifting the cost to others).

Hanging over all of this, of course, is the crucial matter of individual choice. Filburn was fined for an activity in which he chose to participate—growing wheat beyond his quota. The mandate, on the other hand, is not a response to any comparable affirmative choice. It applies to nearly everyone simply because of the fact that they are alive.

Here's Reason.tv on wheat, weed, and ObamaCare:

Reason's Nick Gillespie interviewed Tushnet about the High Court in 2005

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  1. Of course Prof. Tushnet’s reading of Wickard is creative. From our good ol’ friends at Wikipedia: “One of the more controversial figures in constitutional theory, [Tushnet] is identified with the Critical Legal Studies movement and once stated in an article that, were he asked to decide actual cases as a judge, he would seek to reach results that would ‘advance the cause of socialism.'”

    1. You know who else wanted to “advance the cause of socialism”….

      1. Presidential Candidate Barack Obama?

        (As opposed to president Barack Obama who seems to wish to advance the cause of fascism.)

        1. To paraphrase Mario Cuomo, you campaign in socialism and govern in fascism.

    2. He also authored a book called “Taking the Constitution Away from the Courts”. Hey, Mark, you’re doing it wrong.

  2. Also, not purchaseing health insurance, in the context of rules forbidding risk-based pricing and exclusions for preexisting conditions, isn’t just a decision about how to purchase health care. It’s a decision not to finance the health care of people who are are higher risk of illness.

    But the rules forbidding risk-based pricing and exclusions of pre-existing conditions are precisely what the government claims make the mandate “necessary” under the necessary and proper clause.

    Without the new regulations, it’s not necessary to force people to buy insurance, but with the regulations, not purchasing insurance ISN’T just about ones own future health care expenses.

  3. Professor Tushnet noted that Mr. Filburn’s actions could be described as a failure to purchase wheat in the general market ? a situation similar to that of people who do not buy health insurance.

    The good professor is an idiot or a miscreant. The Wickard case is NO different than local regulations imposing a 10″ limit (for instance) on how much you can grow the grass in your lawn before being required to mow it. If you don’t happen to HAVE a grass lawn, then the rule does not apply.

    Same case with Wickard, which was very well explained above by Suderman.

  4. “It applies to nearly everyone simply because of the fact that they are alive.”

    “But that’s how the ‘interstate commerce clause’ can be interpreted: to mean that everybody stepping on US soil belongs to the Fed Gov,” saz MNG…

    1. And everybody not stepping onto U.S. soil is a non-person with no rights, so there you have it. Congress can do any damn thing it wants.

  5. Maybe it can’t apply to buying insurance. But it can be applied to keep people from growing fruit or vegetables on their property solely for personal consumption or giving it away to friends, family, or neighbors.

    1. Plants produce oxygen. Heath insurance companies sometimes pay for oxygen tanks. Therefore, your plants are competing with health insurance companies, therefore you are engaging in commerce. Therefore, you can be told to buy health insurance!

  6. So this dumbass thinks growing wheat isn’t an activity. Amazing.

    1. But the wheat grows itself …

  7. OK, hows about this: the federal government has had, at various times, a military draft. Draftees often had to buy their own stuff. Remaining “inactive” when it came to certain regulations was forbidden. Case closed. ObamaCare is legal.

    1. Yeah!! Er… wut?

      1. I said case closed.

        1. OK, hows about this: You’ll get what you get AND LIKE IT!

    2. Is this the militia law argument? The claim was that that law was enacted under military powers, not under the commerce clause.

  8. Peter,

    It would have been nice if you had mentioned what a travesty the precedent itself was.
    It is an example of price controls, artificial scarcity of food, when hungry people needed cheaper food.

    1. In fairness to Suderman, the shortcomings of the Wickard decision have been discussed ad nauseum ’round these parts (not that I have any problem further beating that particular dead horse).

      1. I agree, but I felt it is important to challenge the precedent on it’s face, not argue about other unintended applications of the precedent.
        Just as laws mandating hospitals provide uncompensated medical care are used to justify further legilation mandating the purchase of health insurance.

      2. Well, that’s the problem isn’t it? The horse isn’t dead at all – it is dragging every rationalization of every power grab at the federal level into constitutional legitimacy. Regulate growing wheat? You betcha! Regulate growing pot? Yep, that too. Regulate not purchasing health insurance – you know it! Regulate eating your veggies? Not a problem – Sitting supreme court justice Elana Kegan admitted as much in her confirmation hearing (and still got confirmed! Advise and consent my ass!).

  9. The draft was enacted under the commerce clause? Weird.

    1. Why not?

  10. You mean is Filburn had just paid $117.11, we might have had some way better Commerce Clause jurisprudence at some later point. Damn.

    1. *if instead of is

    2. Yahbut that were a hell of a lot of money to a poor farmer back then.

      1. When adjusted for inflation, $117.11 equals $1,743.13 in 2010 US dollars.

  11. Maybe Tushnet should consider a career in Spin instead of Law.

    Under his reasoning, any affirmative choice could be considered the negative choice of another option, i.e., corn instead of wheat or Puccini instead of Verdi

  12. It was once legal for me to own a black guy. That precedent means that I can own one now, right? Right?

    1. Actually the law (constitution) changed in the interim, so no, that precedent wouldn’t be controlling in this instance.

      1. The Constitution only means what MNG says it means. I need a ruling from him.

        1. Well, by not buying a black person, you have made an economic decision that, in the aggregate, can affect commerce. I mean, what if everyone decided not to buy a black guy?

          Congress can “make rules about” people not buying other people, so there you go.

