Monday, April 02, 2012

Something Wickard This Way Comes

Writing for the liberal political site Politico, Josh Gersten makes a very important point about the Obamacare case:

If the justices knock out key parts of the law or bring down the whole thing, the reverberations could be felt across the legal landscape for generations to come, radically reining in the scope of federal power, according to supporters of the law and others who closely track the high court.

And if the justices decide the individual mandate is a constitutional overreach, these observers say, federal labor and environmental laws could be the next on the firing line.

I suspect that's correct and it's hard to see why that's a bad thing. One of the benefits of landmark cases like the one we saw last week is that it casts light on previous decisions that have affected how we live. One of the more important cases involved in what's happening now is the 1942 case Wickard v. Filburn. Roscoe Filburn was a wheat farmer who sold most of his crop, but kept a portion for his own personal use. Wickard in this case was Franklin Roosevelt's Agriculture Secretary, who fined Filburn because he had grown more wheat than he was allowed to under the Agriculture Adjustment Act of 1938.

Filburn argued that since he was growing the crop for his own personal use, it wasn't part of interstate commerce. The Supreme Court ruled otherwise and upheld the fine, reversing a lower court decision.

The summation from the link:

The wheat marketing quota and attendant penalty provisions of the AAA, even when applied to wheat not intended in any part for commerce but wholly for consumption on the farm, are within the commerce power of Congress. The power to regulate interstate commerce includes the power to regulate commodity prices and practices affecting them.

The effect of the AAA is to restrict the amount of wheat which may be produced for market and the extent to which one may avoid resorting to the market by producing for his own needs. That the production of wheat for consumption on the farm may be trivial in some cases is not enough to remove the grower from the scope of federal regulation where the aggregate effect of such behavior by many others is far from trivial.
You can see the issue involved and why it would apply to Obamacare: if you extend the logic of Wickard, then it's difficult to argue that Obamacare's depredations are unconstitutional. If Congress can tell a wheat farmer he can't keep part of his own crop, Congress can bloody well tell anyone to do anything it wants to do, since just about anything you do could, in theory, affect interstate commerce.

Wickard and the attendant cases that have flowed from it are the reason that the feds can tell you not to build something on your own land, among other things. Wickard may also be the reason that Obamacare may stand. It's possible that we are all Roscoe Filburn; the Obamacare decision will go a long way to determining that.


W.B. Picklesworth said...

Nice post title! I'd like to think that my thumbs were pricking at eleven, but I don't have judicial premonitions.

W.B. Picklesworth said...
This comment has been removed by the author.
Night Writer said...

We are all Roscoe Filburn.

We should get a large group together, all wearing overalls and straw hats and holding signs saying, "I am Roscoe Filburn." The media would be all over that, wouldn't they?

Brian said...

I wouldn't hold your breath on this.

The Court has been, on balance, extremely deferential to the executive, congress, and (especially) police for a very long time. Most of the so-called originalists and strict constructionists (esp. Scalia) have had no problem with an expansive reading of (among other things) the commerce clause when it suits essentially conservative ends.

If the mandate is overturned, it will be exceptional ruling. Not an inflection point. Justices that would seriously roll back state power on constitutional grounds are unlikely to be appointed by presidents of either party, and even less likely to be confirmed.

Brian said...

Exhibit Only the Most Recent:

Gino said...

@Brian: hey, after what my docs and and a parade of cute asian nurses have seen by now, a strip search is gravy.

there was a case in recent history where the court ruled something along the line that growing weed for your own use came under the interstate commerce clause. i cant remember who sided where. pretty sure it was 5-4, though.

we need a Paul(or similar) administration, if nothing else but to appoint judges.

Brian said...

It was Raich v. Gonzales, and it was 6-3. Thomas, O'Connor, and Renquist dissenting.

(I swear I'm not that much of a Supreme Court geek. But I happen to know this case pretty well.)

Gino said...

one more reason to appreciate Thomas.

Mr. D said...


You are correct, which is why I posted this. The Wickard case is the foundation of nearly 70 years of governmental depredations, of which Raich was just another one.

The tension here is that most people recognize that if Obamacare stands, it means that the Commerce Clause can be used to justify ANYTHING that the government wants to do, so the Supremes might want to take it up. But because of stare decisis, they might feel like they have to follow the law to the level of reductio ad absurdum, with Wickard as the marker that sets them down this path.

Brown v. Board of Education happened before most people who read this feature were born, so the decision in the Obamacare case will be the most important one of our lifetimes, by a pretty significant margin.

As for the rarity of reversals, I would say this -- we had Bowers v. Hardwick in 1986, but then Lawrence v. Texas 17 years later, so a reversal can happen.

Gino said...

"stare decisis"

basically means, previous fuck ups continue?

Mr. D said...

basically means, previous fuck ups continue?


Bike Bubba said...

Gino; technically, it's "Let the decision stand," but per what I wrote about the subject a bit back, your characterization isn't too far off.

Somehow it seems like a more basic issue; do we really want government telling us what to do on this level? It's not like we have a great record of cost savings with government involvement in this regard, after all.

Brian said...

Judicial activism is basically when the court rules to change something in a way that I don't personally like. The rest of the time it's merely correcting previous decisions that were bad.

I think if most people were honest about it, they think that way, too.

The judicial process (just like the legislative process) is a means, not an end. It's exhausting (and intellectually pointless) to pretend otherwise.

CousinDan 54915 said...

I couldn't care less what Anita Hill thinks.

Brian said...

A few additional thoughts here: