Long-Dead Ohio Farmer, Roscoe Filburn, Plays Crucial Role in Health Care Fight

PHOTO: Roscoe Filburn, a farmer in Montgomery County, Ohio, planted 23 acres of wheat in the fall of 1940 and harvested 462 bushels in July 1941.
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Republicans like to call the health care law "Obamacare," but if the Supreme Court decides the government has the power to make every American buy health insurance, it will have more to do with Roscoe Filburn -- a long-dead Ohio farmer -- than Barack Obama, president of the United States.

Call it "Filburncare," instead.

Every legal brief and judicial opinion regarding the constitutionality of the health care law references Filburn. Filburn lost a Supreme Court case 70 years ago that became a landmark decision defining the scope of Congress' power to regulate interstate commerce.

When the Supreme Court decides in 2012 whether Congress exceeded its authority in passing a key provision of the health care law, it will once again look back to the 1942 case called Wickard v. Filburn.

Filburn owned a small farm in Ohio. He maintained a herd of dairy cattle, sold milk, raised poultry.

And he felt wronged by Congress and, particularly, a law that was meant to regulate wheat prices. It had been Filburn's practice to grow wheat in the fall and use it in part to feed livestock on his farm and make flour for home consumption.

But the Agricultural Adjustment Act of 1938 limited the number of acres Filburn could plant. The law allotted him 11.1 acres, and he harvested 23 acres. He was subject to a penalty of 49 cents a bushel for the wheat that went over the limit. He sued.

Filburn said the law went beyond the reach of Congress. He argued the government had no business regulating wheat that was local in nature with only an indirect effect upon interstate commerce. His wheat was not being sold on the open market, it was for his own personal use.

Sound familiar? Sound anything like the argument by opponents of the health care law who say that while Congress can regulate interstate activity, it cannot regulate "inactivity" or an individual's choice to stay out of the market place?

A unanimous Supreme Court ruled against Filburn in the case, which is commonly referred to as "Wickard" for Claude R. Wickard, who was then serving as Secretary of Agriculture.

Justice Robert H. Jackson wrote that even though Filburn's activity was local, and "though it may not be regarded as commerce, it may still, whatever its nature, be reached by Congress if it exerts a substantial economic effect on interstate commerce."

Two conservative appellate court judges relied heavily on Wickard last year when they upheld the constitutionality of the individual mandate.

Judge Jeffrey S. Sutton, of the 6th Circuit Court of Appeals, wrote, "If, as Wickard shows, Congress could regulate the most self-sufficient of individuals -- the American farmer -- when he grew wheat destined for no location other than his family farm, the same is true for those who inevitably will seek health care and who must have a way to pay for it."

"Wickard comes very close to authorizing a mandate similar to ours," wrote Judge Laurence H. Silberman of the U.S. Court of Appeals for the District of Columbia, referring to the individual mandate at the core of the health care law that requires individuals to buy health insurance by 2014 or pay a penalty.

"Filburn argued that the act was unconstitutional as applied to him because he was not using the excess wheat for any activity in the interstate market. The Supreme Court unanimously rejected this claim," Silberman wrote.

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