Health Care Predictions Post

Prediction time — by 9:00 Thursday morning enter your prediction.  To keep this somewhat simple, include (at a minimum) the outcome on the mandate and the related insurance reforms (guarantee issue and community rating), the vote, and who writes the opinion for the majority and the dissenters and a brief rationale.  If you want to weigh in on the Medicaid expansion feel free.

Example:

6-3 mandated overturned, but guarantee issue and community rating upheld.  Roberts for the majority, Kennedy concurring, and Thomas with the dissent.   Congress can dictate how insurance is sold and priced, is within its rights to require companies to sell to all comers, but it can’t make an individual purchase  it.

Just edit the post to insert your comments next to your handle.  Applogies if I’ve missed a name.

UPDATE:  How to read the ruling from SCOTUSblog

NoVA: Mandate is unconstitutional based on a vote of 5-4.  Based on this, the entire law goes down 6-3, as one of the liberals —  Sotomayor — joins with the rest majority on the severability issue and finds that Congress did not want the rest of the law without the mandate.   Roberts with the majority, Thomas with a concurrence that eviscerates the reasoning behind Wickard,  and Kagan with the dissent.

ScottIn a total shock, one liberal justice (not sure which one) decides to actually read the constitution and betray the cause, sending the mandate down in flames, 6-3. Then, in October, Yankees over the Nationals in 6. A-Rod goes 0 for the series, Strausberg get the win in both National victories, including only the second perfect game in World Series history, but Robinson Cano win Series MVP honors after hitting .515.

LMS  Mandate goes down 5-4 with Scalia writing a scathing critique of Obama as the majority.  I read about his dissent in the immigration case, took it all the way back to the civil war and free blacks from what I heard.  Ginsburg writes the dissent.  I’m not sure about the rest (or even the above frankly) but I don’t really expect the rest of the law to stand as is.  I’m just not enough of a lawyer (none at all actually) to know how they could frame it.

Yanks vs Angels in American League Playoffs…………..Trout saves game five for the Angels with an over the wall catch and two home runs but Weaver pitches the no hitter that clinches the AL title in six.

NoVA, what do we win if we get it right?  What’s the prize?

Mark  

1] Severance.  Addressed only by Thomas and Scalia in their dissents.

2] Medicaid.  Roberts writes majority opinion on all points.  6-3 uphold expansion, but more important to the state AGs, effectively 8 vote that the Congress cannot penalize a state for refusing the “voluntary” expansion.  Breyer dissents that the states can be penalized for refusing the “voluntary” expansion.    The state AGs get what they hired Clement to do.

3] Individual Mandate.  Congress can dictate how insurance is sold and priced, is within its rights to require companies to sell to all comers,  can’t make an individual purchase  it, but can tax the uninsured, which is what Roberts says is being done.  Upheld, 6-3, Scalia, Thomas, and Alito dissenting.  Breyer concurs but writes an opinion that Congress can make an individual purchase insurance if it is part of an overarching scheme to provide health care for all.  Kagan and Sotomajor join the concurrence but RBG does not, preferring to join Roberts and Kennedy in the Opinion.

4]  Anti-Injunction statute.  Roberts shuts that door on a second attack in 2015.  Scalia writes an attack dissent to this, suggesting that the first time someone pays the tax he should sue for a refund, because this whole scheme is an imposition on liberty.

I might change my mind, because like QB I really go back and forth on this.

Banned

Yello The insurance mandate is struck down 5-4 with Roberts writing the main opinion. Scalia’s concurring opinion mentions broccoli explicitly. Kennedy writes a separate concurring opinion undercutting Scalia and giving guidance on how a rewrite could pass muster.

Brent

Kevin

Michi

Entire law stands 6-3, Alito, Scalia and Thomas dissenting.  Georgia just opened the door to interstate commerce with its new health insurance law, and the Court has to address it; Roberts sees the long picture and decides to go with history.  Of course, I’m writing this without the benefit of having read any of the learned comments posted below, so. . .

Roberts writes the majority opinion, with Sotomayor and Ginsberg writing their own concurrences (if that’s the right term), and Scalia jumps the shark again in his dissent.

Scott–I never knew that you were such a romantic!  Cano batting 0.515?!?!!  🙂

Ashot

Mike Well, FWIW …

1) Anti-Injunction Act. 7-2, SCOTUS is not precluded from deciding. Roberts writes that the penalty is really a penalty and not a tax because the word “penalty” is written into the legislation. So, AIA doesn’t apply. Scalia/Thomas dissent.

2) Mandate. 6-3, mandate upheld. Roberts buys the argument that Congress can regulate the purchase of health care and that buying health insurance is the way that most health care is purchased. Since Congress has already mandated that emergency rooms must provide health care regardless of ability to pay (through EMTALA), they can assess a penalty for “costs.” The activity/inactivity argument is tackled using Judge Sutton’s formulation of self-insurance. Scalia/Thomas/Alito dissent, each writing a dissent and reading from the bench.

3) Severance. Mooted by the majority opinion upholding the mandate.

4) Medicaid expansion. 7-2, upheld. Roberts is unwilling to go back through all the Spending Clause cases and agrees with the lower courts that the expansion is consistent with Congress’ spending power. He is also unwilling to set a precedent for the application of coercion theory in this case. Scalia/Thomas dissent.

Dave!

