Oral argument before the Supreme Court has just concluded today in the landmark case of Nat'l Fed. of Ind. Business v. Sebelius (and related cases being argued together). These are the "Obamacare" cases which are poised to determine whether the individual healthcare mandate under the new Federal Healthcare Act are consitutional.
Today was the first of three days of arguments, spanning 6 hours of total argument time, which is the longest time allowed for oral argument in a case since the mid 1960s. On the block today was argument by an attorney appointed by the Court to analyze whether the Court has any authority to consider the case at all, under the theory that it is, in reality, a tax, and therefore cannot be challenged before it has taken effect under the Anti-Injunction Act of 1867.
Consideration of the immediate and long-term future of "Obamacare" health insurance, and the healthcare system are all very important goals, some of which I will be discussing in the near future. However, one of the most important issues
in this case, and one overlooked by many media outlets, is the question of the federal government's power to act in this area at all, in light of principals of federalism, individual rights, and states' rights. While there are many aspects to this, at the very heart of the matter is the power weilded by an expansionist federal government which, most agree, has far exceeded the bounds imagined by the framers of the constitution.
In 1789, when the fledgiling Republic sought to define the relationship between State Governments and that of the new United States, the United States Constitution was born. One of the foundational principals of this document was the limitation on the power of the federal government, which was only allowed to do certain things, such as coin money, enter into treaties, provide for the common defense, etc., referred to as "enumerated powers."
Fast forward a couple hundred years, to our modern era, where the federal government has grown much larger, and seeks to regulate many every-day aspects of modern society which were formerly left up to the wisdom of each state. And much of this new regulation through the very broadly interpreted power of the federal government to regulate "interstate commerce." What does healthcare have to do with "interstate commerce," you ask? Everything. Under the "fuzzy logic" applied to the interstate commerce clause of the Constitution, practically everything in our environment "touches and concerns" interstate commerce.
Such was the philosophy set forth in Wickard v. Filburn, 317 U.S. 111, a 1942 tax case, which will certainly be on the Supreme Court's radar in theSebelius case. In
Wickard, Roscoe Filburn, a farmer, was growing wheat on his farm which he planned to use for himself and his family, not to sell. In the wake of the Great Depression, the U.S. government had placed strict limits on wheat production, designed to drive up prices, and Filburn was growing more than the limit allowed. But the limits were designed to be on wheat for sale, Filburn argued, and did not apply to what he did on his own private farm, for his own family.
As the government argued, and the Supreme Court agreed, if Roscoe Filburn had not grown wheat for himself, he would have had to buy it on the open market, so, logically, Filburn's private production of wheat was affecting interstate commerce, and could be regulated. Since Wickard, and later similar cases, the commerce clause has become the favorite excuse of congress to regulate everything from guns to crime and now health insurance.
In today's global economy, it is truely hard to imagine any aspect of our lives which does not involve, in some way, or impact, in some way, interstate commerce, under the Wickard v. Filburn definition. Thus, unless something changes, nothing is free from the robotic grasp of federal regulation. Try to imagine any product you have used in the last month which did not come from some other state or country, or contain some component that did. And even if you make it yourself, it still affects interstate commerce under Wickard.
That is one of the biggest things at stake here -- the individual identity, lawmaking authority, and regulatory power of our state governments, in addition to our basic individual freedoms. Will we continue to be a nation of free men and women, organized as citizens of a confederation of states, or will we be merely small parts of a larger federal machine?