Supreme Court on ObamaCare: At the End of a Fish Weir Formed of Bad Precedents

Tamzin A. Rosenwasser, M.D.,

A fish weir is a device placed in a stream or tidal channel to capture fish as they swim with the current. They swim into the mouth of a circular weir to the end, where they are trapped by their ignorance of how to reverse their course.

The fish are still in their element, swimming in the same water. Americans think they are still in the same element as our forebears: a nation of ordered liberty under the Rule of Law defined by our Constitution.

But justice is now constrained by precedents founded on tortured illogicality and contradictions. Courts hand down rulings based on unthinking stare decisis, in disregard of the Constitution and their Oath to support and defend it. Within this weir, the ambit of liberty grows ever smaller.

Construction of the weir began in the 1930s. The Supreme Court that FDR inherited thwarted his New Deal plans as unconstitutional. In six of eight cases, “New Deal” statutes were found unconstitutional, usually due to misapplication of the Commerce Clause. For example, in Schechter Poultry Corp v. United States (1935), the National Recovery Administration was ruled unconstitutional because Schechter Poultry was entirely intrastate. In Railroad Retirement Board v. Alton Railway Co. (1935), the Court struck down the Railroad Pension Act of 1934 as violating the Due Process and Commerce Clauses.

So FDR presented the “Judiciary Reorganization Bill of 1937” to circumvent and nullify the Court. It would have allowed him to appoint a new justice for every justice older than 70.5 years, which would have meant expanding the total to 15. The bill was unpopular, due to its destruction of the Separation of the Executive and Judicial Powers, and died. But during his four terms, FDR appointed eight justices, more than any President other than Washington. The new appointees, cronies of FDR, went along with his unconstitutional schemes. The others seem to have been intimidated; for instance Owen Roberts caved in, in West Coast Hotel v. Parrish (1937).

In what is termed the Lochner era, the Court upheld rights of private parties to contract. Those cases included Lochner v. New York (1923), which struck down a statute limiting work hours for bakers; Adkins v. Children’s Hospital (1923), which voided a minimum wage law for women in the District of Columbia as violating and restricting women’s liberty of contract; and Morehead v. New York ex rel. Tipaldo (1936), which overturned a minimum wage law for women and children.

Less than a year after Morehead, however, the Court overturned that decision in West Coast Hotel, which upheld a Washington State minimum wage law. Because of such laws, people without skills cannot gain skills on the job, because their labor is not worth what they must be paid. Instead of working, they are forcibly idled.

Thus, the sacrosanct policy of stare decisis, meaning “stand by the decision,” in which the Court accords deference to previous rulings, was jettisoned at will. But when stare decisis suits their prejudice, justices will trot it out, and all will bow to it.

The Court, however, is charged with deference to the Constitution, not to mistakes of the past.

The case Wickard v. Filburn, decided in 1942, is held to be the outer limit of the Commerce Clause so far. In that case, a farmer, Roscoe Filburn, refused to pay a fine for growing 23 acres of wheat, 12 more than he was allowed to grow under the Agricultural Adjustment Act. All of the wheat was for his private use, but in a unanimous opinion against him, it was ruled that his 12 acres of wheat came under the Commerce Clause because they could conceivably affect interstate commerce. Using that philosophy, the justices could rule against a butterfly flapping its wings in the Amazon. This outrageous ruling stands today, and was in fact cited frequently to justify the individual insurance mandate in ObamaCare. Fortunately, the Roberts Court set a limit on further expansion of the Commerce Clause.

Justices are reluctant to admit that they are flawed, fallible human beings—and so were their predecessors. Americans, however, are not fish. We need to swim back out of the fish weir and dismantle those precedents. We need to restore respect for the Constitution, liberty, and the Rule of Law.


Dr Tamzin Rosenwasser earned her MD from Washington University in St Louis.  She is board-certified in Internal Medicine and Dermatology and has practiced Emergency Medicine and Dermatology.  Dr. Rosenwasser served as President of the Association of American Physicians and Surgeons (AAPS) in 2007-2008 and is currently on the Board of Directors.  She also serves as the chair of the Research Advisory Committee of the Newfoundland Club of America.  As a life-long dog lover and trainer, she realizes that her dogs have better access to medical care and more medical privacy than she has, and her veterinarians are paid more than phy sicians in the United States for exactly the same types of surgery.


Comments are closed.