TrollMcWing

Quarterback:  Upheld 5-4. Kennedy will not have the courage to do the right thing. As the Casey plurality opinion showed, he is more committed to protecting what he sees as Court legitimacy than to following the Constitution. [I have changed my mind several times recently, and may do so again! In fact, even now I am trying to imagine how he will rationalize upholding it. I would like to read all the Arizona opinions first but probably won’t have time.]

jnc4p

Fairlington Blade:  Mandate goes down 5-4, but I’ll go with severability. Most of the law stands.

okie

allbutcertain

bsimon

91 Responses

  1. Don’t have a real good record of tea reading for the court, but Ezra Klein is worth a read today:

    “How Republicans made it possible for the Supreme Court to rule against the mandate

    Posted by Ezra Klein on June 25, 2012”

    http://www.washingtonpost.com/blogs/ezra-klein/wp/2012/06/25/why-the-supreme-court-might-rule-against-the-mandate/

    A few specific passages bear noting directly:

    “Over the past two years, the Republican Party has slowly been building a permission structure for the five Republicans on the Supreme Court to feel comfortable doing something nobody thought they could do: Violate the existing understanding of the Commerce Clause and, in perhaps the most significant moment of judicial activism since the New Deal, overturn either all or part of the Affordable Care Act.”

    Apparently “existing understanding” is the progressive equilivent of Originalism in terms of constitutional interpretation.

    “For all the Republican Party had done to make the mandate’s constitutionality a live issue, the oral arguments gave their cause a credibility that strategic positioning couldn’t buy. The two arguments had met in front of the Supreme Court and the argument against the mandate’s constitutionality had clearly won. Everything up till that point could have been written off as conservatives convincing conservatives of something conservatives already wanted to believe. But on that day, the argument against the individual mandate met the argument for the individual mandate, and the argument against the individual mandate won — even in the eyes of the mandate’s supporters.”

    Facts still matter, but I believe oral argument is overrated in terms of persuading the Justices themselves. However, as a PR exercise for the general public it matters.

    “They had taken a legal campaign initially dismissed as a bitter and quixotic effort based on a radical and discredited reading of the Commerce Clause and given it sufficient third-party authentication to succeed. If the Supreme Court rules against the mandate, it will no longer be out on a ledge. It will be in lockstep with the entire Republican Party, many polls, a number of judges, the impression the public has gotten from the media coverage, and the outcome of the oral arguments.”

    “radical and discredited reading” = original understanding. Reacting against Commerce Clause overreach is apparently not just for originalists anymore.

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  2. nova

    Add okie, bsimon and allbutcertain. I was going to do it but saw you used a template I didn’t want to mess up. Can we use the template? I guess we’ll have to in order to state our predictions. Thanks for putting up the post.

    Just wanted to say how much I miss Johnny Carson. No one else comes close IMO.

    And I’m still thinking about my predictions.

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    • lms:

      Just wanted to say how much I miss Johnny Carson.

      PBS did an outstanding documentary on him. If you have an iPad, you can download the PBS app for free and get access to it, again for free. (Well, you sort of already paid via taxes.) I definitely recommend it.

      You’ll also find a documentary on Harper Lee that was also excellent.

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  3. i figured it would be easier for people to edit the post to add a prediction. that way we don’t have to go through comments to see the starting off point. and i added the 3 names i missed.

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  4. I have doubts about Roberts, too.

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  5. to be honest, i never really saw Carson. I was 14 13 when he retired. But just thought it was the best cultural reference. so i suppose that’s an example of staying power and reach.

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  6. I tend to agree with QB. Gonzales v. Raich was a major disappointment for me with regards to the possibility of undoing Wickard v Filburn and Commerce Clause overreach in general.

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  7. Thanks Scott, I don’t have an IPhone but I’ll peruse PBS and see if I can find it. I used to stay up really late…………..

    Whatever prediction I put up re SCOTUS and the mandate etc. will be very Carnac-ish.

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  8. ““How Republicans made it possible for the Supreme Court to rule against the mandate”

    Juicebox’s editor has a real Scooby-Doo feel for headline writing. I expect a quote in the body of the article from Obama stating “And I would have gotten away with it too, if it weren’t for those meddling kids!”

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  9. I in turn tend to agree with jncp on the disappointment of Raich, although I think this case can easily be distinguished.

    To uphold the mandate, the bridge they have to cross is action = inaction, commerce = existence. They have to adopt a God-like, omniscient perspective that everyone’s entire life can be viewed as one big commercial transaction–indeed all lives are a web of commercial transactions.

    But I have some “faith” in Kennedy to go along with this sophistry. It is all the more sophistry when you consider that the real intent of the Commerce Clause was to prevent interstate protectionism.

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    • qb:

      To uphold the mandate, the bridge they have to cross is action = inaction, commerce = existence.

      The whole notion has a truly through-the-looking-glass quality to it. That’s why I posted what I did the other day. How is it even possible that reasonable people don’t recognize this proposition as even marginally controversial? What kind of bizarro world do we live in when seemingly intelligent people not only think that action = inaction, but that the notion is so self-evident no objection could possibly be entertained seriously?

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  10. A prime example of a progressive/liberal arguing for stare decisis for thee, but not for me:

    “Scalia’s scary thinking
    The Supreme Court justice actually believes the things he says and writes, even though they make no sense
    By Paul Campos”

    http://www.salon.com/2012/06/24/scalias_scary_thinking/singleton/

    One useful note from the article that helped clarify my own thinking with regards to Raich, Wickard & the ACA was the quote from Scalia that showed his conflation of the Commerce Clause and the Necessary and Proper clause:

    ““where Congress has authority to enact a regulation of interstate commerce, it possesses every power needed to make that regulation effective.””

    I think this sort of reasoning is what makes drawing a distinction between the ACA mandate and Wickard & Raich harder than some allow for, if you are concerned about trying to be consistent.

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  11. “That is a perfect description of Wickard – a case that for many decades was so uncontroversial that any suggestion it should be overturned would have been treated as nothing less than bizarre and, indeed, as an attack on the fundamental structure of the modern administrative state.”

    The barbarians are at the gates and Scalia is giving them the keys!

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  12. If the Justices decide to uphold the mandate, they (Roberts?) will argue that buying versus not-buying health insurance is not an activity/inactivity dichotomy, but an affirmative private insurance/self-insurance choice.

    I too am vacillating on the outcome. Well, at least for the mandate question.

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    • Mike:

      If the Justices decide to uphold the mandate, they (Roberts?) will argue that buying versus not-buying health insurance is not an activity/inactivity dichotomy, but an affirmative private insurance/self-insurance choice.

