Wickard and Health Care

I have no love for Wickard v. Filburn, the 1941 Supreme Court case that authorized Congress to fine a man for growing “surplus” wheat on his own farm with no intention to sell it, but only to use it to feed his family.  This was because farmer Wickard’s decision to grow wheat beyond his New Deal allotment “exerts a substantial economic effect on interstate commerce,” and Congress has the power to regulate interstate commerce.  (The facts of the case are nicely summed up by the song in Footnote 6 of this amicus brief by Sen. Rand Paul.  See pages 5-6.)  On the analysis I recently suggested, it is difficult to see why Wickard does not give Congress precisely the unlimited police powers which were later restrained by U.S. v. Lopez and U.S. v. Morrison.

But does nobody else see just a little bit of irony in the Left’s use of Wickard to justify comprehensive nationwide regulation of medical insurance?  Medical insurance is, in the narrowest sense, not interstate commerce.  It is unlawful to sell medical insurance across state lines.  The Democrats have spent two decades preventing medical insurance from being sold legally across state lines.  So any particular economic decision in the health care market, to get or forego or neglect care or insurance or whatever, can never directly affect interstate commerce the way an economic decision to grow or burn or consume wheat can — because the Democrats themselves have penned medical insurance, but not wheat sales, into state-sized cages!

I thought it was funny, anyway.

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