Home / General / “It is hardly lack of due process for the Government to regulate that which it subsidizes”: The Ballad of Roscoe Filburn

“It is hardly lack of due process for the Government to regulate that which it subsidizes”: The Ballad of Roscoe Filburn

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mr-plow3_

Recently, Bijan reminded me in comments that I’ve never quoted some of my favorite passages from the United States Reports here. These quotes from Robert Jackson’s opinion in Wickard v. Filburn aren’t well known because they come from the section dismissing the particularly frivolous due process claim. But they sum up the case and the having-it-all-ways faux libertarianism the case has come to represent in many quarters perfectly:

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.

[…]

Only when he threshed, and thereby made it a part of the bulk of wheat overhanging the market, did he become subject to penalty. He has made no effort to show that the value of his excess wheat consumed without threshing was less than it would have been had it been threshed while subject to the statutory provisions in force at the time of planting. Concurrently with the increase in the amount of the penalty, Congress authorized a substantial increase in the amount of the loan which might be made to cooperators upon stored farm marketing excess wheat. That appellee is the worse off for the aggregate of this legislation does not appear; it only appears that, if he could get all that the Government gives and do nothing that the Government asks, he would be better off than this law allows. To deny him this is not to deny him due process of law.

Filburn was not a hobbyist growing a little food for his family. (If he was, there would have been no case; the quotas didn’t apply to farms growing less than 15 acres of wheat.) He was someone with a commercial farm who not only wanted to sell substantial amounts of wheat but wanted to take advantage of federal price supports that allowed him to sell the wheat for more than twice the price it would command on the world market. While he wanted to take advantage of the federal guarantees, however, he wasn’t willing to comply with the federal regulations, which included a production quota that was a crucial element in the price supports. Filburn’s opposition federal regulation of the interstate wheat market applying to him was highly selective.

The only reason to be the slightest bit concerned about the Court’s obviously correct holding in Filburn is the slippery slope. Without it, as one commenter [mds!] astutely noted, you’re left with an argument that the congressional regulation of commercial wheat production is fine, but actually applying the regulation to a commercial entity involved in wheat production just goes too far. But when the facts are no longer carefully sanitized, it’s pretty hard to argue that there’s a direct path between Wickard and JACK BOOTED FEDERAL THUGS seizing the broccoli from your home garden while simultaneously requiring you to purchase it from Big Broccoli. Article I gives the federal government the authority to regulate interstate commodity markets, and doing so requires the federal government to regulate individual commercial entities, even if not everything these entities grow will be sold on interstate markets. It’s really not a complicated question, and Wickard is not a slippery slope to unlimited federal power.

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  • mds

    as one commenter astutely noted

    Woo-hoo!

    [Triumphant virtual fist pump]

    [Triumphant virtual victory lap]

    … Hang on, “one commenter”? Sheesh, it’s not as though my pseudonym were cryptic, yet unmemora—Oh. Right.

    • postmodulator

      Look on the sunny side. The only time I was ever alluded to on the FP it was to call me a concern troll.

      (Obligatory joke: I found that very troubling.)

    • Hey, I’ve had two front page name checks in one month! All time record!!

    • Weird stuff keeps happening when I try to comment (pop up ads, random posts), so I guess this is the inevitable backlash.

  • “The Ballad of Roscoe Filburn” always was one of my favorite Flatt & Scruggs songs.

    • Scott Lemieux

      If James McMurtry doesn’t use the title I will be gravely disappointed.

  • Denverite

    Scott, just to play devil’s advocate (and to be clear, I am playing devil’s advocate here — I don’t agree with this view), couldn’t you argue that NFIB shows that Wickard was a slippery slope? That is, that Wickard was the ultimate basis for passing a law saying that random Joe Citizen is required to purchase health insurance even if he didn’t think he needed it and/or had an alternative method to take care of his health care needs?

    • Murc

      Except that’s not how the ACA is structured.

      Nobody is required to buy health insurance in this country, and nobody is penalized for not doing so. We simply have a tax structure in this country that taxes people who do not buy health insurance differently than those who do. Just like we tax those who own homes differently from those who do not. Or those with higher incomes. Or etc.

      • Denverite

        So — like John Roberts — you’re saying that the ACA mandate is only saved because it’s assessed and enforced by the IRS? That if instead, you had to cut a check to HHS or whatever agency if you didn’t maintain coverage it would be impermissible?

        Taking off my devil’s advocate cap now, I think that’s just flat wrong (regardless of what Roberts concluded).