      Perhaps that is right, but if so it won’t make much sense. Self-insurance requires actually setting aside dedicated funds in an amount determined through actuarial tables for a specific insurable risk. Someone who says screw it, I’m not buying insurance, or someone who says I’d rather spend my money on X than on an insurance premium, is not ‘self-insuring” in any way whatsoever.

      There is no reasonable way around the fundamental distinction between doing something and not doing something.

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  13. Scott,

    Agreed. I think some of it is hubris, some of it propaganda.

    The necessary and proper point raised by jnc is perhaps the best one for the left. But it also depends on draining N&P of any real substance. When I see “scholars” claim ACA’s constitutionality is open and shut, I just roll my eyes. I know they are dishonest or are so lost in the weeds that they’ve lost touch with anything like constitutional principle, and that includes Charles Fried. But then Fried never was a constitutional conservative.

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  14. “but an affirmative private insurance/self-insurance choice.”

    And that would be sophistry. Self-insurance is a meaningless term here. It just means, not buying insurance.

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  15. That self insurance claim seems weird. If I’m not actively buying, say, a ticket on Virgen for a trip into outer space, that means I’m actively making my own spacecraft to take myself into space?

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  16. You are engaged in an infinite number of transactions by not engaging in them … or something like that.

    By not exercising or eating right, you are making a decision to consume more health care–commerce.

    By not buying weed killer now, you are making a decision to (1) weed by hand, (2) buy more week killer later, (3) infest your neighbors with dandelions, so they need weed killer–commerce.

    By not paying for car maintenance, you are choosing to maintain it yourself and may need a new car sooner — commerce.

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  17. “ScottC, on June 25, 2012 at 12:39 pm said:

    What kind of bizarro world do we live in when seemingly intelligent people not only think that action = inaction, but that the notion is so self-evident no objection could possibly be entertained seriously?”

    A world where the Federal government can prevent you from growing wheat in your own back yard under the guise of regulating interstate commerce. I.e. the bridge to the leviathan state was already crossed. Why draw a line now?

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  18. “quarterback, on June 25, 2012 at 1:36 pm said:

    You are engaged in an infinite number of transactions by not engaging in them … or something like that.

    By not exercising or eating right, you are making a decision to consume more health care–commerce.

    By not buying weed killer now, you are making a decision to (1) weed by hand, (2) buy more week killer later, (3) infest your neighbors with dandelions, so they need weed killer–commerce.

    By not paying for car maintenance, you are choosing to maintain it yourself and may need a new car sooner — commerce.”

    These examples can all flow straight from the precedent first set by Wickard. By growing your own wheat you are electing not to enter the stream of commerce to buy wheat produced under the quota system thereby undermining the price supports.

    It’s but a small shift to say that even if you don’t grow your own wheat you should still be compelled to purchase a fixed amount of wheat as the court found that a quota system to maintain a price floor for the benefit of producers was a compelling state interest.

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  19. Scott:

    Someone who says screw it, I’m not buying insurance, or someone who says I’d rather spend my money on X than on an insurance premium, is not ‘self-insuring” in any way whatsoever.

    Well, the counter argument to that is that not buying insurance and not saving for medical costs is also a form of self insurance that requires “something else — good fortune or the good graces of others” when the need for health care arises.

    (edited for clarity?)

    Try that again. Not preparing for the risk of needing money to pay for health care (either by buying insurance or saving up) is also a form of self insurance that requires “something else — good fortune or the good graces of others when the need for arises.”

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    • Mike:

      Not preparing for the risk of needing money to pay for health care (either by buying insurance or saving up) is also a form of self insurance that requires “something else — good fortune or the good graces of others when the need for arises.”

      No, it really isn’t a “form of self insurance”. Self insurance means something in particular, and that something is not simply “not buying insurance”.

      The whole argument smacks of exactly what it would be…an attempt to justify a decision made irrespective of what the constitution actually says and what words mean, rather than an attempt to understand and then apply what the constitution says and what the words mean.

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  20. jnc,

    I disagree that those examples can all flow straight from Wickard. They have to cross the action/inaction bridge. No one thinks Wickard was more wrong than I do, but this goes farther.

    As for “self-insurance,” companies can be required to meet self-insurance requirements by states as conditions for doing business. If ACA is justified as self-insurance, then it is just what critics have always said: a mandate to buy insurance as a condition of being alive.

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  21. “Why draw a line now?

    uptick in wheat allergies? forcing us to buy wheat has increased allergies, thus increasing our health care costs. so based on new information, SCOTUS can ignore earlier case law and overturn Wickard. for the children.

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  22. Still, everyone impacts interstate commerce by not engaging in it, thereby engaging in it.

    (Actually, I think that is a perfect distillation of the reasoning.)

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    • I agree with QB that if the commerce clause is used to justify forcing the purchase of insurance from a private carrier this goes beyond W. v. F.

      In employment law we have gone beyond that outpost for years under the LMRAs. Just one example:

      An estimated 5 million workers are required to wear respirators in 1.3 million workplaces throughout the United States.

      OSHA says that if the workplace environment is oxygen compromised, employer must supply appropriate respirators, there are regs about what to buy in what situation.

      It is easy for a state to adopt this kind of law by way of its police and public safety power, but for the Feds to do it requires the power of the commerce clause.

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  23. It’s not a big shift from the core reasoning in Wickard, given that the government was directly arguing over the impact of something not entering the stream of commerce and therefore being a valid target for Federal regulation.

    The decision itself didn’t hing on activity or inactivity, but rather the “effects” of any behavior on other regulated commerce. This is a direct analogy to the “effect of the uninsured” arguments of the ACA mandate supporters.

