More On Filbrun

NYT:

At the time, the reaction to the Filburn decision emphasized how much power it had granted the federal government.

“If the farmer who grows feed for consumption on his own farm competes with commerce, would not the housewife who makes herself a dress do so equally?” an editorial in The New York Times asked. “The net of the ruling, in short, seems to be that Congress can regulate every form of economic activity if it so decides.”

The editorial, like much commentary on the case, seemed to suppose that Mr. Filburn was a subsistence farmer. But in fact he sold milk and eggs to some 75 customers a day, and the wheat he fed to his livestock entered the stream of commerce in that sense, according to a history of the case by Jim Chen, the dean of the law school at the University of Louisville.

In the health care case, the administration has insisted that the overhaul law is a modest assertion of federal power in comparison to the law Mr. Filburn challenged. “The constitutional foundation for Congress’s action is considerably stronger” for the health care law than for the law that the Supreme Court endorsed in 1942, the administration said in a recent brief. The health care law, the brief said, merely “regulates the way in which the uninsured finance what they will consume in the market for health care services (in which they participate).”

Opponents of the law take the opposite view, using an analogy. It is true that the federal government may “regulate bootleggers because of their aggregate harm to the interstate liquor market,” Mr. Carvin wrote in a recent brief . But the government “may not conscript teetotalers merely because conditions in the liquor market would be improved if more people imbibed.”

I have a hard time believing the Supreme Court will overturn Wickard v. Filbrun, but if anybody would, it will be the radical judicial activists appointed by Republicans on the Roberts Court.  They gave us Citizens United, so I don't expect anything legally impressive from them here.