What do these three have in common? The intrastate production of the first two were the subject of major Supreme Court cases, and those two cases may well determine how the upcoming case involving the third is resolved. The NYT reports that both supporters and opponents of health care reform legislation are looking to Wickard v. Filburn to support their positions.
We discuss the case in 2301 when we cover federalism, as well as related cases that demonstrate recent trends in the use of the commerce clause to justify national involvement in economic activities. In Wickard, a wheat farmer's production was judged to be subject to national regulations because it had "a substantial economic effect on interstate commerce.” So did marijuana according to a narrow majority in Gonzales v. Raich, which explained why national laws against "controlled substances" ( I love that euphamism) trumped state laws (established by citizen's initiatives) allowing their use for medicinal purposes.
Now the question is whether that same law applies to the individual mandate in the health care laws. There is an interstate market in insurance and not purchasing insurance imposes costs on those who do. Proponents of the law are hoping Justice Scalia uses this rationale in the case: “Congress may regulate even noneconomic local activity if that regulation is a necessary part of a more general regulation of interstate commerce,”
We will see soon enough. I recommend reading the NYT piece as well as this history of Wickard v Filburn linked to in the article.