    “But even if appellee’s activity be local and though it may not be regarded as commerce, it may still, whatever its nature, be reached by Congress if it exerts a substantial economic effect on interstate commerce and this irrespective of whether such effect is what might at some earlier time have been defined as ‘direct’ or ‘indirect.'”

    and

    “The stimulation of commerce is a use of the regulatory function quite as definitely as prohibitions or restrictions thereon. This record leaves us in no doubt that Congress may properly have considered that wheat consumed on the farm where grown, if wholly outside the scheme of regulation, would have a substantial effect in defeating and obstructing its purpose to stimulate trade therein at increased prices.””

    http://en.wikipedia.org/wiki/Wickard_v._Filburn

    The “whatever its nature” and “wholly outside the scheme of regulation, would have a substantial effect in defeating and obstructing its purpose” are a blank checks.

    Wickard ended the Commerce Clause as an enumerated limited power and instead replaced it with a blanket grant of general regulatory power. I think we forget just how bad of a decision it was.

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  24. jnc,

    I don’t forget how bad it was. I’ve never gotten over my shock from law school.

    I also don’t disagree that the liberals will rely on it.

    But it did concern “activity”–growing of wheat. The proponents of ACA have to invoke time dilation to find activity–you aren’t acting now, but you will later. I don’t think that is a negligible difference outside the left side of the faculty lounge, where words no longer have meanings.

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  25. Scott:

    Self insurance means something in particular, and that something is not simply “not buying insurance”.

    So, how do you differentiate between people who are self-insuring (which I’m guessing you take to mean that they are saving up on their own) and the ones who are just saying “Screw it, I’m not buying insurance”? Because the people who are “self-insuring” are certainly engaging in activity.

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    • Mike:

      So, how do you differentiate between people who are self-insuring (which I’m guessing you take to mean that they are saving up on their own) and the ones who are just saying “Screw it, I’m not buying insurance”?

      I don’t feel a need to establish a method of differentiating because the plain words of the commerce clause don’t apply to either, at least in the context of insurance as commerce.

      But if I assume that there is some hypothetical reason to need to differentiate, then a person who is self insuring would be setting aside a particular amount of money, determined by actuarial tables associated with a particular insurable risk, on a regular basis into a segregated account accessible for the expressed purpose of paying costs associated with those risks. Anyone who wasn’t doing that would not be self insuring.

      Because the people who are “self-insuring” are certainly engaging in activity.

      Perhaps, but they are not engaging in interstate commerce in the context of insurance.

      BTW, I would even argue that self insurance is an entirely different concept to regular insurance, and therefore self insurers cannot even be said to be engaging in the activity which ACA purports to regulate. The reason I say this is because ordinary insurance is based on the notion that risks that are specifically unknowable to an individual are statistically knowable across a wider population. That is, we don’t know who the insurable event is going to happen to, but we do know how many people within the given population it will happen to. Therefore, we know what the population as a group needs to pay to cover the event.

      Self insurance cannot work on this theory, since the population being insured is an individual. So the individual can calculate the probability that the insurable event will occur to him, and save money to cover the expected, ie probability derived, cost. But of course if the event actually does occur, realized costs will be more than expected costs, by the difference between 100% and the pre-event probability. Therefore, individual self insurance will never actually be able to cover actual costs should the insurable event occur. Which is why, self insurer is, in effect, not entirely different to someone who says screw it, I won’t buy insurance. It is also why, to my knowledge, self insurance is never used except in conjunction with a standard insurance policy that is, for whatever reason, less than the desired coverage.

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      • Even maintaIning true self-insurance is not in and of itself is not commerce. Commerce needs two people and a transaction.

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  26. To focus on the action/inaction dichotomy is a complete red herring. The name of the act is the Patient Protection and Affordable Care Act. Any who is ever a patient or obtains health care is engaging in commerce. Health Care is 18% of our GDP which is an average of over $7500 per person per year. That is a lot of commerce.

    What the insurance mandate portion of the law does is proscribe the method of obtaining health care. While I have some problem with the obvious if slightly reluctant rent-seeking on the part of insurance companies, I have no problems with the constitutionality of the system. Nearly everyone now gets their healthcare from insurance companies. Not a lot of inaction on that front. It just expands the market to people currently kept out due to cost or uninsurability. Most people without insurance are not doing so out of philosophical purity. And even then there are outs and options for the hardcore boycotters of insurance. They just have to pay for the privilege.

    There are tons of laws and regulations that govern how and where you can pruchase certain goods and services. In many states you have to buy liquor from specially licensed stores.

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    • yello:

      Happens every time you go to the doctor or buy medicine at the pharmacy.

      And every time you buy groceries. And every time you pay your greens fees. And every time you buy a drink in a bar. And even every time you visit your neighborhood hooker, if that’s your thing. And these examples have one other thing in common with your examples…they have nothing to do with what was actually being discussed.

      What the insurance mandate portion of the law does is proscribe the method of obtaining health care.

      No it doesn’t. The law does not require that health care be obtained via any method at all. It only requires that people purchase insurance.

      Nearly everyone now gets their healthcare from insurance companies.

      No one gets their health care from insurance companies. Insurance companies provide insurance, not health care.

      There are tons of laws and regulations that govern how and where you can pruchase certain goods and services.

      Yes, but there is only one that dictates that you have to purchase certain goods and services. Which is the point.

      In many states you have to buy liquor from specially licensed stores.

      Only if you choose to buy it, which you are not compelled to do. Besides which, what states may or may not do is irrelevant to the powers of the federal government under the commerce clause, which is the issue at hand.

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  27. Commerce needs two people and a transaction.

    Happens every time you go to the doctor or buy medicine at the pharmacy.

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  28. Scott:

    Perhaps, but they are not engaging in interstate commerce in the context of insurance.

    Which brings us back the Wickard and Raich cases. Neither Filburn nor Raich were actually engaged in interstate commerce, but SCOTUS allowed them to be regulated.

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    • Mike:

      Which brings us back the Wickard and Raich cases. Neither Filburn nor Raich were actually engaged in interstate commerce, but SCOTUS allowed them to be regulated.

