ABC News introduces its readers to Roscoe Filburn, the Ohio farmer whose 1942 loss at the Supreme Court now serves as one of the key legal precedents cited by the Obama administration in its defense of the Patient Protection and Affordable Care Act's individual mandate:
[Filburn] felt wronged by Congress and, particularly, a law that was meant to regulate wheat prices. It had been Filburn's practice to grow wheat in the fall and use it in part to feed livestock on his farm and make flour for home consumption.
But the Agricultural Adjustment Act of 1938 limited the number of acres Filburn could plant. The law allotted him 11.1 acres, and he harvested 23 acres. He was subject to a penalty of 49 cents a bushel for the wheat that went over the limit. He sued.
Filburn said the law went beyond the reach of Congress. He argued the government had no business regulating wheat that was local in nature with only an indirect effect upon interstate commerce. His wheat was not being sold on the open market, it was for his own personal use.
The Supreme Court unfortunately disagreed, ruling in Wickard v. Filburn that growing and consuming wheat entirely on your own farm still counted as interstate commerce that could be regulated by the federal government under the Commerce Clause. In 2005, the Court reinforced this decision, holding in Gonzales v. Raich that medical marijuana cultivated and consumed entirely within the state of California also counted as commerce "among the several States" and was therefore open to regulation under the Controlled Substances Act. That's the case where Justice Clarence Thomas remarked, "If Congress can regulate this under the Commerce Clause, then it can regulate virtually anything—and the Federal Government is no longer one of limited and enumerated powers."
The legal challenge to the health care act therefore faces a significant hurdle. If Wickard and Raich do in fact allow Congress to "regulate virtually anything" under the Commerce Clause, why can't Congress force us to buy health insurance? The answer, according to the law's opponents, is that while Wickard and Raich allow Congress to regulate economic activity, the failure to buy or secure health insurance is by definition an inactivity, which means that Wickard and Raich do not apply and the mandate may be struck down for exceeding Congress' powers under the Commerce Clause without violating those precedents. Since Justice Antonin Scalia famously sided with the majority in Raich, he may find this approach particularly attractive. The problem with it, as my colleague Jacob Sullum has pointed out, is that while the activity/inactivity distinction may defeat the individual mandate, it will not correct the Court's previous errors in Wickard and Raich. Old Roscoe Filburn may have to wait a little longer for justice.