Back to the Future? (Thomas Sowell)

Creators Syndicate ^ | March 27, 2012 | Thomas Sowell

[jazusamo]

When a 1942 Supreme Court decision that most people never heard of makes the front page of the New York Times in 2012, you know that something unusual is going on. What makes that 1942 case — Wickard v. Filburn — important today is that it stretched the federal government's power so far that the Obama administration is using it as an argument to claim before today's Supreme Court that it has the legal authority to impose ObamaCare mandates on individuals. Roscoe Filburn was an Ohio farmer who grew some wheat to feed his family and some farm animals. But the U.S. Department of Agriculture fined him for growing more wheat than he was allowed to grow under the Agricultural Adjustment Act of 1938, which was passed under Congress' power to regulate interstate commerce. Filburn pointed out that his wheat wasn't sold, so that it didn't enter any commerce, interstate or otherwise. Therefore the federal government had no right to tell him how much wheat he grew on his own farm, and which never left his farm. The Tenth Amendment to the Constitution says that all powers not explicitly given to the federal government belong to the states or to the people. So you might think that Filburn was right. But the Supreme Court said otherwise. Even though the wheat on Filburn's farm never entered the market, just the fact that "it supplies a need of the man who grew it which would otherwise be reflected by purchases in the open market" meant that it affected interstate commerce. So did the fact that the home-grown wheat could potentially enter the market. The implications of this kind of reasoning reached far beyond farmers and wheat. Once it was established that the federal government could regulate not only interstate commerce itself, but anything with any potential effect on interstate commerce, the Tenth Amendment's limitations on the powers of the federal government virtually disappeared. Over the years, "interstate commerce" became magic words to justify almost any expansion of the federal government's power, in defiance of the Tenth Amendment. That is what the Obama administration is depending on to get today's Supreme Court to uphold its power to tell people that they have to buy the particular health insurance specified by the federal government. There was consternation in 1995 when the Supreme Court ruled that carrying a gun near a school was not interstate commerce. That conclusion might seem like only common sense to most people, but it was a close 5 to 4 decision, and it sparked outrage when the phrase "interstate commerce" failed to work its magic in justifying an expansion of the federal government's power. The 1995 case involved a federal law forbidding anyone from carrying a gun near a school. The states all had the right to pass such laws, and most did, but the issue was whether the federal government could pass such a law under its power to regulate interstate commerce. The underlying argument was similar to that in the 1942 case of Wickard v. Filburn: School violence can affect education, which can affect productivity, which can affect interstate commerce. Since virtually everything affects virtually everything else, however remotely, "interstate commerce" can justify virtually any expansion of government power, by this kind of sophistry. The principle that the legal authority to regulate X implies the authority to regulate anything that can affect X is a huge and dangerous leap of logic, in a world where all sorts of things have some effect on all sorts of other things. As an example, take a law that liberals, conservatives and everybody else would agree is valid — namely, that cars have to stop at red lights. Local governments certainly have the right to pass such laws and to punish those who disobey them. No doubt people who are tired or drowsy are more likely to run through a red light than people who are rested and alert. But does that mean that local governments should have the power to order people when to go to bed and when to get up, because their tiredness can have an effect on the likelihood of their driving through a red light? The power to regulate indirect effects is not a slippery slope. It is the disastrous loss of freedom that lies at the bottom of a slippery slope.

[jazusamo]

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[Uncle Ike]

In a perfect (okay - fantasy) world —

Since the Government raises the precedent of Wickard v. Filburn, the court declares Wickard v. Filburn to have been decided in error, and that all laws and court decisions based on that precedent are hereby null and void...

Hey - a guy can dream, can’t he??

[Mr. K]

with any luck the Supremes will de-facto overturn Wickard v. Filburn by rejecting it as hideously flawed decision

[jazusamo]

It’ll take a lot of luck but it’s not out of the realm of possibility. The leftists would go ballistic.

[Uncle Ike]

” The leftists would go ballistic. “

Especially when they find out that such a decision would have the immediate effect of eliminating most, if not all, of the Alphabet Agencies...

[Ancesthntr]

I hope that the Supreme Court uses this opportunity to repeal that odious piece of statist trash known as “Wickard v. Filburn” and restore some of the balance between the federal government and the states/people. The very idea that ANY action taken in the stream of commerce in ANY place has an effect elsewhere, and thus justifies federal involvement in the most minute of affairs, is insulting to the concept of federalism. In effect, “Wickard v. Filburn” repealed the 10th Amendment - which is an absurd result, but an indication of how far the statist in our society will go.

PLEASE, Justices, not only should you overturn Obamacare because the individual mandate is beyond the enumerated powers of the federal government, but you should overturn “Wickard v. Filburn” - THIS is your chance!

[Uncle Ike]

Lots of Great Minds Thinking Alike on this thread... ;)

[Vigilanteman]

. . . does that mean that local governments should have the power to order people when to go to bed and when to get up, because their tiredness can have an effect on the likelihood of their driving through a red light?