      SCOTUS was wrong and should not have done so, and the rulings should be overturned. The commerce clause gives the federal government the power to regulate interstate commerce. It doesn’t give it the power to regulate anything that may have an economic impact on interstate commerce.

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  29. Has the Federal government ever before required the purchase of something because one, er, exists?

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    • McWing:

      Has the Federal government ever before required the purchase of something because one, er, exists?

      No, but it has a long history of passing laws that don’t, which is all the precedent needed, apparently.

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  30. “quarterback, on June 25, 2012 at 2:53 pm said:

    But it did concern “activity”–growing of wheat. ”

    Yes, but they went even further than that in the original case and asserted a Congressional prerogative to target anything “wholly outside the scheme of regulation, would have a substantial effect in defeating and obstructing its purpose” or “though it may not be regarded as commerce, it may still, whatever its nature, be reached by Congress if it exerts a substantial economic effect on interstate commerce”

    To put it another way, if the Wickard court was ruling on the ACA case, I have no doubt the mandate would be (wrongly) upheld.

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    • jnc:

      To put it another way, if the Wickard court was ruling on the ACA case, I have no doubt the mandate would be (wrongly) upheld.

      It is clear that the justices in Wickard understood they were asserting (wrongly, obviously) that the government had the power to prevent the growing of wheat for personal consumption. But did they believe that this same power could be used to compel someone to grow wheat? After all, the refusal to grow wheat to sell across state lines affects commerce at least as much as the act of growing it for personal consumption does. This, it seems to me, is the proper analogue to the ACA activity/inactivity discussion. Only if the court thought it was asserting this power to compel someone to grow wheat can it be said, I think, that the logic of Wickard (such as it is) necessarily leads to the mandate being upheld.

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    • jnc:

      BTW, on this from Wickard:

      though it may not be regarded as commerce, it may still, whatever its nature,be reached by Congress if it exerts a substantial economic effect on interstate commerce

      Isn’t this just a bald invention of an entirely new power? The commerce clause enumerates the power to regulate commerce between the states, not activity that exerts an economic effect on commerce.

      This looks to me to be totally invented out of whole cloth.

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  31. “yellojkt, on June 25, 2012 at 4:33 pm said:

    Commerce needs two people and a transaction.

    Happens every time you go to the doctor or buy medicine at the pharmacy.”

    But not when you are sitting at home doing nothing.

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  32. “ScottC, on June 25, 2012 at 6:12 pm said:”

    “But did they believe that this same power could be used to compel someone to grow wheat?”

    My reading of the text of the decision is that they asserted that Congress had the power to do whatever it wanted to support the wheat market, whether that was banning the growing of wheat for personal use or potentially forcing people to purchase wheat in the subsidized market to ensure the price was maintained at the proper level.

    The specific language of the quotes I cite on the ability of Congress to target anything “whatever its nature” that impacted the price of wheat seems to be an assertion of limitless (not even near limitless) power under the guise of regulating interstate commerce.

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  33. Wickard is a terrible decision and a Pandora’s Box. But the distinction between its holding and the copious dicta (discursive language unnecessary to the decision) in the opinion should not be forgotten.

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  34. “ScottC, on June 25, 2012 at 6:25 pm said:

    This looks to me to be totally invented out of whole cloth.”

    Bingo. Now you see my point. It’s impossible to exceed the limits of the power set forth in Wickard as it’s explicitly limitless.

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  35. “quarterback, on June 25, 2012 at 6:55 pm said:

    “But the distinction between its holding and the copious dicta”

    Doesn’t the copious dicta come into play when applying it as a precedent as no two cases are exactly alike?

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  36. It can, and parties and judges will sometimes quote it as persuasive or controlling.

    But the proponents will still have to get past the facts of the case and the difference between them and those of ACA. I don’t know of any language, either, that expressly reaches inaction or approves compulsory action.

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  37. I don’t mean to sound optimistic. I am not. I do not trust Kennedy and really do not trust Roberts, either.

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    • I wonder what our resident legal experts think of this regarding the Montana campaign finance case.

      Proponents of campaign-finance “reform” are predictably outraged that the U.S. Supreme Court didn’t use this opportunity to revisit and reverse Citizens United. But the real outrage is not that the Supreme Court reaffirmed Citizens United, but that the vote to do so was not unanimous. Although the Montana court’s decision was in clear conflict with binding Supreme Court precedent, the vote to reverse was only 5–4.

      Dissenting from the ruling were the Court’s liberals, led by Justice Stephen Breyer. In a two-page opinion, Breyer argued that even if he were to accept the correctness of Citizens United, Montana should have the freedom to ignore that ruling because “Montana’s experience, like considerable experience elsewhere since the Court’s decision in Citizens United, casts grave doubt on the Court’s supposition that independent expenditures do not corrupt or appear to do so.” In other words, Montana and other states should be free to decide that the U.S. Supreme Court was wrong.

      I confess that I am torn. I understand the logic behind respect for precedent, and it seems particularly brazen to ignore a precedent that was set by the very court on which one sat and is sitting. But if one believes that a particular decision was in error, it seems odd to be expected to vote in favor of perpetuating that perceived error just because the error has already been made.

      Like

      • I have not read the Montana opinions.

        My default position on constitutional precedent in the Supreme Court is that Justices should not feel bound by incorrect precedent. They should vote as the Constitution requires, not how their erroneous precedents require. Thus, for example, my fixation with the frightening logic of the Casey plurality opinion, which openly said that it was important not to correct a possible error if the error led to decades of political and social strife. And I think it can fairly be said that many of the liberal justices have been starkly hypocritical about this over time.

        Sometimes, however, Justices use a strategy of trying to distinguish and box in precedents they don’t like. It may be that Stevens was trying to do this. It also sounds as though he was trying to treat the issue as one on which the results can differ based on “facts” like an individual state’s “experience.” That seems like a reach for sure.

        Like

        • QB, were you referring to Stevens concurrence in Casey, or to Breyer in the instant case?