        • Murc

          It’s worth noting such end-runs to satisfy the letter of the law and of the constitution are common, Denverite. It’s why the national speed limit had to be structured via a threat to withhold highway funding rather than being able to enforce it directly, for example. It seems like a silly distinction but, well, the law is full of silly distinctions until suddenly it isn’t.

    • Scott Lemieux

      couldn’t you argue that NFIB shows that Wickard was a slippery slope?

      Not really — the cases are fundamentally similar. It’s only a “slippery slope” in the sense that if the government has the authority to do thing x it also has the authority to do similar thing y. There is a slippery slope the other way — if you think Wickard was wrong, it’s very hard to argue against the neoconfederate opinion in Sebelius.

  • Srsly Dad Y

    I’ll stick this here, not because it fits exactly (what else is new), but because otherwise I’ll forget.

    The only published study I’ve seen (albeit suspect, because authored by law professors and to be published in a law review) suggesting that people actually learn something distinctive in law school. Lawyers and judges were better than non-lawyers at filtering out their policy preferences in addressing a statutory interpretation issue, law students were somewhere in the middle.

    At some level, policy preferences can’t be filtered when interpreting the Constitution.

  • DrDick

    To be fair, there is nothing “faux” about the libertarianism expressed in these critiques. Indeed, it is the real, aythentic, lived libertarianism, which fundamentally comes down to having your cake and eating it too and “you ain’t the boss of me!”

  • Murc

    I have to confess, Scott, I’m flabbergasted I didn’t know this about Wickard until you told me. I’ve seen people, not just random people on the intertubes but lawyers, jurists, respected commentators, etc. treat Wickard as though Wickard was simply growing wheat for his own consumption and had no intention of selling it, and the government told him “no.” That’s… well, that’s really not the case.

    I suspect you and I still have many disagreements on the commerce clause interpretations that arguing about Wickard is usually used as a proxy for, but Wickard itself would appear to not only be a slam dunk, but utterly banal.

    (You must be a pretty good professor.)

    • Johnny Sack

      There are a lot of bad faith arguments out there. I recommend reading Wickard and its progeny for yourself to become less susceptible. That’s not intended as an insult, by the way.

  • dilan

    The slippery slope HAPPENED. It was Raich!

    And Scott’s continual refusal to acknowledge that and pretend that Wickard’s critics are all a bunch of idiotic libertarians raising completely fatanstical slippery slope scenarios is entirely dishonest and water carrying for the tyrannical drug war he claims to hate.

    Thanks to Wickard, YES, the federal government CAN arrest you for what you grow in your own garden for your own use. They CAN search your house. They can send the battering rams and the swat teams in and shoot your pets and scare your children.

    This is no theoretical slippery slope. This actually happened, and Wickard was the key case that justified it. Saying “well, if I pay attention to facts that the Supreme Court found completely unimportant in their ruling, Wickard is actually a limited ruling” is either the mark of someone who might need to go to an American law school and actually study this stuff before he continues commenting on US constitutional law, or dishonesty from someone who should know better.

    • Scott Lemieux

      The slippery slope HAPPENED. It was Raich!

      There’s not a slippery slope in any meaningful sense. We’re talking about a commodity whose possession and distribution had been routinely banned by state governments. The home growing of commodities that are not routinely banned will not be practically affected by Wickard.

      and water carrying for the tyrannical drug war he claims to hate.

      Thanks to Wickard, YES, the federal government CAN arrest you for what you grow in your own garden for your own use. They CAN search your house. They can send the battering rams and the swat teams in and shoot your pets and scare your children.

      And if Wickard is overruled, state governments CAN still arrest you for what you grow in your own garden for your own use. They CAN search your house. They can send the battering rams and the swat teams in and shoot your pets and scare your children. And, for that matter, there would still be many cases in which the federal government can do all of these things, and these are the cases where federal action is by far the most likely.

      Your’re a rather pathetic mark here. The drug war is bad policy. But what’s bad about it is not the involvement of the feds, as opposed to our benevolent local overlords. And once you’ve created arbitrary exceptions to the federal power to regulate interstate commerce, you’re also threatening the ability of the federal government to effectively regulate health care markets, the environment, health and safety, nondiscrimination, etc. etc.

      pay attention to facts that the Supreme Court found completely unimportant

      These facts were not unimportant. Jackson was emphasizing that these regulations of what was apparently “local” economic activity were crucial to a federal regulatory scheme. Which is why this unanimous opinion has been considered unanswerable by every even remotely liberal Supreme Court justice and the vast majority of liberal legal scholars, and its critics are generally libertarians, along with a few rubes who seem to think that there’s some way of creating a neoconfederate reading of the commerce clause that will apply only to drug cases.

