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The Secret To The Virginia Healthcare Decision

Unconstitutional? How can the mandate to buy health insurance be unconstitutional? It must be some kind of misguided resistance to progressivism. Or maybe it’s someone finally taking a stand against a power-grabbing government program.

But it’s actually about something else entirely. And if you don’t know what it is, you won’t understand why the Virginia court ruled the way it did. Here’s the secret:

The U.S. Constitution grants to the federal government certain powers. These are things like raising an army, controlling currency and establishing courts. It also gives it the power to regulate interstate commerce, through something called the “Commerce Clause.” Everything else is the domain of the states.

Notice that the Commerce Clause only gives the federal government power over interstate commerce. The word “interstate,” in 1789, was probably easy to understand. Since the original 13 states were more like little countries, than part of one big country, the idea of trading goods from one state to another was identifiable as a special kind of thing.

Now, commerce has become much more complicated over the last two centuries. So the Supreme Court has interpreted the Constitution to allow the federal government ever-greater powers under the Commerce Clause.

Perhaps the most famous case is from the New Deal era. It involves a wheat farmer in Ohio named Roscoe Filburn (if you read about the case, it’s usually called “Wickard.“)

In the 1930s, the federal government wanted to stabilize the price of wheat. It set quotas on how much wheat each farmer could grow. Farmer Filburn didn’t much like this, so he grew as much wheat as he wanted, for which he was fined. He sued, claiming that the federal government had no power to fine him for what he did on his own farm.

What if the wheat he grew was just enough for himself and his family? If he followed the quota, he would have to go to the market to buy wheat. What right did the government have to force him to buy something he didn’t want?

(It sounds a little familiar, doesn’t it?)

The Supreme Court didn’t think much of Farmer Filburn’s argument.

It decided that since Congress had the authority, under the Commerce Clause, to stabilize wheat prices, it logically followed that Congress could regulate anything that substantially affected that purpose. Mr. Filburn’s decision to grow more wheat than his quota could undermine the entire quota system. How? What if every farmer decided to grow their own grain, rather than buy it? The cumulative effect would reduce grain demand. That would destabilize wheat prices, and undermining the very purpose of an otherwise constitutional exercise of Congressional power.

You can see where this line of reasoning goes — it becomes hard to think of things that aren’t interstate commerce. Still, there are limits to the federal government’s powers, and there is disagreement among some constitutional law scholars on these issues.

And so this is what the Virginia decision is about. Does the Commerce Clause allow federal government to force a person to buy health insurance that he doesn’t want to buy? This is at least an interesting question about which there can be reasonable disagreement. But based on Farmer Filburn’s case, I wouldn’t bet that it will be upheld.

Indeed when the Supreme Court gets its hands on this Virginia case, I think it will recall this passage from its opinion from that long-ago case:

It is of the essence of regulation that it lays a restraining hand on the self interest of the regulated and that advantages from the regulation commonly fall to others. The conflicts of economic interest between the regulated and those who advantage by it are wisely left under our system to resolution by the Congress under its more flexible and responsible legislative process.  Such conflicts rarely lend themselves to judicial determination. And with the wisdom, workability, or fairness, of the plan of regulation we have nothing to do.

*This blog post was originally published at See First Blog*

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