          I have suggested a way the result could differ based on “facts”, btw.

          Like

        • I meant Breyer’s dissent. I misread Scott’s link and thought it was Stevens.

          Like

      • Scott, I don’t think any lawyers were outraged that the Supremes did not reconsider CU.

        I will throw this out for QB and Ashot, especially, and also Mike, who reads Supremes cases for a hobby.

        Aside from “time, place, and manner” restrictions, the other major limit on First Amendment rights comes from “balancing”. For example, national security is often invoked to stifle free speech or press and the Court may be called on to decide if the concern is legitimate, balancing the constitutional personal right against the constitutional mandate for, say, the common defense. Kennedy paid some lip service to the balancing test in CU, as I recall, writing to the effect that unlimited soft money would not corrupt the process. Montana said it had before it the factual history of a corrupted process and was thus using its balancing power. So there was an itty bit of wiggle room to distinguish the cases.

        For that reason, Breyer was well within the tradition to a] not demand full briefing and oral argument because he knew it would lead to another 5-4 vote and b] to express his dissent to the per curiam.

        I have not read it. Did he list examples of corrupt practices since CU?? Of course, he did not have to. As he wrote, the Court merely supposed there would be none.

        If CU is revisited in my lifetime it may be because of a history of corrupt practices brought into evidence in many state courts that lead to an effort to bring it to the Supremes’ attention again, or because of a new McC-F type bill that is passed after Congress takes a whole bunch of testimony on corrupt practices. That is one possible future history. Another possibility is that corrupt practices themselves will be successfully targeted absent money flow controls. The internet plus disclosure laws may actually make that possible, albeit with the concurrent loss of privacy. This possibility was foreseen by Kennedy.

        Because I think full disclosure and internet publication might work to limit the problem of corrupt influence, I suspect that will have to be tried and have to fail miserably before the Court actually ever entertains limiting CU .

        Like

  38. Interesting discussion you guys. I’m not sure which way it will go now and I’m not all that sure I care that much about the mandate. I do care about the rest of the bill as it’s the only thing we’ve got for now. I’m more worried that they’ll strike down other parts of the bill that are helping people right now and if not, then I think we can all expect the insurance companies to raise the premium rates………………….even more.

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  39. Hmm. Mandate goes down 5-4, but I’ll go with severability. Most of the law stands. It strikes me that there were plenty of other ways to handle the free rider issue, but Dems were terrified of anything that could be called a tax.

    I’ve been off the grid for a few days (traveling and then at my brother’s lake house; no internet, no cell phone signal). Kinda fun to unplug every once in awhile.

    BB

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  40. Scott:

    Well, I was going to respond with the “substantial effects” test, but jnc already pointed that out. I’ll just say that it would be extraordinary, IMO, for this Court to overturn Wickard. Scalia certainly regrets his concurrence in Raich given his recent comments in his book.

    Like

    • Mike:

      I’ll just say that it would be extraordinary, IMO, for this Court to overturn Wickard.

      I imagine it would be extraordinary, but don’t you agree that it should? Clearly Wickard has granted a power to congress that does not exist in the constitution.

      Liked by 1 person

  41. Mark:

    I have not read it. Did he list examples of corrupt practices since CU??

    The opinion and dissent in the Montana case are all of two pages in toto.

    The PC opinion basically says there “can be no serious doubt that” CU applies to MT. Breyer’s dissent basically says: a) I disagreed with CU; b) even if I agreed with it, MT should be given the opportunity for a hearing on their prior law and experiences; and c) I’m voting against granting cert because it’s just going to end up being another 5-4 decision upholding CU.

    Like

  42. “Mike, on June 26, 2012 at 7:26 am said:

    Scalia certainly regrets his concurrence in Raich given his recent comments in his book.”

    He should have thought of that at the time. He doesn’t get a do over.

    Had Raich gone the other way, the political effects of standing by principle even if the results were not what you wanted would have given considerable momentum to the arguments to return the Commerce Clause to its original understanding.

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    • JNC – do you mean John Marshall’s understanding or Lochner when you say “original”?

      Like

    • jnc:

      He should have thought of that at the time. He doesn’t get a do over.

      According James Taranto (second item), Scalia’s opinion in Raich
      does not rely on Wickard at all. I haven’t had time to read it so I don’t know how accurate that is, and perhaps Scalia relied on precedent which itself rested on Wickard without mentioning that explicitly.

      Like

  43. Technical question on Montana:

    Was this a law that only governed state elections and thus was covered by Citizens United due to incorporation, or did it also concern Federal elections in Montana?

    Like

  44. jnc:

    I’m pretty sure the MT law only covered state elections (House, Senate, Supreme Court). Ballot initiatives were not covered, I think, nor were federal elections. MT PACs have more burdensome disclosure requirements, which I think was the crux of the suit.

    Like

  45. Scott:

    IIRC, Scalia relied on differentiating Raich from Lopez (gun-free school zones) and Morrison (Violence Against Women Act), the two cases that put limits on the Commerce Clause (and descendants of Wickard). Scalia said something to the effect that the interstate marijuana market can be regulated by Congress and that medical marijuana grown for personal use could easily become part of the interstate market, so it could be regulated by Congress.

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  46. This is a nice summary of the challenges to the law
    http://healthaffairs.org/healthpolicybriefs/brief_pdfs/healthpolicybrief_58.pdf

    Like

  47. If it’s legitimate for the Court to expand Congressional regulatory power in Wickard, isn’t equally legitimate if a Court contracts Congerssional regulatory powers?

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    • Troll,

      If it’s legitimate for the Court to expand Congressional regulatory power in Wickard, isn’t equally legitimate if a Court contracts Congerssional regulatory powers?

      Because what’s theirs is theirs, and what’s ours is up for negotiation. It is one of the many “one-way ratchets” the left claims as a matter of natural right. Rollback is not allowed. The revolution is permanent and inviolate.

      Like

  48. Scott:

    I imagine it would be extraordinary, but don’t you agree that it should?

