Health law could hinge on wheat, pot and broccoli


Wheat, a marijuana plant and broccoli are shown. | Reuters

Wheat farming and pot growing both produced Supreme Court precedents. | Reuters
By JOSH GERSTEIN | 3/22/12 4:39 AM EDT

The survival of President Barack Obama’s signature health care law may come down to wheat, pot, guns — and a nagging question about broccoli.

Strange as it may seem, those diverse topics are apt to surface repeatedly during next week’s arguments at the Supreme Court over the health law’s constitutionality.


Wheat farming, pot growing, guns near schools and a violence-against-women law all produced high court precedents key to the federal government’s power to regulate interstate commerce — and to whether Congress can require most Americans to get health insurance or pay a fine.

“It’s wheat, dope, sex fiends and gun-toting teenagers,” quipped Stanford law Professor Pam Karlan.

Broccoli doesn’t involve a precedent, but it’s raised its green head in legal arguments over the law: If the individual mandate is constitutional, just how far could Congress go to address rising health care costs? Could it, for instance, force citizens to eat broccoli?

Here’s a quick look at the four cases — and the broccoli brouhaha — that could drive the health care debate at the Supreme Court:

Feds get long reach on wheat

No previous Supreme Court case is a perfect match for the Obama health care law, but a 70-year-old ruling about an Ohio wheat farmer comes closest.

Roscoe Filburn fought a federal law that imposed a penalty on every bushel of wheat he grew above a certain quota. Filburn said all of the extra grain was being consumed on his farm, but the court ruled that the federal government could regulate his crop because every bushel he grew was one he wouldn’t buy from others.

Even “if we assume that it is never marketed, it supplies a need of the man who grew it which would otherwise be reflected by purchases in the open market,” Justice Robert Jackson wrote for a unanimous court in Wickard v. Filburn. “Home-grown wheat in this sense competes with wheat in commerce.”

The two well-known conservative judges who upheld Obama’s health care law, appeals court judges Jeffrey Sutton and Laurence Silberman, put great weight on the wheat case.

“If, as Wickard shows, Congress could regulate the most self-sufficient of individuals — the American farmer — when he grew wheat destined for no location other than his family farm, the same is true for those who inevitably will seek health care and who must have a way to pay for it,” wrote Sutton, a former law clerk to American farmer .

Opponents of the health law insist Wickard supports their argument. After all, they say, the farmer wasn’t penalized for not growing wheat, nor forced to sell it. “Congress has never compelled people to engage in commerce by entering into a contract with a private company,” said Randy Barnett, a law professor at Georgetown and early critic of the bill. “That we’ve gone 230 years without Congress ever having done this suggests this power doesn’t exist.”

Some conservatives have urged the justices to take a simpler approach to Wickard: Get rid of it.

“Wickard is wrongly decided and it needs to be overturned,” Chapman University law professor John Eastman told the libertarian magazine Reason in 2010.

Read more: Health law could hinge on wheat, pot and broccoli - Josh Gerstein - POLITICO.com