Thursday, March 29, 2012


Since we are all watching the case of Obamacare in the Supreme Court I thought I would send an article by one of my favorite writers, Thomas Sowell, in which he talks about some of the history of a key element of the case which is interstate commerce. Few of us were old enough in 1942 to have been aware of this case but it was this specific case that opened the flood gates to federal government reaching into our private lives.

Thomas Sowell

When a 1942 Supreme Court decision that most people never heard of makes the front page of the New York Times in 2012, you know that something unusual is going on.

What makes that 1942 case -- Wickard v. Filburn -- important today is that it stretched the federal government's power so far that the Obama administration is using it as an argument to claim before today's Supreme Court that it has the legal authority to impose ObamaCare mandates on individuals.

Roscoe Filburn was an Ohio farmer who grew some wheat to feed his family and some farm animals. But the U.S. Department of Agriculture fined him for growing more wheat than he was allowed to grow under the Agricultural Adjustment Act of 1938, which was passed under Congress' power to regulate interstate commerce.

Filburn pointed out that his wheat wasn't sold, so that it didn't enter any commerce, interstate or otherwise. Therefore the federal government had no right to tell him how much wheat he grew on his own farm, and which never left his farm.

The Tenth Amendment to the Constitution says that all powers not explicitly given to the federal government belong to the states or to the people. So you might think that Filburn was right.

But the Supreme Court said otherwise. Even though the wheat on Filburn's farm never entered the market, just the fact that "it supplies a need of the man who grew it which would otherwise be reflected by purchases in the open market" meant that it affected interstate commerce. So did the fact that the home-grown wheat could potentially enter the market.

The implications of this kind of reasoning reached far beyond farmers and wheat. Once it was established that the federal government could regulate not only interstate commerce itself, but anything with any potential effect on interstate commerce, the Tenth Amendment's limitations on the powers of the federal government virtually disappeared.

Over the years, "interstate commerce" became magic words to justify almost any expansion of the federal government's power, in defiance of the Tenth Amendment. That is what the Obama administration is depending on to get today's Supreme Court to uphold its power to tell people that they have to buy the particular health insurance specified by the federal government.

There was consternation in 1995 when the Supreme Court ruled that carrying a gun near a school was not interstate commerce. That conclusion might seem like only common sense to most people, but it was a close 5 to 4 decision, and it sparked outrage when the phrase "interstate commerce" failed to work its magic in justifying an expansion of the federal government's power.

The 1995 case involved a federal law forbidding anyone from carrying a gun near a school. The states all had the right to pass such laws, and most did, but the issue was whether the federal government could pass such a law under its power to regulate interstate commerce.

The underlying argument was similar to that in the 1942 case of Wickard v. Filburn: School violence can affect education, which can affect productivity, which can affect interstate commerce.

Since virtually everything affects virtually everything else, however remotely, "interstate commerce" can justify virtually any expansion of government power, by this kind of sophistry.

The principle that the legal authority to regulate X implies the authority to regulate anything that can affect X is a huge and dangerous leap of logic, in a world where all sorts of things have some effect on all sorts of other things.

As an example, take a law that liberals, conservatives and everybody else would agree is valid -- namely, that cars have to stop at red lights. Local governments certainly have the right to pass such laws and to punish those who disobey them.

No doubt people who are tired or drowsy are more likely to run through a red light than people who are rested and alert. But does that mean that local governments should have the power to order people when to go to bed and when to get up, because their tiredness can have an effect on the likelihood of their driving through a red light?

The power to regulate indirect effects is not a slippery slope. It is the disastrous loss of freedom that lies at the bottom of a slippery slope.

Thank Mr. Sowell

This case, if settled in favor of the government, will put an end to any idea that government has any limits of how or to what extent in can reach into and direct our lives. So a great deal more is on the line than medical services within the Obamacare law…

Although the purpose of the Supreme Court is to deal with these kinds of constitutional issues, I feel bad for the judges who will, given their individual histories, vote to keep this incredible law in place. History will not be kind in recanting their contributions to the court.

Meanwhile our President is running around the world doing what many describe as the "Obama shenanigans."

Let me start by saying, I don't think this message that our President is sending to President Vladimir Putin through Medvedev needs any comments from me… I think he is clear and to the point with our allies, that the missile shields that were supposed to protect them and us from Russian aggression is going out the window when he is reelected and flexible.

Here is the exchange that most readers have heard and seen:

OBAMA: On all these issues, but particularly missile defense, this, this can be solved but it’s important for him to give me space.

MEDVEDEV: Yeah, I understand. I understand your message about space. Space for you…

OBAMA: This is my last election. After my election I have more flexibility.

MEDVEDEV: I understand. I will transmit this information to Vladimir [Putin].

Given all that he has done in his first term in office can we not imagine what all else he has in store for America and it citizens in his flexibility statement during his second term? The fact is we can't. We are Americans. How can we possibly imagine that a government we created could ever turn on its citizens….It is/was a government for and by the people…. The government was us and we are the government with our elected representatives serving us.

What makes this so sad is that for the first time in our lifetimes has any president had such a disrespect of our nation and its people? What is also surprising is so many of our brother, sisters, cousins, neighbors, elected representative don't seem to have a clue as to what his goals are nor the long term impact of what he is doing.

(Ineptocracy (in-ep-toc'-ra-cy) - (A new word to me.) A system of government where the least capable to lead are elected by the least capable of producing, and where the members of society least likely to sustain themselves or succeed, are rewarded with goods and services paid for by the confiscated wealth of a diminishing number of producers.)

Things have changed. Things often look the same but are not…. Take a few minutes and watch the video below. I had to watch it twice before I could begin to accept what I was seeing, what I was hearing, even though I knew when the various laws went into place.

You may need to download this video before you watch it. On my satellite site it plays in a broken fashion. (Or you may need to copy the link in your browser and go directly into the site.)



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