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Wednesday, October 5, 2011

I get a lot of clients, family members, friends, acquaintances, and random strangers who find out I’m a lawyer asking me what I think is going to happen to the health reform law when the lower court decisions are reviewed by the Supreme Court. Fortunately, unlike the various real estate, estate planning, or tort questions I get asked (mostly by family), this is a subject that I actually know a little about.(1) I am not a Constitutional Law expert, but it was one of my favorite classes in law school.

My personal opinion is that I do not think it or any part of it will be struck down. Others disagree, but they are forgetting that health reform has everything to do with growing wheat.(2)

Back in the 1930’s, FDR kept pushing New Deal reforms through Congress. When the laws were challenged before the Supreme Court, the Supreme Court struck many of them down on the grounds that Congress did not have the authority to enact such laws. FDR threatened to increase the size of the Supreme Court(3) and nominate friendly justices who would uphold the reforms and magically we received Wickard v. Filburn.(4)

In Wickard, an Ohio farmer, Roscoe Filburn, was challenging part of the Agriculture Adjustment Act of 1938.(5) The Act purported to regulate how much of Roscoe’s farm could be devoted to wheat production. Roscoe planted and harvested significantly more than he was allotted under the Act. He argued that the additional wheat was for his personal use and to feed his livestock. Therefore, he said, this extra wheat growth was merely local in nature and therefore was not part of the “commerce among the several States”(6) that is subject to Congressional regulation.

The Court in Wickard essentially did away with any prior distinction of local versus interstate activities by pointing out the aggregate effect on interstate commerce that even “local” activities had. This aggregate effect analysis was novel in Commerce Clause analysis and constituted a radical expansion, at the time, of Congressional Commerce Clause authority.(7) From the time of Wickard forward, the Supreme Court has not interpreted the Commerce Clause as imposing any substantial limit on Congress’s authority to regulate economic activity.

So what does this have to do with health reform? Some of the arguments advanced by opponents to the law essentially state that Congress cannot regulate the purchase of health insurance by individuals and, specifically, cannot force them to buy it.(8) The arguments boil down to a challenge of the scope of Congressional authority to regulate economic activity under the Commerce Clause. While other laws have been struck down before on Commerce Clause grounds,(9) they are the exception rather than the rule. As a result, it would be remarkable, in my view, for the Court to strike the law down. To do so, the Court would have to articulate a reason that the individual mandate beyond the reach of Congress’s authority, which is a feat made difficult by the Wickard decision and its progeny.

The views of this post do not necessarily reflect the views of Bryan Cave LLP or anyone other than the author.

[1] Bryan Cave has many other talented lawyers who actually know these other areas of law.
[2] An  oversimplification of history follows.  Please consult your local Constitutional historian for more details.
[3] The Constitution does not mandate the size of the Supreme Court.  Conventional wisdom (by which I mean, my uninformed speculation) is that the number nine was chosen in case the justices ever had to field a baseball team. This was in the era before bullpen specialization and starters only going 5 innings, so clearly FDR was ahead of his time, from a baseball perspective.
[4] 317 U.S. 111 (1942).  The connection is somewhat more attenuated than the compound sentence implies.  There were other cases decided in the 1930’s that also took a more expansive view of Congress’s Commerce Clause authority that preceded WickardWickard, however, is generally regarded as one of cases creating the most expansive view of that authority.  Also, no actual magic was used.
[5] Scintillating reading, as I’m sure you all know.
[6] Article I, Section 8, Row 37, Seat 134 (OBSVU) U.S. Constitution, aka the Commerce Clause.
[7] And a real disappointment for Roscoe.
[8] There are other arguments and ancillary issues that I am not addressing here.  My failure to address them does not mean they are unimportant or irrelevant, just that I don’t think I can hold your attention for much longer.
[9] See e.g., U.S. v. Lopez, 514 U.S. 549 (1995).

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