The Court Case Haunting Health Care

Before there was the Tea Party, there was Roscoe Filburn. Almost 60 years ago, Filburn took a stand against what he saw as federal meddling with his family farm in Dayton. When the Agriculture Dept. fined him for exceeding his government-imposed quota for winter wheat production, Filburn sued, taking his case all the way to the Supreme Court.

The court's unanimous 1942 ruling against Filburn broadened Congress' right to regulate interstate commerce and opened the way for sweeping environmental, consumer protection, and workplace safety laws. The case still reverberates: The Supreme Court's interpretation of Wickard v. Filburn could determine whether challenges to President Barack Obama's health-care law are successful.

Filburn was a fifth-generation farmer who would proudly boast that he had never worked for another person. He raised livestock and poultry on his 90-acre farm as well as crops. When Agriculture Secretary Claude Wickard invoked the 1938 Agricultural Adjustment Act to impose production limits to reduce the supply of wheat and boost prices, Filburn balked.

Though he accepted federal subsidies, Filburn didn't agree that the government could limit how much he could plant. In the fall of 1940 he planted winter wheat on 23 acres, more than double his 11.1-acre allotment. That led to a $117.11 penalty and the lawsuit. Although quotas were meant to help farmers after a quarter-century of hard times, "he just didn't feel it was right for the government of the U.S. to tell farmers how much they should grow," says his son, Roscoe Filbrun Jr. of North Fort Myers, Fla. (The spelling of the family name varied over the years.)

The issue at the Supreme Court was whether Congress could regulate grain that never left Filburn's farm and instead went to feed his animals or to make flour for consumption on the premises. A unanimous court said national and global markets were affected; because Filburn grew his own wheat, he didn't have to buy it from others. While the farmer's impact on the interstate market might be trivial, "his contribution, taken together with that of many others similarly situated, is far from trivial," Justice Robert H. Jackson wrote.

Few recognized the ruling's significance at the time, says Jim Chen, the dean of the University of Louisville's law school. It nonetheless ushered in an era of effectively limitless congressional power. The court has since used the commerce clause to uphold the 1964 Civil Rights Act, reasoning that anti-discrimination rules could be applied to a Georgia motel because it served interstate travelers, and to an Alabama restaurant because it bought supplies from other states.

Twenty-one states are opposing the 2010 health law, which requires individuals to buy insurance or pay a penalty, on the grounds that Congress can't use the commerce clause to regulate "inactivity," or the lack of insurance purchases. The Administration responds that, as with Filburn's decision to grow and consume his own wheat, not buying insurance would affect the national health-care market, defeating efforts to spread risks and costs over a larger population. The states point to what they say is a crucial distinction: Filburn voluntarily participated in a regulated market by growing wheat. A federal judge in Virginia on Dec. 13 agreed with the states, declaring the law unconstitutional, while two other federal judges have upheld it.

Since 1995, the Supreme Court has shown new interest in curbing Congress' power. That year the court struck down a federal law restricting gun possession near schools, saying Filburn doesn't apply unless a commercial activity is involved. A 2005 case bodes more favorably for the Administration: Relying on Filburn, the court allowed prosecutions under federal drug laws for marijuana grown and used locally for medicinal purposes. The health-care challenges, which the lower courts are still considering, could arrive at the Supreme Court as early as the fall of 2011.

None of the recent cases have the same economic importance as the health law—or the wheat program. The upheld production quotas helped spur the rise of specialized agribusinesses and the demise of the integrated family farm, Chen says. Within a generation, Filburn had sold his land to developers, making way for a subdivision and shopping mall. He died in 1987.

The bottom line: The future of health reform may rest on the Supreme Court's view of a 1942 precedent involving a wheat farmer and production quotas.

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