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Wickard v. Filburn was wrongly decided

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In 2009, I along with a group of Tea Party leaders were permitted a sit down question and answer session with our former congressman, John Boccieri. Then Representative Boccieri had refused to conduct a town hall meeting because he sought to avoid the sorts of confrontation between voters opposed to the Affordable Care Act and it’s supporters. Each member of the group thought to give their best arguments in opposition. Members of our cooalition, printed out the House bill and read it. Large passages were highlighted and they questioned Boccieri extensively.

My questions to Mr. Boccieri were more basic. Was the bill they discussed even constitutional? I asked him, “What is the constitutional grant of authority for congress to enact a bill that forces citizens to purchase a product?”

John answered that he felt the commerce clause granted congress unlimited powers to regulate health insurance and the power to force people to purchase health insurance. My response was that this was an expansion of the 1942 supreme court case Wickard v. Filburn and previous commerce clause supreme court cases I had researched back to the early 1800s. Boccieri seemed quite unaffected by my argument and went back to Washington to vote in favor of the House portion of the bill later called the Affordable Care Act. He lost his seat in Congress in 2010 because Tea Party voters remembered that John was more concerned with voting with his party rather than listening to concerned voters.

Within the next couple weeks, the SCOTUS will hand down their decision ruling Obamacare constitutional or unconstitutional. Let’s hope that those people reading the bill along side the constitution strike down the entire bill and declare both “The Affordable Care Act” and the previous decision “Wickard v. Filburn” to be a badly decided and reestablish the original intent of the constitution. The commerce clause was about trade between the states and between foreign nations and ourselves. Commerce is not a constitutional grant of authority for government to regulate every activity as somehow connected to commerce.

Reason TV had the video above posted on YouTube with this commentary. Produced by Austin Bragg.

*Update: U.S. District Judge Roger Vinson ruled that because the Patient Protection and Affordable Care Act’s individual mandate to purchase health insurance is unconstitutional, the entire law “must be declared void.” Judge Vinson cites this Reason.tv video on page 47 of his decision.

The Commerce Clause of the U.S. Constitution grants Congress the power to “regulate commerce . . . among the several States,” and for more than 100 years federal lawmakers invoked it for a very narrow purpose—to prevent states from imposing trade barriers on each other. But today members of Congress act as if it gives them the authority to do just about anything—including forcing you to eat your vegetables.

During her Supreme Court confirmation hearings, Elena Kagan seemed to accept that the Commerce Clause could, in theory, give Congress the power to dictate what Americans eat. And what about ObamaCare’s “individual mandate,” which forces Americans to purchase health insurance? ObamaCare opponents are lining up to challenge its constitutionality, but supporters say it’s justified—you guessed it—under the Commerce Clause.

How did a clause intended as a restriction on states wind up giving Congress a green light to regulate noncommercial, local, and purely private behavior? How will ObamaCare stand up against the legal challenges brought by the states? Legal titans John Eastman (Chapman University Law Professor) and Erwin Chemerinsky (Founding Dean, University of California, Irvine School of Law) slug it out to to determine whether or not Congress has been abusing the commerce clause.

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