Politico’s excellent overview of some of the rulings that might be brought to bear in the deliberations over the President’s healthcare law next week explains, in layman’s terms, how the decision could very well “hinge on wheat, pot and broccoli.”

The 1942 case Wickard v. Filburn is one of the central precedents to both sides’ arguments, which upheld the federal government’s right under the commerce clause to regulate production before goods entered the marketplace. The farmer Roscoe Filburn was producing more than double the amount of wheat the Roosevelt administration’s quotas allowed, but he argued that by using the surplus himself – to feed his chickens – the activity failed to meet the definition of interstate commerce.

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 Justice Antonin Scalia. (link)

It’s worth pointing out that the purpose of the grain quotas was to raise the price of wheat, the Affordable Care Act was sold as an effort to keep healthcare costs down. And the logic of Wickard v. Filburn begins to feel strained when it’s applied to today’s world of vertically-integrated multinational companies – that’s basically what Filburn was doing, vertical integration. Say, for instance, the government decided to humor Steven Chu and raise the price of petroleum by imposing quotas on the amount of gasoline companies were allowed to refine. A strict interpretation of Wickard v. Filburn would mean ExxonMobil could not produce sufficient excess gasoline to power its fleet of trucks to transport the amount of gasoline the quota allowed. It could either sell less than permitted by the quota or purchase gas from its competitors, a bizarre and inefficient business arrangement.

Unfortunately, Wickard v. Filburn has morphed far beyond its original purpose of upholding Roosevelt’s New Deal price-fixing schemes. Even Justice Scalia concurred with the majority opinion in Gonzales v. Raich (2005) that “Wickard thus establishes that Congress can regulate purely intrastate activity that is not itself “commercial,” in that it is not produced for sale, if it concludes that failure to regulate that class of activity would undercut the regulation of the interstate market in that commodity.”

The commodity to which they referred was marijuana, and the ruling upheld Congress’ authority to criminalize the cultivation of a handful of medicinal houseplants in compliance with state law. This case is interesting because it introduces federalist tensions into the debate over the limits of the commerce clause; 26 states are now challenging the healthcare law based on the idea that Massachusetts can do what it wants with regard to individual mandates, but a nationwide mandate is unconstitutional. Gonzales v. Raich is a sort of anti-circumvention decision, that the government has the blanket privilege to regulate any activity that might have an impact on the government’s ability to regulate interstate commerce.

However, the 1995 ruling U.S. v. Lopez affirmed some limits on the commerce clause, deciding that if Congress could regulate an activity as distant from interstate commerce as the transaction of a handgun between two individuals, then the power would effectively be unlimited. As the Politico headline snarkily put it today, “Gun-free schools: a bridge too far.” Chief Justice Rehnquist’s majority opinion laid out three broad categories covered by the interstate commerce power; the channels of interstate commerce, its agents, and activities that “substantially relate to” or “substantially affect” it.

The current debate concerns whether inaction is an activity the federal government can regulate. The somewhat surprising decision of U.S. v. Lopez shows that the court recognizes some limits to the commerce power, meaning they will probably want the Obama administration to demonstrate the limits of the commerce clause should the ACA be upheld. If you can think of any, you’re more clever than I am.

So the individual mandate could be struck on those grounds, which leaves the rest of the law. The New Deal was the last time a major regulatory law was deemed unconstitutional in its entirety. The court’s ruling in Schechter Poultry Corp. v  U.S. laid out some limits on what could be defined as interstate commerce and also took issue with the delegation of power from the legislature to the executive branch in the form of discretionary industrial regulations.

Today the House voted to repeal the Independent Payment Advisory Board, though a corresponding bill has no chance of making it to the Senate floor. Sen. Mitch McConnell (R-KY) has said that in the ideal world where he’s majority leader, a full Obamacare repeal would be the first vote before the chamber. Expect a more muted tone from Senate Dems who are afraid of voicing support for the unpopular law. Not to worry though, various political organizing machines of both sides have been churning diligently to add entertainment to entitlement; next week promises rallies, prayer vigils, and more astroturf than Gillette Stadium.

Some links:

AP – High court has options on health care law

NYT – At Heart of Health Law Clash, a 1942 Case of a Farmer’s Wheat