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  NFIB v Sebelius: Wickard’s Wicked New Companion
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ContributorBrandonius Maximus 
Last EditedBrandonius Maximus  Jul 06, 2012 11:53am
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CategoryCommentary
AuthorBrian P. McGlinchey
News DateFriday, July 6, 2012 05:00:00 PM UTC0:0
DescriptionMy previous commentary, “Why Merely Repealing Obamacare Isn’t Enough,” was written in anticipation of the Supreme Court’s Obamacare verdict. Its aspirational title reflected my conviction that, for the Supreme Court to restore true Constitutional order, it couldn’t just reject the insurance mandate and its unprecedented intrusion into the lives of individual citizens—it would also have to overturn a deeply flawed 1942 decision that inflicted catastrophic damage on our national compact, a compact where the federal government is limited to powers specifically enumerated in the Constitution.

Today, that once-hopeful title now serves as a bitter reminder of a Supreme Court decision that—rather than restoring appropriate boundaries to federal power—instead broke an astonishingly wide new hole in the safeguards carefully crafted by our founders.

The Court Ceases Fire on the Commerce Clause

The 1942 case, Wickard v Filburn, inflicted upon the nation an utterly implausible if deviously imaginative interpretation of the Commerce Clause, one that disregarded the context in which the clause was written, severely eroded Constitutional restraint and helped enable the sprawling federal government we have today—and its ever-broadening threat to personal and economic liberty, state sovereignty and its own fiscal security.

In the health care case, while leaving Wickard fully intact, five justices found the Commerce Clause offered no justification for a federal government mandate to purchase insurance—or any other product. Chief Justice John Roberts’ opinion declared:
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