Filburn and the Tortured Logic of Government

Are you aware that when you grow a few peppers or tomatoes in your back yard, strictly for personal consumption, that the federal government has a right to regulate that activity?

You see, your peppers or tomatoes are a part of interstate commerce. 

But, you say, my tomatoes will never cross state lines. And furthermore I am never going to sell them. They are only for my personal consumption. How can this be considered interstate commerce?

Well, my friend, it sounds like you have never heard of Wickard v. Filburn.  

In 1942 the Supreme Court decided the case of Roscoe Filburn. Filburn was a farmer in Ohio who grew wheat for consumption on his own property. He was not going to sell it and it was not going to cross state lines. 

The United States government had set limits on the amount of wheat that wheat farmers could grow. They did this to keep the prices of wheat high. 

We can of course debate the wisdom of the federal government telling farmers how much they can grow. Advocates of free markets such as myself find this abhorrent. But Article 1 Section 8 permits the United States Congress "To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes". 

Congress has the power to regulate commerce between the states. But what does this have to do with a farmer in Ohio growing something on his own farm which will be consumed there and not sold and not cross state lines?

The court ruled that because he grew his own wheat he did not need to buy it from others, and this affected interstate commerce. 

If this seems like a bit of perverse and twisted logic that's because it is. This ruling was a mistake. Because of Filburn and its precedent, the federal government can now regulate every facet of our lives. It matters not whether it actually involves interstate commerce. 

Wickard v Filburn needs to be overturned. Not only is the decision wrong on its merits, it's precedent continues to haunt us in a myriad of ways. 

It is very unlikely that we will see Filburn overturned. "Stare Decisis", which is from Latin means "to stand by that which is decided." The principal is that the precedent decisions are to be followed by the courts.

And so when Chief Justice John Roberts rather torturously and inexplicably upheld Obamacare by calling it a tax and making actual modifications to the law it was an especially sad day. The government can now force people to buy things against their will. 

And now our president, who knows better, has decided to thumb his nose at the election results and go ahead and change immigration law on his own. 

The president knows that our constitution grants exclusive power to make laws to the legislative branch. He knows that he took an oath to faithfully execute the laws that Congress makes. We have all heard the recordings of him stating over and over that he doesn't have the authority to do what he is going to do. 

But the president is a student of history. He knows the Supreme Court will bend over backwards to leave political decisions in the hands of politicians. He knows they are reluctant to give Congress the standing to sue the President. 

This is not about the well-being of Hispanics. There is no urgency that would not allow the next Congress to have the chance to address the problem. This is about politics and power. 

 Somehow we must reverse the trend of having more and more power concentrated not only in the federal government but in the executive branch. When FDR tried to stack the courts they finally found the courage to say no. 

Maybe, just maybe, they will find that courage again. Perhaps they can avoid tortured logic and appeasement and do the right thing. 

But don't hold your breath. And don't let the Feds catch you with those peppers.