          1. Quotas and price supports are the only answer.

    2. The problem is that Wickard remains, if you’ll excuse the [removed]TM Nina Totenberg), “good law.”

      And building on it is Raich, which is equally “good” law.

      It would be nice if the Supremes grew some balls and overturned those two awful rulings, but I can’t imagine it happening in my lifetime – if ever.

      I’d be ecstatic if they overruled the Slaughterhouse Cases, at as far as its absurdly cramped and disingenuous reading of the Privileges or Immunities clause.

      1. “Removed”? WTF?

        I guess I can’t use the word “expression.”

    3. You must be incredibly long-lived for this to be so. Or did you mean it was once legal for others?

    4. Not directly. However, slavery is legal as a punishment for crimes, so you would merely need to find a black person that could be convicted of a crime, and convince the judge to issue “slavery” as a sentence.

  13. How much would the domain name MarkTush.net cost, and how legal would it be to have that guy’s picture on the homepage, backed up with bestiality images and links?

    Strictly for academic questioning, of course.

    1. Actually, with a name like Mark Tush it sounds more like a BDSM site….

    2. Tushnet sounds like mesh undies.

  14. Simply put. Fucking lawyers.

  15. Oh no, a crop circle. The aliens are back and they want cereal.

  16. So what would happen if I were a doctor and had a pharmaceutical factory in my garage and could provide for my own healthcare? Then would Mark Tushnet like me?

    1. I’m pretty sure that in lieu of health insurance, I could barter with my general practitioner to maintain his computers. Hell, I’ve helped maintain them for free in the past.

  17. I can make Wickard about inactivity, too. Watch this move:

    Wickard wasn’t fined for growing wheat; he was fined for not doing every conceivable thing he could possibly do other than growing wheat. The government ordered him to do something other than grow wheat, and he didn’t do it.

    1. The government told him not to grow wheat, and he didn’t not grow the wheat they told him not to grow. By not not growing the wheat, he was engaging in an activity affecting commerce. What if he had not not grown corn instead, I wonder?

      1. Then instead of the government wheat-holing him…

  18. Like it or not, the Supreme Court decides cases and then cooks up the rationale later. Whether the insurance mandate should be permitted is probably already decided in the minds of the individual judges.

    Yes, I’m a cynic.

    1. Unfortunately (or fortunately), I think this is quite close to the truth.

    2. Oh I’m sure that on more than one occasion, a justice’s instruction to his favorite clerk was along the lines of “find me cases and write me an analysis that supports the conclusion that … “.

  19. Didn’t the Militia Act of 1792 require all adult white males of military age to own a gun?

    1. Congress never claimed it was passing the act under Commerce Clause powers. It was supposedly justified by its military powers.

    2. Yes. However, no one was require to BUY a gun.

    3. Yes. However, no one was required to BUY a gun.

  20. “Professor Tushnet noted that Mr. Filburn’s actions could be described as a failure to purchase wheat in the general market…”

    The court remanded the case to the trial court to determine how much wheat Filburn would be required to buy.

    I don’t recall that part.

  21. Here’s the counterargument: So?

    Here’s a longer one: is that “Necessary and Proper” clause only there as decoration?

    Okay, let’s agree to assume the premise: that Congress has not regulated inactivity before.

    The problem is that without making assumptions, we may say with certainty that the Supreme Court has never drawn a legal distinction between economic activity and inactivity before… even when given the opportunities to do so.

    Here’s Antonin Scalia on inactivity and regulation:

    “It would not make much sense to say that one may not kill oneself by walking into the sea, but may sit on the beach until submerged by the incoming tide; or that one may not intentionally lock oneself into a cold storage locker, but may refrain from coming indoors when the temperature drops below freezing. Even as a legislative matter, in other words, the intelligent line does not fall between action and inaction.”

    And here’s Scalia on interstate commerce vis a vis Congressional power:

    “As this Court has acknowledged since at least United States v. Coombs (1838), Congress’s regulatory authority over intrastate activities that are not themselves part of interstate commerce (including activities that have a substantial effect on interstate commerce) derives from the Necessary and Proper Clause.
    ?And the category of “activities that substantially affect interstate commerce” is incomplete because the authority to enact laws necessary and proper for the regulation of interstate commerce is not limited to laws governing intrastate activities that substantially affect interstate commerce. Where necessary to make a regulation of interstate commerce effective, Congress may regulate even those intrastate activities that do not themselves substantially affect interstate commerce.”

    You don’t got Scalia, you don’t got the votes.

  22. I have read somewhere on the news that something like “Wise Health Insurance” is offering lowest health insurance rate for low and middle income families so search online and find them.

  23. ObamaCare is dependent upon the Individual Mandate, therefore the Individual Mandate is Constitutional.


  24. He has a point insofar as the non-purchase was the requisite link to “interstate commerce”:

    Grow ones own wheat for ones own use means…
    Non-purchase of wheat on the interstate market means…
    Falls within the scope of Congress’ ICC power.

    Without the non-purchase step, Filburn’s wheat would be purely local and thus out of the reach of Congress. In fact, the preceding step (growing ones own wheat) is only relevant to the specific law in question, but wholly irrelevant to the question of whether Congress has regulatory power over whatever the preceding step might be via the ICC. If Filburn had been growing corn instead of wheat, he would not have run afoul of the wheat cap, but he could equally be reached via some other Congressional law.

    Provision ones own healthcare means…
    Non-purchase of insurance on the market means…
    Falls within the scope of Congress’ ICC power.

    As written, PPACA skips the first step. All they would need to do to bring it in line with Wickard is simply cap the amount of money one can spend on ones healthcare. Simple.

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