    Practically speaking, I would say no. The regulations that have been spawned by Wickard are pretty far-reaching and overturning Wickard would have dramatic consequences, intended and unintended. I think that’s why the Justices were searching around for a limiting principle during oral arguments. So, either way, the Justices (Roberts) have likely found a limiting principle and ACA falls on one side of it.

    Like

    • Mike:

      Practically speaking, I would say no. The regulations that have been spawned by Wickard are pretty far-reaching and overturning Wickard would have dramatic consequences, intended and unintended.

      I would imagine that this is true of any longstanding precedent. All the more reason, it seems to me, that there is no better time to get rid of bad rulings than the present. The longer they stay, the more damage they do and it will only get more difficult to get rid of them with time.

      Like

  49. “ScottC, on June 26, 2012 at 8:55 am said:

    jnc:

    He should have thought of that at the time. He doesn’t get a do over.

    According James Taranto (second item), Scalia’s opinion in Raich
    does not rely on Wickard at all. I haven’t had time to read it so I don’t know how accurate that is, and perhaps Scalia relied on precedent which itself rested on Wickard without mentioning that explicitly.”

    He doesn’t mention the word Wickard explicitly, but this reasoning comes straight out of it:

    “That simple possession is a noneconomic activity is immaterial to whether it can be prohibited as a necessary part of a larger regulation. Rather, Congress’s authority to enact all of these prohibitions of intrastate controlled-substance activities depends only upon whether they are appropriate means of achieving the legitimate end of eradicating Schedule I substances from interstate commerce.

    By this measure, I think the regulation must be sustained. Not only is it impossible to distinguish “controlled substances manufactured and distributed intrastate” from “controlled substances manufactured and distributed interstate,” but it hardly makes sense to speak in such terms. Drugs like marijuana are fungible commodities. As the Court explains, marijuana that is grown at home and possessed for personal use is never more than an instant from the interstate market–and this is so whether or not the possession is for medicinal use or lawful use under the laws of a particular State.”

    Substitute wheat for marijuana, and it’s straight unalloyed Wickard:

    “wheat that is grown at home and possessed for personal use is never more than an instant from the interstate market”

    Just like the liberals he usually chastises, he doesn’t like the result the original understanding of the Commerce Clause leads him to in this case.

    Justice Thomas makes the case against in two sentences:

    “Justice Thomas, dissenting.

    Respondents Diane Monson and Angel Raich use marijuana that has never been bought or sold, that has never crossed state lines, and that has had no demonstrable effect on the national market for marijuana. 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.”

    Like

  50. Scott:

    I would imagine that this is true of any longstanding precedent.

    Wickard is different in that a great proportion of our current law derives from that precedent. Getting rid of Wickard sounds good in theory, but without anything else in place, would likely lead to chaos in the federal government and the judiciary. Better to limit the scope of Wickard, like in Lopez and Morrison, than to burn everything down.

    Like

    • Mike:

      but without anything else in place

      Not to be snarky, but without Wickard, wouldn’t the actual constitution finally be back in place? If we have a boatload of laws that rest upon Wickard, then we have a boatload of unconstitutional laws. Why should we want to keep them?

      Like

      • It is a bridge too far to assume that W v.F is a violation of constitutional principles. I don’t like it, either, never did, but here are the holdings.

        The wheat marketing quota and attendant penalty provisions of the Agricultural Adjustment Act of 1938, as amended by the Act of May 26, 1941, when applied to wheat not intended in any part for commerce but wholly for consumption on the farm, are within the commerce power of Congress. P. 118.

        The effect of the Act is to restrict the amount of wheat which may be produced for market and the extent as well to which one may forestall resort to the market by producing for his own needs. P. 127.

        That the production of wheat for consumption on the farm may be trivial in the particular case is not enough to remove the grower from the scope of federal regulation where his contribution, taken with that of many others similarly situated, is far from trivial. P. 127.

        The power to regulate interstate commerce includes the power to regulate the prices at which commodities in that commerce are dealt in and practices affecting such prices. P. 128.

        A factor of such volume and variability as wheat grown for home consumption would have a substantial influence on price conditions on the wheat market, both because such wheat, with rising prices, may flow into the market and check price increases and, because, though never marketed, it supplies the need of the grower which would otherwise be satisfied by his purchases in the open market. P. 128.

        The amendatory Act of May 26, 1941, which increased the penalty upon “farm marketing excess” and included in that category wheat which previously had not been subject to penalty, held not invalid as retroactive legislation repugnant to the Fifth Amendment when applied to wheat planted and growing before it was enacted, but harvested and threshed thereafter. P. 131.

        Under McCulloch v. Maryland, the seminal case, opinion by a Founding Father, Marshall, another Founding Father, Hamilton, is quoted favorably:

        [A] criterion of what is constitutional, and of what is not so … is the end, to which the measure relates as a mean. If the end be clearly comprehended within any of the specified powers, and if the measure have an obvious relation to that end, and is not forbidden by any particular provision of the Constitution, it may safely be deemed to come within the compass of the national authority. There is also this further criterion which may materially assist the decision: Does the proposed measure abridge a pre-existing right of any State, or of any individual? If it does not, there is a strong presumption in favour of its constitutionality….

        If the quota system in W. v. F. is constitutional, then enforcing it is constitutional, too, in the broadest sense. I have always thought that effectively enforcing that quota did not factually require enforcement against the farmer’s private plot or crop not because the commerce clause could not reach the whole of what was grown but because it is simply de minimus, despite what the Court said. Reaching into the garden, so to speak, where there really is no proof offered that the amount of grain used to feed one’s own cattle, even aggregated, would affect the market one whit, was an invitation to all kinds of intrusive regulation that should be too small to screw with. Especially because it can only be enforced by the honor system and fear. There are not enough regulators and never will be to stifle the little crap that W. v. F. can justify enforcing. It leads to bureaucracy run amok. Those forms in the 40s, btw, were a joke. My dad always made up some huge amount of corn he wasn’t growing, but didn’t in the end write it into the form. He never took a subsidy for it, but he thought it was so dumb. We were sure some folks were getting subsidies for stuff they never grew ever.