      • dilan

        There’s not a slippery slope in any meaningful sense. We’re talking about a commodity whose possession and distribution had been routinely banned by state governments. The home growing of commodities that are not routinely banned will not be practically affected by Wickard.

        Once again, you are defending a limited opinion the Court didn’t actually write. In fact, not only is Raich not limited to commodities which are routinely banned by state governments, but the specific plant (NOT “commodity”, that’s a dishonest change of words by you) that Raich was growing was PERMITTED by the laws of the state she was in. In other words, the Court’s specific holding was that it was NOT at all limited to things that state governments banned.

        The drug war is bad policy. But what’s bad about it is not the involvement of the feds, as opposed to our benevolent local overlords.

        No Scott, the federal government is part of why it is bad. Because they have more money. Because they have more zealots. Because they have more power. And because they enforce it universally, even in localities where the authorities would be fine with letting people grow their own pot (such as Mendocino County, California).

        The federal government has a lot more power than the states do, and that means a much greater capacity for zealotry and tyranny. That can be good, sometimes– we needed it in the discrimination area. But it can also be bad. And in the drug war, it has been very, very bad.

        And once you’ve created arbitrary exceptions to the federal power to regulate interstate commerce, you’re also threatening the ability of the federal government to effectively regulate health care markets, the environment, health and safety, nondiscrimination, etc. etc.

        There’s nothing “ARBITRARY” about it. THE FUCKING CONSTITUTION SAYS “COMMERCE AMONG THE SEVERAL STATES”. Saying that those words have their natural meaning (which excludes what someone grows in their own garden for their own use) is not arbitrary. It’s classic textual interpretation. You may think it is wrong. But it is not arbitrary. Learn what words mean before you use them.

        And while it is a long discussion, no, overturning Wickard will not strip the federal government of all its powers to regulate things. Environmental issues spill across borders and will still fall under the commerce clause. Health care will still be constitutional under the taxing power. The conditional spending power will still exist. McClung and Heart of Atlanta Motel are distinguishable in that they DID involve actual commercial activity, and at any rate, bear in mind nondiscrimination laws ALREADY contain exceptions for local noncommercial activities, they are not completely uniform, and that hasn’t destroyed their effect.

        its critics are generally libertarians, along with a few rubes who seem to think that there’s some way of creating a neoconfederate reading of the commerce clause that will apply only to drug cases

        The amici in Raich included the California Nurses Association, the Leukemia-Lymphoma Society, the Lymphoma Foundation of America, the Marijuana Policy Project, and the National Organization for the Reform of Marijuana Laws.

        Further, Erwin Chemerinsky, who gets a lot of crap here for his law school but who nobody denies is a liberal constitutional scholar, editorialized in favor of affirmance.

        Good to hear that all these groups and people, and their lawyers (members of the Supreme Court bar) are neoconfederates or dupes who don’t understand American constitutional law nearly as well as some Canadian blogger who never even went to law school.

        • dilan

          Also, the Ninth Circuit opinion (a circuit, of course, known for its neoconfederate opinions) finding in favor of Raich, was authored by known neoconfederate Harry Pregerson, joined by known neoconfederate Richard Paez.

        • Hogan

          The amici in Raich included

          no one cares who, because Scott was very clearly taking about Wickard and not Raich at that point. Can we at least keep it honest?

          • dilan

            He’s defending Raich too (read downthread), as he has to, because it directly follows from Wickard.

            And remember, the whole way this started is because he was saying there was no slippery slope from Wickard, and I pointed out that Raich WAS the slippery slope. He said it wasn’t, basically because Raich directly followed from Wickard.

            So yes, this is about Raich.

            • ap77

              As others have pointed out, your problem is with the drug war, not the interpretation of the commerce clause.

            • Scott Lemieux

              as he has to, because it directly follows from Wickard.

              Well, no — if it did, the 9CA could not have ruled the way it did. I do think Raich was correct, but you can obviously distinguish Wickard and Raich.

        • Scott Lemieux

          Once again, you are defending a limited opinion the Court didn’t actually write

          This entire paragraph confuses an argument about the practical effects of the holding with the holding itself, so I’ll ignore it.

          Because they have more zealots.

          As noted below, this is silly. And there’s the additional problem that the vast majority even of federal drug prosecutions would be unaffected by overruling Raich and Wickard.

