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Will Supreme Court's ignorance torpedo American freedom?

BY GUEST COLUMN | JUNE 22, 2012 6:30 AM

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Americans have never had reliable protection against the ignorance of the Supreme Court. During the past 80 years, Supreme Court justices have routinely rubber-stamped government policies that they grossly failed to understand. Black-robed economic illiteracy is perhaps the Obama administration's best hope in the court's pending decision on the constitutionality of Obamacare. 

At the oral arguments in late March, neither the justices nor the attorneys arguing the case seemed to understand the 1942 precedent case that provides the linchpin for Obamacare's individual mandate. In Wickard v. Filburn, the Supreme Court decreed that "it is hardly lack of due process for the government to regulate that which it subsidizes." But the Roosevelt-era court completely failed to recognize how the feds had ravaged a market before they forcibly seized control over all producers.

At the time of the 1942 ruling, the Department of Agriculture dictated how many acres each of the nation's 1.5 million wheat farmers could grow. Roscoe Filburn, an Indiana farmer who slightly exceeded his quota, claimed that the government had no right to prohibit him from growing wheat on his own land to feed to his livestock.

The court unanimously concluded that the government was justified even in restricting "the amount of wheat … to which one may forestall resort to the market by producing for his own needs."

The Roosevelt administration scorned exports, preferring to restrict domestic production in order to inflate U.S. prices. Nobel laureate economist Theodore W. Schultz denounced New Deal farm programs for "putting a 'Chinese Wall' around our export farmers."

Unfortunately, at least some of today's Supreme Court members are as clueless as the 1942 panel that swallowed the government's self-serving claims. Justice Stephen Breyer asked one of the lawyers arguing about Wickard's relevance to Obamacare, "Didn't they make that man growing his own wheat go into the market and buy other wheat for his — for his cows?" Similarly, Justice Ruth Ginsburg declared that "Wickard was you must buy; we are not going to let you use the home-grown wheat. You have got to go out in the market and buy that wheat that you don't want."

If Supreme Court justices have zero understanding of the most important precedent for Obamacare, it is unlikely that they will recognize the danger of sanctifying politicians' vast arbitrary power over health care.

There are stark parallels between the growing federal takeover of medical care and the 1930s takeover of agriculture. In the same way that high price supports spurred farmers to boost wheat production, government subsidies have driven up the demand for health-care services. The feds helped set off a health-care price explosion — and then invoked rising costs to justify seizing far more power over doctors, hospitals, insurance companies, and private citizens.

When Obama bewails the number of Americans without health insurance, he forgets to mention that legislative and bureaucratic mandates have made health insurance far more expensive than it would otherwise be. The market for medical services has been ravaged almost as badly as U.S. farm markets in the New Deal era.

The mere fact that government throws money at an activity does not entitle Uncle Sam to dictate endless terms to both producers and consumers. Neither Congress nor the Supreme Court has any right to control what they do not understand. "Good intentions" cannot absolve perpetual economic mangling.

James Bovard
Future of Freedom Foundations


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