US Senator Rand Paul (R-KY), a “founding member of the US Senate Tea Party Caucus” has filed a brief opposing the ACA.
Paul asks the Court to overturn Wickard v. Filburn, the 1942 case upholding the constitutionality of the Agricultural Adjustment Act of 1938. Mr. Filburn, a farmer, grew wheat on his farm for on-farm consumption in violation of the acreage limitations under the Act. The Court said:
even if appellee’s activity be local and though it may not be regarded as commerce, it may still, whatever its nature, be reached by Congress if it exerts a substantial economic effect on interstate commerce and this irrespective of whether such effect is what might at some earlier time have been defined as ‘direct’ or ‘indirect.’ (quoted in the Brief, at 14)
The brief boldly asks the Court to overturn this precedent for two reasons.
First, agriculture is not commerce, pointing to Randy Barnett’s “new evidence of the original meaning of the commerce clause,” published in the University of Chicago Law Review in 2001 and the Arkansas Law Review in 2003 (at 10-11). The question – according to the brief — is what did James Madison and Alexander Hamilton think the word “commerce” meant in 1789? The answer: commerce and agriculture are different things, therefore agriculture can’t be regulated under the commerce clause. This is a particularly strong form of originalism. If this were a religious text, the interpretive stance would be fundamentalist and literal.
Second, Congress has outsmarted the “substantial economic effects” test described in Wickard, giving Congress too much power:
For the first time in history, Congress has required private citizens to buy an expensive product from a private company every month for the rest of their lives, just by virtue of being U.S. citizens. (at 3)
In the final section of the brief, Paul attacks Medicaid (pp. 21-30), repeating arguments made more clearly by the States in their brief filed in January. In fact, the Senator didn’t follow the Court’s Dec. 8, 2011 briefing order, which asked for separate briefs on the MCP and Medicaid coercion issues.
The US Government’s brief defending Medicaid is due on Friday Feb. 10, with their amici (including yours truly) filing the following Friday, Feb. 17.