It's A Gray Area: Health-care plan arguments centered around 1942 case

As I am writing this column, the U.S. Supreme Court is hearing arguments about whether the federal government has the power under the commerce clause of the Constitution to order private parties to buy health insurance.

Being a Libertarian, I'd argue the answer is no. But because this is such a large topic of conversation, I want to give you some of the arguments that the Supreme Court will be considering, so you can more easily follow along.

The genesis of this argument goes back to the 1942 case of Wickard v. Filburn. That case involved a farmer named Roscoe Filburn who was growing wheat for consumption on his own farm. But this was during the Great Depression, and the federal government had established a policy to increase prices of wheat by buying huge amounts of it and also reducing its export. As a further part of this policy, the government established limits of how much per acre a farmer could grow, and Filburn had exceeded those limits. Thus Filburn was ordered to destroy the excess wheat he grew, and to pay a fine. He appealed.

The Supreme Court held that even though Filburn used all of his own wheat himself, and had no intention to sell any of it, he was still affecting interstate commerce. Why? Because the limiting of production was intended to drive up the price of wheat, and if he did not raise his own wheat, Filburn would likely be forced to buy other wheat that might have traveled in interstate commerce. Therefore, Congress had the authority to regulate even Filburn's own homegrown wheat.

This precedent was generally followed without interruption until 1995, when the Supreme Court heard the case of United States v. Lopez. Alfonso Lopez Jr. had been found carrying a handgun within a certain distance of a school, and eventually was convicted of a violation of the federal Gun-Free School Zones Act of 1990.

But in Lopez, the Supreme Court held that the scope of the commerce clause was not great enough for Congress to regulate the carrying of handguns by private parties, especially when there was no evidence that carrying the guns affected the economy "on a massive scale." In this ruling, the court rightfully described Wickard v. Filburn as "perhaps the most far-reaching example of commerce clause authority over intrastate commerce." Yes, the authority was still far reaching, but there were limits. Of course, this type of local conduct could still be controlled by the states, but not by the federal government.

Those limits were re-enforced in 2000 in the case of United States v. Morrison. In that case it was alleged that a female freshman at Virginia Tech had been repeatedly raped by two members of the school football team. But because issues of consent were raised, the alleged perpetrators were never charged by the state or punished by the school. So the young lady brought a civil lawsuit in federal court under the Violence Against Women Act of 1994. But once again the Supreme Court held that there was no authority under the commerce clause of the U.S. Constitution for this statute to be enforced for this local activity.

So the precedent for restricting the intrusion of the federal government into transactions that did not affect interstate commerce "on a massive scale" was building, until the Supreme Court decided the case of Gonzalez v. Raich in 2005. Angel Raich is young lady who is actually dying from several types of cancer, and she was growing medical marijuana in her own yard and smoking it herself under a medical doctor's recommendation in accordance with California law. Nevertheless, she was prosecuted by the federal government and convicted for a violation of federal drug laws.

Relying heavily once again upon Wickard v. Filburn, the Supreme Court upheld the federal prosecution of Angel Raich under the commerce clause. The rationale was, just like with homegrown wheat, homegrown marijuana could compete with marijuana that could have traveled in interstate commerce.

Why do these cases affect the issue of governmental health care? Using the rationale of Wickard v. Filburn and Gonzalez v. Raich, the rocks in your back yard could also be regulated by the federal government. Thus, as the argument goes, if those can be regulated, so can everyone's health care!

Why? Because if one person does not buy health insurance, that will affect the national price of insurance for everyone else.

So this would allow the federal government to regulate even these private purchasing decisions, and force people to buy what they may not even want!

As we have seen, the precedent from the Supreme Court of allowing the federal government to regulate purely private activity and intrastate commerce was on the decline until the so-called conservatives caused it to be revived by pursing their so-called War on Drugs. And now that pursuit could very well force us further along in the destruction of what was once the best system of health care on Earth by putting the federal government in a position to dictate who buys what, when and for how much. And that is what the Supreme Court is contemplating.

JAMES P. GRAY is a retired judge of the Orange County Superior Court, the author of "A Voter's Handbook: Effective Solutions to America's Problems" (The Forum Press, 2010), and can be contacted at

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