Where did Congress get the authority to dictate what kind of light bulbs we must buy?
This column might be one of the most boring you ever will read, but it is critically important that you read and understand the implications that may flow from 16 simple words in the Constitution.
These 16 words are called the Commerce Clause. In the next few years, you are going to hear many politicians use that term.
The clause includes 16 simple words, but they are powerful and controversial. Article 1, Section 8, Clause 3 says that Congress shall have the power “to regulate commerce with foreign nations, and among the several states, and with the Indian tribes.”
These few words and related Supreme Court decisions have led Congress to believe that it can compel us to do almost anything it wants. These 16 words are what Congress used to dictate that our showerheads can have a flow not to exceed three gallons per minute, dictate the size of our toilet tanks and tell us that we cannot buy incandescent light bulbs anymore.
You may disagree with me, and that is your right. But I do not believe that the Founding Fathers intended that these 16 words should vest in Congress the unfettered power to impose its will on the states and regulate the smallest details of our lives and the activities of American businesses — such as where they can locate, who they must hire, what wages they must pay, minimum and maximum, what prices they must charge for their products and on and on and on.
When did they gain this kind of power? It happened Nov. 9, 1942, when the Supreme Court ruled on a case called “Wickard v. Filburn.”
It was one of the U.S. Supreme Court’s most important rulings for two reasons: The case teaches us that a seemingly insignificant ruling can have far-reaching effects decades later, and the selection of Supreme Court justices and their prejudices and beliefs can move our nation to places that the founders may have found abhorrent.
You may be shocked by the details of this case. How could a case so insignificant be poised to change the course of American history?
Roscoe Filburn was growing wheat — some for sale on the open market, and some for personal consumption for himself and his family.
The U.S. government had established limits on wheat production based on farmers’ acreage. This drove up wheat prices during the Great Depression so that farmers would have more money.
Filburn was growing 12 acres more than the limits permitted by the government. He was ordered to destroy his crops and pay a fine, even though he was producing the excess wheat for his own use and had no intention of selling it.
Filburn argued that it was not a proper subject of federal regulation under the Commerce Clause because the wheat was being grown for personal consumption and that it never entered commerce at all, much less interstate commerce.
The Supreme Court reasoned that if Filburn had not used homegrown wheat, he would have had to buy wheat on the open market.
This effect on interstate commerce, the Supreme Court reasoned, may not be substantial from the actions of Filburn alone. But through the cumulative actions of thousands of other farmers just like him, the effect certainly would become substantial.
Therefore, Congress could regulate wholly noncommercial activity within a single state if such activity, viewed in the aggregate, would have a substantial effect on interstate commerce, even if the individual effects are trivial.
What does this mean?
Next month, the Supreme Court will hear a case in which “Filburn” may play a major role. The case is the constitutionality of ObamaCare.
The government is expected to advance two positions. It will argue that there is confusion among the 50 states in the delivery of health insurance, leaving substantial coverage gaps among the population, and that the Commerce Clause and the “Filburn” ruling give the government the right and power to stabilize and regulate. The government also will argue that the penalties for failure to comply are a tax and that the Constitution vests in Congress the power to tax.
If the government is successful with this use of “Filburn,” what other ways might it be tempted to use it in the future?
Suppose you have a vegetable garden. Let’s impose the logic and language of “Filburn” and see where it could take us.
Your home vegetable garden may not substantially affect commerce (agribusiness, a major political contributor. But what if millions of American families felt insecure about the future and planted backyard gardens?
Through the cumulative actions of millions of homeowners meeting their dietary needs with small backyard gardens, the effect certainly would become substantial.
Do you think that the agribusiness lobby would not move heaven and earth to put a stop to home gardens if home gardens negatively affected its business?
This is not idle and ridiculous speculation. Sen. Tom Coburn asked the following paraphrased question to Justice Elena Kagan during her confirmation hearings: If we passed a law that mandates that every American eat three vegetables and three fruits every day, would that violate the Commerce Clause?
Kagan replied that it “sounds like a dumb law.” Coburn agreed, but he asked again if it would violate the Commerce Clause.
Kagan went on to say, “But I think that the question of whether it’s a dumb law is different from the question of whether it’s constitutional, and I think that the courts would be wrong to strike down senseless laws just because they are senseless.”
Now, I can agree with the last part of her statement, but what bothers me greatly is the fact that she evaded and refused to answer the question of whether it would be constitutional to dictate what people can eat.
Following the “Filburn” reading of the Commerce Clause, there is virtually no limit to the federal government’s ability to regulate every aspect of your personal or business life.
If the language of the “Filburn” ruling were followed, then it would, in fact, be constitutional to dictate what Americans could eat, whether we should be required to wear hats and sunblock to protect us from skin cancer, how much of a limited resource such as electricity or water we will be allowed to use per month, or whether we could be required to exercise daily and keep a log to show to our government medical supervisor.
Do you really believe that a politician — who may be either avaricious or have a deep-seated belief in a different kind of government than ours — would let the Constitution or any of the guarantees in the Bill of Rights stop him or her from ignoring the will of the people to serve a powerful patron or special interest group of fellow travelers?
I have said this before, and I will say it again. Trusting a politician to act in your best interest without holding him accountable is like offering a crocodile a piece of chicken and trusting that he only will be interested in the chicken.
Freeman is a Richmond Hill resident.