          There’s nothing “ARBITRARY” about it. THE FUCKING CONSTITUTION SAYS “COMMERCE AMONG THE SEVERAL STATES”.

          Thanks! This doesn’t change the fact that attempts to define some regulations of interstate markets as actually regulations of local markets will inevitably be arbitrary and incoherent, and attempts to second-guess reasonable congressional determinations of what is necessary and proper to carrying out the commerce power will inevitably be arbitrary. History couldn’t be much clearer on this point.

          overturning Wickard will not strip the federal government of all its powers to regulate things.

          Indeed! But it would result the powers of the federal government being restricted according to the whims of federal judges who generally tend to be conservative on economic issues. In particular, if Wickard was overruled then the ACA is unconstitutional, which isn’t a problem for you but is a problem for people with liberal views on health care as well as for people who think that the federal government should actually retain its constitutional authority to regulate interstate markets.

          McClung and Heart of Atlanta Motel are distinguishable in that they DID involve actual commercial activity

          But you’ve argued that if Raich is overruled then the federal government can’t regulate abortion clinics. That clearly creates serious problems for McClung. (You could read a hypothetical Raich affirmance more narrowly, but you don’t. And, more to the point, many federal judges wouldn’t either.)

          Erwin Chemerinsky, who gets a lot of crap here for his law school but who nobody denies is a liberal constitutional scholar, editorialized in favor of affirmance.

          I can’t find any evidence of that (not saying it didn’t happen, just that it’s not online.) I would recommend that people read his comments here, though. At a minimum, he would seem to favor Wickard and a very narrow reading of Raich.

          Good to hear that all these groups and people, and their lawyers (members of the Supreme Court bar) are neoconfederates or dupes who don’t understand American constitutional law nearly as well as some Canadian blogger who never even went to law school.

          Since I have every remotely liberal Supreme Court justice to have considered the question and the overwhelming majority of liberal legal scholars on my side, you can fuck right off with your appeals to authority.

        • rea

          Saying that those words have their natural meaning (which excludes what someone grows in their own garden for their own use) is not arbitrary. It’s classic textual interpretation

          It’s stupid textual interpretation. Imagine Big Motors has a plant in California. Two cars come off the line, one after the other. One is destined to be sold in Maine, and is therefore subject to federal regulations. The other is destined to be sold in California, and you think it hugely unjust to subject that vehicle to federal regulation.

          • dilan

            No, because that factory clearly sells goods all over the country and the entire enterprise is intimately tied to commerce among the several states.

            What’s stupid is to say that because we can obviously aggregate the activities of General Motors, a profit-making enterprise which clearly benefits from and acts in interstate commerce, that means that growing a plant on your own windowsill that you will then ingest for your own recreational or medical purposes also constitutes “commerce among the several states”.

            • Scott Lemieux

              a profit-making enterprise which clearly benefits from and acts in interstate commerce

              So you concede that the judgment in Wickard was correct?

              • dilan

                Not at all. Filburn isn’t General Motors either.

                I mean, really, your argument seems to boil down to “because Hammer v. Dagenhart was wrong, the only possible line to draw was unlimited federal power, except for some reason Lopez was rightly decided, though I won’t say why”.

                There’s no principle here at all. You are just making shit up.

                • rea

                  Making shit up? You propose no workable or coherent rule. You don’t seem to grasp that the problem with bad federal laws isn’t that they are federal, it’s that they are bad.

                • The Temporary Name

                  it’s that they are bad.

                  Well said.

                • Scott Lemieux

                  Filburn isn’t General Motors either.

                  But he was unquestionably running a “profit-making enterprise which clearly benefit[ed] from and act[ed] in interstate commerce.” If Filburn wasn’t selling any of his wheat the quota would not have applied to him. So, according to your own theory, the judgment was correct.

                  except for some reason Lopez was rightly decided

                  The fact that it regulates a noncommerical activity without a proper connection to a broader regulatory scheme (or a factual showing that the states were incompetent to address the problem), of course.

                  There’s no principle here at all. You are just making shit up.

                  Hahahahahahahaha oh that’s priceless.

            • rea

              a profit-making enterprise which clearly benefits from and acts in interstate commerce

              So, if Big Motors loses money, no interstate commerce?

        • Mark Field

          The federal government has a lot more power than the states do, and that means a much greater capacity for zealotry and tyranny.