As usual, Dr. Sowell comes up with a great zinger which the nanny staters will refuse to answer.

Please add me to your ping list.

[radioone]

If this is upheld then we can throw out the Constitution, and any law or regulation that is deemed “social justice” can be enacted and there will be no “Galt’s Gulch” in which to flee.

[TEXOKIE]

“The power to regulate indirect effects is not a slippery slope. It is the disastrous loss of freedom that lies at the bottom of a slippery slope. “

Bears repeating.

[jazusamo]

Amen.

Welcome to the Sowell ping list, you’re on.

[Vigilanteman]

. . . does that mean that local governments should have the power to order people when to go to bed and when to get up, because their tiredness can have an effect on the likelihood of their driving through a red light?

As usual, Dr. Sowell comes up with a great zinger which the nanny staters will refuse to answer.

Please add me to your ping list.

[apillar]

But the Supreme Court said otherwise. Even though the wheat on Filburn's farm never entered the market, just the fact that "it supplies a need of the man who grew it which would otherwise be reflected by purchases in the open market" meant that it affected interstate commerce. So did the fact that the home-grown wheat could potentially enter the market.

Probably the stupidest and most dangerous decision the court has ever made. Do you realize, under this ruling the government has the power to bar you from raising a garden, doing home improvements, washing your car or changing your oil, or even cleaning your own house?!? After all, by doing those things yourself instead of hiring a contractor, mechanic or maid you are affecting interstate commerce (according to this ruling).

[MrB]

Q: Would it be constitutional for congress to pass a law requiring that you eat broccoli.

A, from current Supreme Court Justice Kagen: [Not answering the constitutional question] “that would be a dumb lahr”.

[WMarshal]

In my opinion the 10th Amendment trumps the Commerce Clause because it was a latter change to the Constitution.

[jazusamo]

Well said, that’s exactly what the ruling means.

[MrB]

Ever heard of the concept of “imputed income”?

Leftists have proposed taxing you on the value of the labor you “would have” bought if you didn’t unclog your own toilet but called a plumber instead.

[mamelukesabre]

Not gonna happen

The supremes do not like to do anything that draws attention to themselves. If they had their way, the whole country would forget they even exist. They would prefer to collect their perks and pensions anonymously and silently. They will sniff the wind and determine the course of least resistance and go that route.

[stephenjohnbanker]

The path of least resistance would be to kill Obamacare, as 7 out of 10 Americans don’t want anything to do with it.

[Vigilanteman]

The path of least resistance would be to essentially punt it back to the voters by saying this or that aspect are particularly troubling and need further legislative clarification before implementation can move forward.

[Don Corleone]

I hope that the Supreme Court uses this opportunity to repeal that odious piece of statist trash known as "Barack Obama"!

There fixed it.

[CaptainKrunch]

Thomas Sowell is a freakin mastermind of delineation. I love that fricken guy.

[onyx]

May Dr. Thomas Sowell live 120 years in excellent health!

Lord, hear our prayer.

[jazusamo]

Amen to that, Onyx!

[rockinqsranch]

Excellent dream. Keep on dreamin’, and maybe it will come true.

I’ll wish upon a star, and maybe, just maybe if some others join in we might get some results.

[rockinqsranch]

Thanks for the ping jaz. Another good one from Dr. Sowell.

Wickard vs Filburn has had me all burned up since I read about it here at FR years ago. Way overboard IMO on that one.

[Iron Eagle]

Dr. Sowell is a favorite of mine. However, I hate to pour cold water on his zinger — but the answer is yes. In fact, localities arleady regulate this very issue. They do it differently, but they regulate it nonetheless. Many states regulate the number of hous one may continuously drive — the basis being that too many hours make you a bad driver.

[Iron Eagle]

Dr. Sowell is a favorite of mine. However, I hate to pour cold water on his zinger — but the answer is yes. In fact, localities arleady regulate this very issue. They do it differently, but they regulate it nonetheless. Many states regulate the number of hours one may continuously drive — the basis being that too many hours make you a bad driver.

[stephenjohnbanker]

I didn’t think of that.

[mamelukesabre]

I think we have a prediction here! I’ll go with this one or something else similar to it.

[stephenjohnbanker]

Every Republican in D.C., minus a few, are afraid, so why should SCOTUS be any different?

: )

[Graewoulf]

Dictator Baby-Doc Barack has ALWAYS ignored The US Constitution, ESPECIALLY with Obama”care.”

The cancer of Obama”care” now has invaded World Finances as Obama last week choose a “Public health expert” for the World Bank Presidency.

Romney has promised to “Repeal and REPLACE” Obama”care.”

Senator (R Tn) Son-of-a-Mitch McConnell has promised to “Repeal and REPLACE” Obama”care.”
_______

The major problem with THE NINE SUPREMES is that they are chosen for political reasons by the POTUS, and then they vote as an un-accountable democracy, for a Nation that is NOT a Democracy, but a REPUBLIC.

