Long ago in jolly old England it was a crime to hunt deer. Deer in England, you see, belonged to the crown. Poaching â€œthe Kingâ€™s royal deerâ€ might get you hanged, and with a silken rope. So Englishmen sailed across the stormy Atlantic to the New World for a little game. And they found it, in mind-boggling abundance. And with all the free animal protein they grew taller and stronger.
Deer. Itâ€™s whatâ€™s for dinner.
Weâ€™re the descendants of deer slayers. But, for the last 69 years Americans have lived under a dispensation reminiscent of that under English kings: the Supreme Court ruling in Wickard v. Filburn (1942). With this decision, it became illegal in America to cultivate oneâ€™s own land for the purpose of feeding oneself and oneâ€™s family. (What? You thought you were free?)
Wickard is worse than the situation in old England because it regulates what one can do with oneâ€™s own property, not the kingâ€™s land nor even public lands, but oneâ€™s own land. Whatâ€™s the use of owning land if you canâ€™t farm it?
In the recently concluded Thomas More Law Center, et al. v. Obama, et al., the Sixth Circuit found that the â€œindividual mandateâ€ in ObamaCare is constitutional. In the ruling there were 20 iterations of the word â€œWickard,â€ including this one on page 20:
Similar to the causal relationship in Wickard, self-insuring individuals are attempting to fulfill their own demand for a commodity rather than resort to the market and are thereby thwarting Congressâ€™s efforts to stabilize prices. Therefore, the minimum coverage provision is a valid exercise of the Commerce Power because Congress had a rational basis for concluding that, in the aggregate, the practice of self-insuring for the cost of health care substantially affects interstate commerce.
â€œStabilize pricesâ€? Everything Congress touches suffers from raging price inflation, from healthcare to higher education to what have you. If Congress wants to lower prices, then Congress should get out of their so-called â€œmarket,â€ and let the real market emerge.
Though the Sixth Circuitâ€™s decision certainly disappoints any red-blooded meat-eating American, they may have redeemed themselves in the last three paragraphs of the ruling, opening up the way for further clarification from the Supreme Court:
In Lopez the Supreme Court recognized that the direction of its existing Commerce Clause jurisprudence threatened the principle of a federal government of defined and limited powers, and it began the process of developing a new jurisprudence more compatible with the Constitution. That process was interrupted by Raich, where a majority of the Court was unwilling to expressly overrule a landmark Commere Clause case in Wickard, which had been the law of the land for over sixty years.
Notwithstanding Raich, I believe the Court remains committed to the path laid down by Chief Justice Rehnquist and Justices Oâ€™Connor, Scalia, Kennedy, and Thomas to establish a framework of meaningful limitations on congressional power under the Commerce Clause. The current case is an opportunity to prove it so.
If the exercise of power is allowed and the mandate upheld, it is difficult to see what the limits on Congressâ€™s Commerce Clause authority would be. What aspect of human activity would escape federal power? The ultimate issue in this case is this: Does the notion of federalism still have vitality? To approve the exercise of power would arm Congress with the authority to force individuals to do whatever it sees fit (within boundaries like the First Amendment and Due Process Clause), as long as the regulation concerns an activity or decision that, when aggregated, can be said to have some loose, but-for type of economic connection, which nearly all human activity does. See Lopez, 514 U.S. at 565 (â€œ[D]epending on the level of generality, any activity can be looked upon as commercial.â€). Such a power feels very much like the general police power that the Tenth Amendment reserves to the States and the people. A structural shift of that magnitude can be accomplished legitimately only through constitutional amendment.
If Wickard is constitutional, then, just as the above suggests, Congress can regulate victory gardens, tomatoes cultivated on backyard patios, whatever it chooses. Congress can tell the fat man to eat less, the smoker and drinker to abstain, and the indolent to start jogging, just so that Congress can â€œstabilize pricesâ€ and make its feeble healthcare system feasible. And all justified by that tiny little Commerce Clause.
Wickard is especially vile in that it happened in the Depression era, when farmers had suffered devastating droughts that wiped out their crops. Folks were having a hard time feeding themselves; some even resorted to hunting game. Coon and possum appeared on the plates of country folk. Nonetheless, the Roosevelt administration actually destroyed food and livestock. (Shades of King John?)
And why were the feds destroying food? Why, to prop up farm prices, of course.
Wickard is a profoundly un-American ruling that is being used to justify a profoundly un-American law: ObamaCare. It tells the man who just wants to be let alone on his own land that thatâ€™s impossible. It is a scandal that in nearly 70 years Congress has not overridden this vile decision. (But then Congress does enjoy its power.)
Whether or not the federales are still inspecting small farms to make sure no one is cultivating contraband grain is beside the point: It is an affront to American values and is being used to justify every bad idea imaginable — Wickard must be nullified.
For a hundred years, America has been drifting more and more leftwards, until now weâ€™re getting fascistic readings of the Commerce Clause and Congress sees fit to require as a condition of citizenship something the Founders never intended. From bans on hunting to bans on farming to mandates to buy a product, Freedom is always under siege. So I leave you with this ditty:
Ah, my Geordie never stole nor cow nor calf,
He never hurted any,
Stole sixteen of the king’s royal deer,
And he sold them in Bohenny.