          So much for Federalist 10: “The smaller the society, the fewer probably will be the distinct parties and interests composing it; the fewer the distinct parties and interests, the more frequently will a majority be found of the same party; and the smaller the number of individuals composing a majority, and the smaller the compass within which they are placed, the more easily will they concert and execute their plans of oppression. Extend the sphere, and you take in a greater variety of parties and interests; you make it less probable that a majority of the whole will have a common motive to invade the rights of other citizens; or if such a common motive exists, it will be more difficult for all who feel it to discover their own strength, and to act in unison with each other. Besides other impediments, it may be remarked that, where there is a consciousness of unjust or dishonorable purposes, communication is always checked by distrust in proportion to the number whose concurrence is necessary.

          Hence, it clearly appears, that the same advantage which a republic has over a democracy, in controlling the effects of faction, is enjoyed by a large over a small republic,–is enjoyed by the Union over the States composing it.”

          • Scott Lemieux

            An argument that has proven prescient indeed.

  • Joe_JP

    Thanks to Wickard, YES, the federal government CAN arrest you for what you grow in your own garden for your own use. They CAN search your house. They can send the battering rams and the swat teams in and shoot your pets and scare your children.

    Yes, in the promotion of regulating a multibillion dollar interstate and international industry, the feds can have a comprehensive scheme to stop its production, especially since in the real world it will result in significant leakage.

    The fact something is “for your own use” doesn’t mean it does not significantly effect interstate commerce. That is what the words in the Constitution says Congress can regulate, including by laws “necessary and proper” for its advancement.

    Also, they need not use “battering rams” etc. to do so. This can and does violate the Bill of Rights in various cases. Wickard notwithstanding. They can “search” your house in various cases. Use of caps make you look like a tool. Just saying.

    • dilan

      If your belief is that someone growing a plant for her own personal use on her own property is “commerce among the several states”, make that argument (you just did).

      I think that’s a bad argument, but that’s not what I am ripping Scott to shreds over. I’m trashing him for pretending that the slippery slope concerns are a fantasy when (1) they already happened and (2) the “facts” that supposedly limited Wickard were not of any importance to the Supreme Court and formed no part of its holding. (Another way of putting it is if Wickard is good law, Raich was rightly decided.)

      In other words, he’s gone beyond simply defending an extremely broad interpretation of the commerce clause. He’s out there on a ledge, making an argument that Wickard was all about how Roscoe Filburn was a cheat who used subsistence farming to manipulate the AAA’s regulatory scheme, and that this somehow means the case’s holding is limited and there will be no slippery slope. That’s just flat wrong, and it is flat wrong as a FACTUAL matter rather than on the matter of opinion that is the subject of my disagreement with you.

      • Joe_JP

        If your belief is that someone growing a plant for her own personal use on her own property is “commerce among the several states”, make that argument (you just did).

        Congress has the power to regulate “commerce among the several states” and pass laws “necessary and proper” for that. So, the mere growing need not be commerce. Likewise, a federal bank might be necessary to fund the army w/o itself being the army.

        The regulation of a multi-billion dollar industry (Raich) is not a good example of a “slippery slope.” She also should have a personal liberty claim, so there is a possible limit anyhow.

        And, the citation of “battering rams” and “scaring children” is simply put inane. The level of vitriol, caps etc. just makes the argument look desperate. Scott from time to time does that but you look worse in this case.

        ETA: The facts in Wickard are notable since Mr. Wickard is cited as a case of the victim of the CC gone crazy but it turns out he really wasn’t.

        • Scott Lemieux

          And, the citation of “battering rams” and “scaring children” is simply put inane. The level of vitriol, caps etc. just makes the argument look desperate. Scott from time to time does that but you look worse in this case.

          This is particularly true since Raich is a highly atypical federal prosecution, and overruling Raich and Wickard would have a trivial effect on the drug war. Most federal prosecutions involve large scale distribution/possession cases that would clearly be interstate commerce even if Wickard was overruled. By Dilan’s logic, unless you favor overruling McCulloch and Laughlin Steel you therefore favor JACKBOOTED FEDERAL THUGS using BATTERING RAMS AND GUNS AND TASERS AND BATONS to SCARE YOUR CHILDREN and SHOOT YOUR PETS. It’s an asinine argument.

          • dilan

            Scott, overruling Raich and Wickard would actually have a huge effect on the drug war. There are actually plenty of jurisdictions (such as in my beloved California and Erik’s beloved Oregon) where personal marijuana consumption would have been basically tolerated had it not been for the federal government’s war on drugs.

            The federal government has a lot more power than the states. It has more money. It also has more zealots.