As a result, THE NINE SUPREMES commonly vote 5 to 4 on most issues. Constitutionality is seldom a consideration, and their up-coming ruling on Obama”care” will prove my point.

Now is the time to stand and deliver to address our grievances to the dictates of the Left.

Oppose the dictates of Dictator Baby-Doc Barack!

Our ONLY chance to ABOLISH Obama”care” rests with THE NINE SUPREMES, because Romney will be defeated by Obama.

IMHO, if Romney is anointed as the RNC Nominee, THE main issue in the National Election, Obama”care,” will be taken off the campaign table. Hence, Romney will not only lose, but suffer another crushing, and sadly typical, RINO defeat.

To those who want poster ideas, here are a few ideas for demonstration posters:

Obama”care” was robo-signed by Congress, and is therefore illegal.

Obama”care” was 2700 pages long, and is still being written, but not by Congress: witness the forced contraception coverage recently added by HHS Regulators.

Obama”care” has caused “The Catholic Spring.”

Obama”care” reduces competition, and therefore is illegal by the 1890 Sherman Anti-Trust Law.

Obama”care” is designed to be a US Federal Government monopoly, with no competition.

Obama”care” also is illegal according to the US Constitution, because it violates our freedom of choice.

Will THE NINE SUPREMES notice any of these three violations? I seriously doubt it.

Impeached Bill Clinton proved that the US President is above US Federal Law, so anything that the President wants he gets, regardless of the Federal Laws that he has violated.

[Sparticus]

In a perfect (okay - fantasy) world —

Since the Government raises the precedent of Wickard v. Filburn, the court declares Wickard v. Filburn to have been decided in error, and that all laws and court decisions based on that precedent are hereby null and void...

Hey - a guy can dream, can’t he??

Monkeys will fly out our collective backsides before Wickard v. Filburn is over turned.

To use an analogy, if the Liberals were the equivalent of the Mommy in Uncle Sam's national family, Mommy would drown all the children and burn down the house with everyone in it before she would stand for overturning Wickard v. Filburn.

[itsahoot]

You don't have to be a Dr. to know where this is going to end up, TexOkie. The Commies have been working towards this for well over 100 years, they will not give up now, that it all within their grasp.

Remember these words that most people Ignored from GW's Daddy "New World Order."

Of course from a Biblical perspective this outcome is to be expected.

I have said from the beginning that the Court will not overturn this monstrosity, at the very most they may rule the mandate unconstitutional, but leave the rest in place, which will merely shift the mandate burden to the State in some convoluted fashion.

We will soon see that politicians of all stripes have the same sort of view of the little people. We are expendable.

[Impy]

According to Thomas Sowell Obama’s lawyers will be using an obscure case from the 40’s to defend Obamacare.

[stephenjohnbanker]

REALLY obscure!

[supercat]

I hope that the Supreme Court uses this opportunity to repeal that odious piece of statist trash known as “Wickard v. Filburn” and restore some of the balance between the federal government and the states/people.

More important would be a fundamental acknowledgment that, with very few exceptions, the only times precedent can ever form a legitimate basis for a court decision are either:

1. When the decision reached by the court would be entirely justifiable even if the precedent were completely ignored, and precedent is only used to select among other equally justifiable outcomes.
2. When the precedent is acknowledged as illegitimate, but someone has acted on the reasonable presumption that it was not, and the best way to minimize the harm caused by the earlier erroneous decision would be to protect those who acted in the presumption of its legitimacy while simultaneously making clear that such presumption shall no longer be considered reasonable.

In just about all other cases, precedent is either going to

1. agree with the Constitution, statutes, and other legitimate bases for decision, in which case it will be irrelevant, or
2. have been superseded by succeeding legislation or Constitutional amendment, in which case it will likewise be irrelevant, or
3. it will have been decided incorrectly, in which case it will be illegitimate.

There is no legitimate basis for the Court to act as though its decisions represent forward-going law. The fact that the Court's job is sometimes to declare what the law is, does not mean that the law becomes what the Court says. If there is a discrepancy between what the Court says and what the law says, that doesn't change the law--it simply means the Court is wrong.

[rawcatslyentist]

>"Especially when they find out that such a decision would have the immediate effect of eliminating most, if not all, of the Alphabet Agencies... "

Without severance, or pension. Think of the budget!!!!

Time to give the dog a tick bath!!!

[<1/1,000,000th%]

I like it!

[omni-scientist]

It would seem that the 10th Amendment does give extensive powers to the state, or local governments, to regulate many forms of behavior and limit freedoms. Those powers that are not prohibited to the states and to the peole by the Constitution are fair game, to paraphrase the amendment.

Thus the states can mandate RomneyCare in Massachusetts and prohibitions on smoking in public places, to name a couple examples. But enactments at the local level are much more likely to be democratically reflective of the populace.

And maybe more importantly, when the laws imposed become too onerous, the population is free to move elsewhere. As we say they can vote with their feet, taking their tax revenue and livelihoods with them. That is why anything that can be done at the local level, should be done at the local level.