Mr. Filburn's Chickens and Your Health Care

All of the talk about the recently passed health care reform act has centered on politics. The press has spent untold hours analyzing who are the winners and losers on the political scene as a result of the landmark bill. The story they are missing is the undercurrent that is reaching people who are typically apolitical. Places where political discussion had heretofore been taboo are now brimming with political dialogue. People are asking questions. People are reading about the founding of the country and the founding fathers and the founding documents.

Seventeen states have sued the Federal government over a plethora of issues relating to the health care bill, including special treatment afforded to certain states in exchange for a senator’s vote and states being ordered to provide substantially more services without necessary funding to the point of bankruptcy. But the heart of the constitutional question is the individual mandate.

Under the bill, all people are required to have health insurance or a pay a fine. This aspect of the bill will be regulated by the Internal Revenue Service which over the next four year will hire 17,000 additional agents to the tune of $1.5 billion. We will be required to provide proof of insurance and the acceptability of the policy minimally once each year….but I have read some articles that it might be required monthly.

The crux of the states’ argument is that the Federal government cannot mandate financial activity where there is none. This is not insurance for a driver’s license. Driving is a privilege. This simply is an individual being required by the government to enter into a contract with a private company to purchase government approved insurance because he/she is breathing.

Supporters say it is constitutional under the commerce clause allowing the Feds to regulate economic activity between the states. They claim the governing U.S. Supreme Court case on the matter is Wickard v. Filburn, decided in 1942. Mr. Filburn was a chicken farmer growing his own wheat to feed his chickens when the government passed wheat production quotas in order to keep the price of wheat on the open market from collapsing. Mr. Filburn argued that he wasn’t growing wheat to sell on the open market, but to feed his chickens on his own farm. The court ruled for the government saying that by growing his own wheat, Mr. Filburn would not buy wheat on the open market thereby affecting the price. That was commerce between the states, and Mr. Filburn had to destroy his wheat court. Only in America!

Opponents say that Filburn doesn’t apply here because some economic activity was actually taking place. Mr. Filburn was growing wheat. In the health care debate, the issue is can the government force economic activity where there is none. Is simply doing nothing subject to the power of the Federal government under the commerce clause?

Supporters say yes. Their argument is that by doing nothing, the person who doesn’t purchase insurance is passing on the cost of his health care to the rest of us. Of course, that assumes the uninsured individual is sick, or will be sick, and he can’t afford to pay for it himself. That, supporters say, is not fair.

Is “not fair” a legitimate test for the commerce clause? If the Supreme Court says yes, then the power of the Federal Government is endless. If autoworkers are laid off, can the government compel us to buy cars? If we are overweight, can the government compel us not to eat because it might increase the burden on the health care system? Can the government fine us if we fail to use sunscreen on the beach? The consequences are mind boggling.

This is scary stuff. The Filburn case is established precedent, and has been used by the courts over and over again to steadily increase the power of the Feds. But since 1995, the trend has been to re-examine Filburn, and the courts have begun to show a degree of restraint. The current court is basically a conservative court, with 4 left wing justices, 4 right wing justices, and a center/right swing vote.

If the court rules in favor of the bill, it will be saying that the power of the Federal government is limitless, a step they have so far been reluctant to take. I don’t think the court will be willing to jump into that abyss. I give even odds that at least this part of the health care reform act will be declared unconstitutional. And since it is the foundation upon which the entire bill is constructed, will lead to its complete demise.

Ruling in favor of the bill could lead to a constitutional crisis, and I believe violence. But there is an ace in the hole…a Constitutional Convention.