            This can be a very good thing (such as when we are talking about fighting discrimination in the South). It can also be a very evil thing. The states could have NEVER done the war on drugs with the zeal and the force that the federal government did. Nor would some localities have wanted to.

            There’s an analogy right now with the Tsarnaev trial. Massachusetts chose not to have the death penalty. Bombing the Boston Marathon has nothing to do with commerce among the several states. But thanks to expansive court rulings, the zealots in the DOJ, responding to right wing idiot politicians from the South (of both parties, by the way– Bill Clinton loved state-sanctioned murder) can take over the traditional state function of prosecuting murder so they can murder this young man.

            Now, you can say they have the power to do that. But what you can’t say is that there’s no difference between the states having that power and the federal government having it.

            • Scott Lemieux

              Scott, overruling Raich and Wickard would actually have a huge effect on the drug war.

              It just wouldn’t. You continue to ignore the fact that cases involving distribution, large scale possession, money laundering, and/or firearms would be regulations of interstate commerce even if Raich and Wickard were overruled. Since this is always the vast majority of federal drug prosecutions — and as far as I can tell as of now represents all federal drug prosecutions — the effect of overruling Raich would be trivial. And then, of course, the neoconfederate doctrines you’ve created for this negligible gain will wreak havoc on the contemporary regulatory state.

              The federal government…also has more zealots.

              Assumes facts that are exceedingly not in evidence. It seems worth noting at this juncture that your beloved state of California gave someone a life sentence for stealing 3 golf clubs and has a prison system that is a massive systematic human rights violation.

              the zealots in the DOJ, responding to right wing idiot politicians from the South (of both parties, by the way– Bill Clinton loved state-sanctioned murder) can take over the traditional state function of prosecuting murder so they can murder this young man.

              The federal government has executed exactly three people since Gregg, and since those were in Texas and Oklahoma the net number of people executed because of this federal power is zero. If that’s the price we have to pay for having a federal government that can actually regulate the economy, worker safety, the environment, civil rights, etc. etc. I can live with it.

              • dilan

                You are ignoring that the federal drug war includes things like crop eradication that certainly do go after people growing marijuana, for any purpose. You are further ignoring that it is entirely possible that forcing a tighter interstate commerce nexus would have at least given some of those people involved in drug trade a legitimate defense. Finally, you are ignoring the fact that plenty of federal law enforcement activity starts with a tip that there are drugs on the premises– having such activity not, in fact, be illegal would mean the federal government couldn’t get the search warrant in the first place.

                If that’s the price we have to pay for having a federal government that can actually regulate the economy, worker safety, the environment, civil rights, etc. etc. I can live with it.

                Answered above. The federal government has plenty of tools to regulate health and safety, the environment, and discrimination without having the power to tell Filburn what he can feed his hogs or Raich what medicine she can take.

                • ap77

                  Seems to me like your energy would be better spent trying to get marijuana fully legalized instead of advocating for different interpretations of the commerce clause that just might have some ancillary effect on the drug war but basically almost certainly would not since the drug trade is indisputably interstate/international.

                • dilan

                  Seems to me like your energy would be better spent trying to get marijuana fully legalized

                  Bear in mind Raich is a huge roadblock to that, in the same way that Amendment 2 in Colorado (struck down in Romer v. Evans) was a huge roadblock to gay rights in Colorado.

                  Stripping localities of any control makes reform far harder (which was the exact argument the Court accepted in Romer).

                • Denverite

                  Yes, the idea that a state would ever legalize marijuana is UNPOSSIBLE.

                  I’ll be sure to stop in at every pot shop I pass on my way home and tell them that. I might get to my house by Saturday.

                • Scott Lemieux

                  I will probably just do a post on it at this point, but I’ll note that your two arguments contradict each other. You could have affirmed in Raich with a very narrow opinion that applied only to cases in which marijuana is neither purchased nor distributed, which wouldn’t threaten most regulation but would have a negligible effect on the drug war. You could write a broader opinion that could apply to cases of larger-scale possession or distribution, but such an opinion would unquestionably pose a major threat to much of the regulatory state. What you can’t do is switch between narrow and broad holdings depending on what suits your purposes.

                • Scott Lemieux

                  I’ll be sure to stop in at every pot shop I pass on my way home and tell them that. I might get to my house by Saturday.

                  If only the Supreme Court had overruled the Affordable Care Act, Colorado could have legalized marijuana. Now, we’ll never know.

                • dilan

                  Denver, as long as Raich is good law, any Presidential administration which wishes to score political points with right wing assholes in the South who should have no right to tell Coloradans how to live, can crack down and destroy the entire legal marijuana industry in Colorado.

