Supreme Court SOS
February 21, 2013
Suppose Government Motors laid-off a few thousand members of the United Auto Workers Union because Americans—obstinately shortsighted as we tend to be—aren’t buying enough Chevy Volts.
If you agree with Ed Fallone’s reasoning in defending the constitutionality of ObamaCare, then you’d also agree that Congress could enact a law mandating that you buy a Volt.
This matters because Ed Fallone could be elected to the Wisconsin Supreme Court in April. He would make a 4-3 Liberal majority and ObamaCare reasoning would be applied to every significant case to come before the court. Bury your cash.
Last spring Professor Fallone wrote about a debate in which he defended the individual insurance mandate. The bottom line is that where interstate commerce is concerned, Ed Fallone doesn’t think there’s anything Congress can’t force you to do. And transactions—or even a refusal to engage in transactions–needn’t cross state lines to qualify as interstate commerce.
Fallone uses a 1942 decision to help make his case.
The case of Wickard v. Filburn (1942) is the closest precedent to the individual mandate. The law upheld in Wickard forced farmers to enter the market and purchase wheat that they might otherwise prefer to grow themselves.
The decision to forego health insurance is similar to the decision of the farmers to forego the wheat market. In both cases, Congress is requiring the consumer to participate in the national market. The only difference is that the farmer wants the wheat now while the health care consumer wants to delay their purchase as long as possible. If the offensive nature of the individual mandate simply reduces to a question of timing, then one has to question why such a distinction should make a difference.
It’s not the timing that offends us. It’s the endless ways in which government can control our lives under Fallone’s interpretation of the constitution.
Here’s one scenario: GM workers are laid off because nobody wants a Chevy Volt, they’ll collect federally-enhanced unemployment compensation. That generates a measureable cost with interstate implications and Professor Fallone says Congress can step in and order you to make a purchase to help abate such costs.
Don’t bother quibbling about private citizens being ordered to buy specific consumer products; Professor Fallone cites precedent claiming “plenary” power, as in “unlimited” power, for Congress to regulate interstate commerce. Heck, even if a legislative body doesn’t actually believe it has unlimited powers, the Ed Fallones of this world will say it does, and so it will.
Most Spring elections are low-turnout affairs in which ordinary good-citizen voters can be overwhelmed by big-union interests like those propelling Fallone’s campaign. The consequences would be grave.