The fervor on the right for the SOTUS to declare the health care insurance mandate unconstitutional is far from a stand-alone issue. I have written before about the comparison to the ethanol mandate, but it is even more abstruse legally than I had imagined.
For instance, if the ACA mandate doesn't pass muster, it could impact the 1938 Farm Bill, which undergirds every farm bill since.
The role the Wickard decision will play in the health care reform lawsuits that are now before, or headed toward, the U.S. Supreme Court is unclear, because some lower court judges have refused to use the 1942 case as precedent, while others have.Moreover, striking it down will really complicate other applications of the Commerce Clause, which has allowed Congress to meddle in all kinds of sectors to reward constituents/supporters.
ISU’s Harl notes in his article that “one of the more influential opinions from the appellate courts” did take notice of Wickard and upheld the health care law “as within the power of Congress to legislate under the commerce power.”
Of particular interest, Harl said, is the fact that the three-judge panel of the District of Columbia Court of Appeals that made the decision was headed by Judge Laurence Silberman, a conservative judge who was appointed by President Ronald Reagan in 1985.
The Silberman decision, Harl wrote, stated that “Wickard … comes very close to authorizing a mandate similar to (the health care legislation), at least indirectly.”
Also, Harl noted, “Judge Silberman, in the opinion, concluded with the statement ‘we are obliged — and this might well be our most important consideration — to presume that acts of Congress are constitutional.’ ”
Harl’s article concludes with a question: “What are the chances that the current (Supreme) court will follow the path taken by the District of Columbia Court of Appeals and uphold the legislation?”
The high court, he wrote, “has a choice — overturn Wickard v. Filburn or, at least distinguish it, which could be difficult to do, or uphold the 2010 health care legislation.” [More]
And it's just that simple.To be sure, a number of the Supreme Court's Commerce Clause cases have used the word "activity" to describe behavior that was either regarded as within or without Congress's authority. But those cases did not purport to limit Congress to reach only existing activities. They were merely identifying the relevant conduct in a descriptive way, because the facts of those cases did not raise the question--presented here--of whether "inactivity" can also be regulated. In short, we do not believe these cases endorse the view that an existing activity is some kind of touchstone or a necessary precursor to Commerce Clause regulation. . . .Indeed, were "activities" of some sort to be required before the Commerce Clause could be invoked, it would be rather difficult to define such "activity." For instance, our drug and child pornography laws, criminalizing mere possession, have been upheld no matter how passive the possession, and even if the owner never actively distributes the contraband, on the theory that possession makes active trade more likely in the future. And in our situation, as Judge Sutton has cogently demonstrated, many persons regulated by the mandate would presumably be legitimately regulated, even if activity was a precursor, once they sought medical care or health insurance. [More]
Seriously, the legal fallout from this case will be immense regardless of the decision.
Update: Another opinion that cites Wickard as an important guiding precedent.