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Roscoe Filburn conservatism

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In 1941 Roscoe Filburn accepted large federal subsidies, receiving far-above-market prices for his commodities, in exchange for agreeing to limit his production to a robust 11 acres. He then proceeded to plant 23 acres, and (not very plausibly) asserted that he didn’t intend to sell any of the extra 239 (!) bushels he grew. He brought a suit arguing that applying conditions to the subsidies a large commercial farm voluntarily agreed to accept as part of a plan to stabilize prices national markets for commodities exceeded the federal power to regulate interstate commerce and violated the due process clause. A unanimous Court rejected Filburn’s silly argument that he had an inalienable right to take the federal government’s money but not plow its driveway with little difficulty:

It is well established by decisions of this Court that the power to regulate commerce includes the power to regulate the prices at which commodities in that commerce are dealt in and practices affecting such prices…It is said, however, that this Act, forcing some farmers into the market to buy what they could provide for themselves, is an unfair promotion of the markets and prices of specializing wheat growers. It is of the essence of regulation that it lays a restraining hand on the self interest of the regulated and that advantages from the regulation commonly fall to others. The conflicts of economic interest between the regulated and those who advantage by it are wisely left under our system to resolution by the Congress under its more flexible and responsible legislative process. Such conflicts rarely lend themselves to judicial determination. And with the wisdom, workability, or fairness, of the plan of regulation we have nothing to do…

In its effort to control total supply, the Government gave the farmer a choice which was, of course, designed to encourage cooperation and discourage non-cooperation. The farmer who planted within his allotment was in effect guaranteed a minimum return much above what his wheat would have brought if sold on a world market basis. Exemption from the applicability of quotas was made in favor of small producers. The farmer who produced in excess of his quota might escape penalty by delivering his wheat to the Secretary or by storing it with the privilege of sale without penalty in a later year to fill out his quota, or irrespective of quotas if they are no longer in effect, and he could obtain a loan of 60 per cent of the rate for cooperators, or about 59 cents a bushel, on so much of his wheat as would be subject to penalty if marketed. Finally, he might make other disposition of his wheat, subject to the penalty. It is agreed that as the result of the wheat programs he is able to market his wheat at a price ‘far above any world price based on the natural reaction of supply and demand.’ We can hardly find a denial of due process in these circumstances, particularly since it is even doubtful that appellee’s burdens under the program outweigh his benefits. It is hardly lack of due process for the Government to regulate that which it subsidizes.

Jackson’s arguments are unanswerable. And yet a whole libertarian mythology has been constructed around this case, turning Filburn from a freeloader who wanted the federal government’s money while rejecting the conditions that were central to the purpose of the program into a hobbyist crushed by the tyranny of federal power. His spirt lives on in today’s Republican Party:

The Ohio lawsuit centers on a $350 billion fund meant to help cities, counties and states cover the costs of responding to the coronavirus pandemic. The stimulus law opened the door for cash-strapped local governments to tap federal aid to pay for expenses, including for first responders, although it prohibited states from using the money to directly or indirectly offset new tax cuts.

To Ohio, though, the restriction on cutting taxes is overly broad, putting states that had planned any tax cuts — even those that predate the pandemic — in jeopardy of losing access to the federal relief money. Yost said the federal government had no right to make a such demand, and the attorney general asked a federal court in Ohio to grant a preliminary injunction preventing the portion of the stimulus law from being enforced.

“The Tax Mandate thus gives the States a choice: they can have either the badly needed federal funds or their sovereign authority to set state tax policy. But they cannot have both. In our current economic crisis, that is no choice at all,” Ohio’s lawyers wrote in the court filing.

Yost, in an interview, said the “plain meaning of the statute is unconstitutional.”

The lawsuit echoes the criticisms raised by other Republican leaders, who wrote Treasury Secretary Janet Yellen on Tuesday to ask her to clarify the law’s application by March 23 — or face “appropriate additional action.” The letter from the attorneys general of Arizona, Georgia, West Virginia and 18 other states said the stimulus, absent clarification, “would represent the greatest invasion of state sovereignty by Congress in the history of our Republic.”

In rational universe, these arguments would be treated by the federal courts like Filburn’s were — if you don’t like the conditions, you don’t have to take the money, and the idea that having to put off tax cuts for a couple years represents the end of state sovereignty is very dumb. The problem is that John Roberts threw out the perfectly workable test to evaluate the constitutionality of conditional federal grants Rehnquist used in South Dakota v. Dole, because under this test the federal government’s umpteenth revision of the conditions attached to Medicaid grants was plainly constitutional. Roberts didn’t actually think the new conditions placed on Medicaid grants were unconstitutional either, but under the novel doctrine of “we must do something to damage the ACA, this is something, and as a bonus is hurts the poorest recipients of federal aid, so good enough” he re-wrote the ACA, denying healthcare to millions of people while leaving federal spending power doctrine a total shambles with no remotely workable standards going forward.

There is, alas, a good chance these lawsuits will win under Roberts’s new “conditions Republicans don’t like are unconstitutional” rule, is what I’m saying.

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