Roscoe Filburn, an Ohio farmer, was the subject of a commerce case.

Photo provided by Mary Lou Filbrun Spurgeon via the University of Louisville,

Robert Franklin: What does winter wheat have to do with health care?

  • Article by: ROBERT FRANKLIN
  • April 8, 2010 - 7:02 PM

Minnesota's Republican governor, Tim Pawlenty, says the new federal health care law is unconstitutional. DFL Attorney General Lori Swanson says it's not.

If the legal question gets to the U.S. Supreme Court, it may be decided with the help of a long-gone small-time Ohio farmer who once was fined $117 for growing too much wheat.

A key question about the health care bill involves just how far the power of Congress to regulate interstate commerce reaches. For nearly 70 years, one influential precedent on that issue has been the peculiar case of farmer Roscoe Filburn, whose crop was deemed to influence commerce "among the several states" -- the kind of commerce the Constitution permits Congress to regulate -- even though none of the excess wheat left his farm.

Filburn's "most striking case" is relevant to a constitutional test of health care legislation, according to former Minnesotan Jim Chen, a Filburn scholar who is dean of the Louis D. Brandeis School of Law at the University of Louisville.

Attorneys general for 13 states have filed a joint suit claiming the new law violates the Constitution because it will require citizens to buy private health insurance and, they say, will levy an unlawful tax on those who don't, will encroach on state sovereignty and individual liberty, and will unduly burden state governments. Virginia has filed a separate suit. Pawlenty and Swanson may add their own arguments, on opposite sides.

Filburn's farm-based case "has to do with an activity a lot of folks in Minnesota understand," Chen, a former associate dean of the University of Minnesota Law School, said by phone last week.

Filburn ran afoul of Franklin Roosevelt's 1938 New Deal farm act. That law aimed to bolster sagging crop prices by limiting how many acres farmers could plant. In fall 1940, Filburn planted 23 acres of winter wheat instead of his allotted 11. He harvested 462 bushels, about double what the law allowed him. The government took him to court to collect a 49-cent-per-bushel penalty, even though Filburn used his excess wheat only to feed his chickens and cows, to bake his family's bread and for seed.

The court ruled unanimously in 1942 that Filburn was subject to interstate commerce regulation even though his actions might have seemed local and trivial and even, in Justice Robert Jackson's words, "may not be regarded as commerce."

The court argued what Chen calls "aggregation" -- saying that if large numbers of farmers followed Filburn's practice, there could be "a substantial economic effect on interstate commerce."

Home-grown wheat "supplies a need of the man who grew it which would otherwise be reflected by purchases in the open market," the court said, depressing demand and prices and thus defeating the purpose of production limits, which was to support prices.

Jackson acknowledged that the decision was upholding a law that would have the effect of "forcing some farmers into the market to buy what they could provide for themselves." Perhaps that's not so different from the government forcing more and healthier Americans into the health insurance market to spread the costs.

Filburn and his relatives eventually sold their farms to make way for a housing development and mall. He helped his wife open a dress shop, Chen reported, and died in 1987 at age 85.

But his case lives on, Chen has written, "at once a product of its era and a beacon across legal generations." For instance, both the wheat limits and federal prohibition of home-grown medical marijuana in California lie "squarely within Congress's commerce power," the court said in 2005.

In a long-ago constitutional law class, I thought the Filburn decision seemed like a stretch of logic. Chen writes that the case -- (Secretary of Agriculture Claude) Wickard vs. Filburn -- hastened the demise of small farms. And the Supreme Court has pulled back from it in some recent criminal cases.

But objections to the health care law seem like a stretch, too.

The mandate to have health insurance hits people "simply on the basis that they exist and reside in the United States," the complaining attorneys general say. Would a public option have satisfied them? Is this mandate more onerous than, say, the two years of compulsory military duty that many of us served as a price of citizenship? Or paying Social Security or Medicare taxes? Or being forced to buy private car insurance?

Insurance by definition is an "aggregation" of risk, and over a lifetime everyone will need health care. "It's not just you alone," Chen said, and "it's not just a snapshot in time."

If forcing farmers to buy (rather than grow) their wheat seems unfair, that's not a matter for the courts, Jackson's 1942 decision said: "The conflicts of economic interest between the regulated and those [advantaged] by it are wisely left under our system to resolution by the Congress under its more flexible and responsible legislative process."

Robert Franklin is a retired Star Tribune reporter and editor and University of St. Thomas adjunct faculty member.

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