Jan. 30, 2012— -- 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.
Kevin C. Walsh, an assistant professor of law at the University of Richmond School of Law, said the Wickard decision became the high-water mark of Congress' reach under the Commerce Clause.
"After Wickard was decided, it was thought for at least the next 50 years there was nothing outside the reach of Congress' power," Walsh said..
Not surprisingly, Paul D. Clement, a lawyer who is challenging the health care law on behalf of 26 Republican governors and attorneys general, sees Wickard in a different light than his opponents.
The Supreme Court decided to devote a whopping 5 1/2 hours of arguments to the health care case. "That's an awful lot of time for a case that is squarely covered by Wickard," Clement said wryly at a recent talk sponsored by Georgetown University School of Law.
In court briefs, Clement has distinguished his case from Wickard by arguing that Filburn was already in the marketplace as a wheat farmer. He said in Wickard, Congress was allowed to regulate "a single farmer's apparently de minimis production of a nationally marketed commodity. But it would not justify a law requiring others to produce or purchase that commodity."
Two judges on the 11th Circuit Court of Appeals who voted to strike down the law agreed with Clement.
"Wickard is striking not for its similarity to our present case, but in how different it is," Judges Joel F. Dubina and Frank M. Hull wrote.
The judges reasoned that Filburn was already a commercial farmer, thus in the marketplace, and that Congress left him with choices.
"He could have decided to make do with the amount of wheat he was allowed to grow. He could have redirected his efforts to agricultural endeavors that required less wheat. He could have even ceased part of his farming operations."
The judges said that regulation imposed by Congress was a limitation, not a mandate similar to the individual mandate in the health care law.
To make the distinction crystal clear, the judges wrote, "Individuals subjected to this economic mandate [in the health care law] have not made a voluntary choice to enter the stream of commerce, but instead are having that choice imposed upon them by the federal government."
Both sides of the issue will try to use Wickard in the best light.
"The government says when you look at the aggregate economic cost of the people who choose not to buy health insurance but later seek health care, it substantially affects interstate commerce," Walsh said. "On the other hand, opponents will say that Wickard involved the regulation of someone who was already engaged in interstate commerce by virtue of his farming operation."
There are certainly other cases regarding the role of Congress that will be heavily relied upon by both sides of the case, but perhaps no others where the extent to which the facts resemble the health care litigation will be so thoroughly contested.
James Chen, dean and professor of law at the University of Louisville, said Wickard will stand out because it "captures the imagination of the American public."
"We imagine farming to be the one profession anyone can do without interference. Filburn was a small family farmer in what is now suburban Dayton, Ohio. His story -- more than the other commerce clause cases involved here -- will resonate with the American public. "