Isn’t it part of the progressive canon that if you make a mistake, you shouldn’t have to live with it for the rest of your life?
If the Obama administration persuades the Supreme Court to uphold its health care overhaul law, it will be in large part thanks to a 70-year-old precedent involving an Ohio farmer named Roscoe C. Filburn.Mr. Filburn sued to overturn a 1938 federal law that told him how much wheat he could grow on his family farm and made him pay a penalty for every extra bushel.The 1942 decision against him, Wickard v. Filburn, is the basis for the Supreme Court’s modern understanding of the scope of federal power. It is the contested ground on which the health care case has been fought in the lower courts and in the parties’ briefs.
I understand the practicality argument in favor of stare decisis as a general temperament; continuity in the law is a good thing. But in this case we’re simply embedding a win for dramatic government overreach into our legal culture.
Both supporters and opponents of the health care law say the decision helps their side, and for three days starting next Monday, it will be at the center of the arguments before the Supreme Court about the law’s constitutionality……Opponents of the law draw a different lesson from Mr. Filburn’s case. They say it set the outer limit of federal power, one the health care law exceeds.
Is that truly the strategy? That would be similar to a pro-lifer arguing from the standpoint that Roe v. Wade is legally sound, and defines a point in the child’s life up to which abortion must always be allowed. It doesn’t fit the NYTimes‘ preferred narrative to beg the question of whether Wickard v. Filburn was decided correctly in the first place, but it is worth doing.
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