        And the retroactive holding was a real slap, too.

        I would like the principle of de minimus to be strengthened by Court decisions in which evidence of the effect on commerce is offered at trial.

        I hate that case, but it is a stretch to say it violates settled Constitutional principles.

        Like

        • Mark (from the holdings):

          The effect of the Act is to restrict the amount of wheat which may be produced for market and the extent as well to which one may forestall resort to the market by producing for his own needs.

          The implications of the generic power to restrict a persons ability to produce for his own needs are simply too offensive to the very ideas that animated the creation of the nation and constitution in the first place for anyone to seriously believe that the constitution grants the power. This power effectively renders all individuals to be literally slaves to the state. This is not an exaggeration. If one is not free to produce for one’s own needs, then one is not free in any sense of the word at all.

          BTW…it is impossible for me to believe that Hamilton would condone such an interpretation.

          Like

  51. Scott:

    Again, in theory, overturning Wickard sounds good. But, as a practical matter, I for one would rather not have our entire federal legal and regulatory system be thrown into disarray as people try to figure out what is permissible and what is not, then get a dysfunctional Congress to re-enact the stuff we still want.

    Like

    • Mike:

      But, as a practical matter, I for one would rather not have our entire federal legal and regulatory system be thrown into disarray as people try to figure out what is permissible and what is not, then get a dysfunctional Congress to re-enact the stuff we still want.

      I think that if our entire federal legal and regulatory system rests upon such blatantly unconstitutional power, it ought to be thrown into disarray. But is that really the case? The commerce clause would still exist, and the Federal government would still retain the ability to regulate actual commerce. So any regulations that actually do regulate interstate commerce, which I assume (I hope!) is most regulations, would continue to do so without problem. The problems would arise only in those instances where the Fed is regulating actions that are not in fact commerce or not in fact interstate. And if it is really true that the federal regulatory system is mostly engaging in regulation of non-commerical, intrastate behavior, then what kind of disarray do you envision would result from it ceasing to regulate that behavior?

      edit: BTW, we wouldn’t have to re-enact any existing regulation that actually fell within the enumerated power to regulate commerce. The only thing that it would be necessary to re-enact would be regulation that fell outside of that power, and why would we ever want to re-enact stuff is unconstitutional?

      Like

  52. “as people try to figure out what is permissible and what is not”

    probably would want to hire good lobbyists

    Like

  53. “then get a dysfunctional Congress to re-enact the stuff we still want.”

    I’ll echo Scott on not being snarky, but what is dysfunctional about the Congress?

    Like

  54. nova:
    Job security!

    Troll:
    Inability to get appropriations bills passed on time for the last however many years is but one example.

    Like

  55. Scott:

    I’m not familiar with all the laws that fall under Wickard, but I will give you one example based on a SCOTUS case.

    In Katzenbach v. McClung, SCOTUS upheld the Civil Rights Act of 1964, which used the Commerce Clause to prohibit discrimination based on race in a restaurant or motel, respectively. Some will not have a problem with this, but for obvious reasons I do. So unwinding this part of the Civil Rights Act would not be good for practical reasons.

    (edited)

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  56. Mark:

    Filburn didn’t just grow some extra wheat for personal consumption — according to Wiki, he more than doubled his quota.

    239 bushels of wheat is way more than a family can consume in a year. Feeding his livestock would have been a way of laundering the wheat, I guess.

    Like

    • I did not recall that Filburn doubled his crop. His quota was very low. Must have been a tiny farm. In the 40s 30 bushels per acre would have been a likely yield. So if he could only grow 480 bushels on his farm that equates to 16 acres.

      But unlike corn, you cannot feed wheat to a cow. You could feed it to chickens, but hog farmers won’t use it either. So I agree: Filburn was cheating and that probably made the case. Too bad. I wish a farmer with 1000 acres under wheat grew 50 bushels for himself to make flour with and that had been the case. Might have been decided differently.

      Like

    • Mike:

      Filburn didn’t just grow some extra wheat for personal consumption — according to Wiki, he more than doubled his quota. 239 bushels of wheat is way more than a family can consume in a year. Feeding his livestock would have been a way of laundering the wheat, I guess.

      I don’t see why it matters how much he grew, or what he did with it. As long as he didn’t sell it, he was not engaging in commerce and so fell outside the legitimate regulatory authority of the government.

      Like

  57. “The power to regulate interstate commerce includes the power to regulate the prices at which commodities in that commerce are dealt in and practices affecting such prices. P. 128.

    like fun it does.

    Like

  58. I wrote my opinion of the likely outcome yesterday and it disapeared. Weird.

    Like

  59. regulating or stabilizing prices is just that — that’s not setting rules for how trade can be conducted.

    the whole thing is an infringement on my freedom on contract and property rights.

    Like

    • Scott and NoVA, I think all the stabilization acts were tied to subsidies that paid the farmers not to grow. The point was to affect the market price of wheat in the world [we were the biggest producer] but I don’t think the farmers lost money by growing less. At least that is how it worked ’47-’54, and I think it is how it worked in the previous decade.

      Simply forcing farmers not to grow would involve a taking – you are both right. So I am sure the taking was subsidized.

      Mike, I see the DOA figured only 20 bu/acre back then. Wow. I am sure we are hitting 60+ now.

      Like

  60. Scott:
    I was responding to Mark’s comment about de minimus.

    IIRC, Filburn did sell some of his harvest. But the argument was basically the same as Scalia’s concurrence in Raich — that the product (excess wheat, in this case) was available for commerce and therefore could be regulated.

    Mark:
    And it looks like the DoA was pretty close with that figure, at least based on Filburn’s yield. Farming sure has come a long way since the 1940s — yay, science!

    Like

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