                • ap77

                  I’m having a really hard time seeing how Raich is a huge roadblock (or any whatsoever) to legalization….

                • Denverite

                  Denver, as long as Raich is good law, any Presidential administration which wishes to score political points with right wing assholes in the South who should have no right to tell Coloradans how to live, can crack down and destroy the entire legal marijuana industry in Colorado.

                  Yes, yes. It’s actually a really interesting question as to what a future GOP administration would do here. My guess is that Colorado is enough of a swing state that they use kid gloves, but who knows.

                • Scott Lemieux

                  who should have no right to tell Coloradans how to live

                  But don’t call Dilan a neoconfederate!

                • dilan

                  Scott:

                  So it’s “neoconfederate” to be concerned that the composition of the Senate and the electoral college give the assholes who live in the South too much power?

                  Good to know.

                • ap77

                  Yes, yes. It’s actually a really interesting question as to what a future GOP administration would do here. My guess is that Colorado is enough of a swing state that they use kid gloves, but who knows.

                  Meh, I doubt they would do much of anything – and I’m the sort of guy who assumes the absolute worst of Republicans in all contexts. Just think the tide has shifted on marijuana and trying some sort of “crackdown” could backfire.

                • Scott Lemieux

                  So it’s “neoconfederate” to be concerned that the composition of the Senate and the electoral college give the assholes who live in the South too much power?

                  No, but it certainly is neoconfederate to say that, as a general principle, the federal government has no right to tell people in South Carolina “how to live” in any way.

                • Scott Lemieux

                  as long as Raich is good law, any Presidential administration which wishes to score political points with right wing assholes in the South who should have no right to tell Coloradans how to live, can crack down and destroy the entire legal marijuana industry in Colorado.

                  And if Raich was overruled right-wing assholes could still crack down on everything about the legal marijuana industry except people growing small amounts of marijuana for personal use, unless the opinion didn’t just overrule Wickard but McClung and Laughlin Steel too.

                • dilan

                  No, but it certainly is neoconfederate to say that, as a general principle, the federal government has no right to tell people in South Carolina “how to live” in any way.

                  One reason to support some level of federalism, Scott, is because in truth our federal government is tremendously biased towards the idiots who live in the South.

                  Just because there were instances where we needed federal power (slavery, segregation, etc.) doesn’t mean that this isn’t true in the main.

          • ap77

            Don’t think Raich was even a prosecution.

      • Scott Lemieux

        He’s out there on a ledge, making an argument that Wickard was all about how Roscoe Filburn was a cheat who used subsistence farming to manipulate the AAA’s regulatory scheme, and that this somehow means the case’s holding is limited and there will be no slippery slope

        I am not saying that. Obviously, Wickard is appropriately “broad” in the sense that it defers to congressional determinations of what is necessary to regulate interstate markets. My point is simply that the facts of this case are not a coincidence; the idea that the federal government is going to start routinely banning the personal growing of commodities that are not already widely banned is silly. And the sanitized picture of Wickard presented by its libertarian critics is no accident; it contributes to a fundamental misunderstanding of its logic.

      • Johnny Sack

        I am ripping Scott to shreds

        Oh my. You wish, sweetheart. You wish.

        • Self-evaluation is a hell of a drug.

        • Dilan thinks that when someone says to him “Why are you punching yourself” that means that he is winning a fight since, after all, he keeps landing punches and he really knows that they hurt!

          • The Temporary Name

            So, when’s the LGM poker tournament?

  • Joe_JP

    After watching Veep — go Amy — I’m starting to worry about Big Zucchini myself.

  • nostack

    As the guy who MDS was snarkin’ on, I still stand by my wrongheaded view that, while Wickard v. Filburn arrives at the correct outcome based on the specific facts of that case, the holding and logic of the case is about as close to the court putting up a “CAUTION: SLIPPERY SLOPE!” sign as you’re ever likely to get. Jackson explicitly says it doesn’t matter that any of this is being used commercially.

    If it weren’t for that holding, there would be nothing about Wickard that’s even remotely noteworthy: it would be a trivial result in a trivial case. A whole bunch of legal scholars – or at least, ConLaw profs and casebook editors – seem to think that Wickard stands for more than that.

    It’s totally possible most of the legal academy is wrong – Jackson didn’t really need to go this far to resolve the case IMO – but I don’t think these people are arriving at that conclusion via bad-faith reasoning like, say, climate-change-denying scientists. Saying it’s “obvious” that the plain text of the opinion doesn’t mean anything seems very non-obvious to me.

    • Scott Lemieux

      Jackson explicitly says it doesn’t matter that any of this is being used commercially.

      It doesn’t matter because the regulation was part of a broader framework regulating an interstate commodity market, so even if we assume arguendo that Wickard would not have sold his surplus the quota was a valid exercise of the commerce power. Nothing in Jackson’s opinion suggests that if Congress passed an isolated law preventing anyone in Montgomery County Ohio from growing any quantity of wheat for personal use, with no connection to a broader regulatory program, that this would be constitutional.

      Can you name an application of Wickard that does not involve a broad program regulating a significant interstate market? If not, there’s been no slippery slope.

      • nostack

        “Can you name an application of Wickard that does not involve a broad program regulating a significant interstate market? If not, there’s been no slippery slope.”

        Under Wickard, I have an extremely difficult time imagining ANY economic act or omission involving goods, that would have zero impact on interstate commerce. In part because Wickard isn’t considering just the actual impact, but the hypothetical impact if we lived in a parallel universe where many people acted, or failed to act, similarly.

        But let’s imagine Wickard under the usual libertarian elision of the facts: Mr. Imaginary Filburn is growing wheat, on, say, an acre of land, and he’s using it himself so he doesn’t have to buy wheat on the interstate market. If those were facts, it would have an immeasurably small effect on the wheat market.

        Does the Constitution grant Congress the power to tell Imaginary Filburn to knock it off?

        Sure, Actual Filburn is a ridiculous hypocrite. But I think there’s a big leap from, “Oh, Congress has the power to regulate interstate markets, so obviously Congress can regulate participation in those markets,” to, “And thus the Constitution grants Congress the power to regulate non-participants by extrapolating the effects of their conduct.” That’s a policy choice, I think, and frankly I wish we hadn’t gotten there so explicitly. I don’t think they needed to go that far.

        I definitely agree with you that, under Wickard as it stands, pretty much the only way to handle this is through the people keeping strict watch on Congress. I happen to think that’s a disquieting solution: better civic involvement solves a whole bunch of problems in theory, but in practice it’s a massive collective action problem.

        • Under Wickard, I have an extremely difficult time imagining ANY economic act or omission involving goods, that would have zero impact on interstate commerce. In part because Wickard isn’t considering just the actual impact, but the hypothetical impact if we lived in a parallel universe where many people acted, or failed to act, similarly.

          I think Wickard itself is narrower: It has to be a substantial effect and, I think, the liklihood has to be fairly strong. If you look at the discussion of the wheat market, the effect of the variability of supply on “home consumption” was help to be large in practice:

          The effect of consumption of home-grown wheat on interstate commerce is due to the fact that it constitutes the most variable factor in the disappearance of the wheat crop. Consumption on the farm where grown appears to vary in an amount greater than 20 percent of average production. The total amount of wheat consumed as food varies but relatively little, and use as seed is relatively constant.

          And:

          This record leaves us in no doubt that Congress [p129] may properly have considered that wheat consumed on the farm where grown, if wholly outside the scheme of regulation, would have a substantial effect in defeating and obstructing its purpose to stimulate trade therein at increased prices.

          So I think mere hypotheticals aren’t sufficient. Yes, Filburn alone has a trivial effect, but there is a propensity for free rider problems in this case which justifies the regulation.

          Now, things can still be pretty invasive without appeal to big hypotheticals. I bet if we looked at consumption of tomatoes that home gardening might have a measurable effect thus Congress could ban home gardening of tomatoes. No hypotheticals needed. You could probably model it pretty easily and even account for the fact that some people might consume fewer tomatoes if they weren’t growing them.

          • dilan

            I think Wickard itself is narrower: It has to be a substantial effect and, I think, the liklihood has to be fairly strong. If you look at the discussion of the wheat market, the effect of the variability of supply on “home consumption” was help to be large in practice:

            Again, given the holding of Raich, this seems so obviously false that I can only label it a lie.

            In practice, the only limit that really matters is the one Scott has sometimes mentioned– it does have to be part of a national regulatory scheme. But if that is satisfied, yes, ANY home consumption of ANYTHING can be prohibited by the federal government. That’s the proposition you have to defend.

            • Again, given the holding of Raich,

              Of which I know absolutely nothing. I’ve not read it. I’m not a lawyer. I’m reading Wickard. I read it for the first time yesterday. I quote the parts I refer to.

              this seems so obviously false that I can only label it a lie.

              Actually, what you could have done is behave like a sensible and charitable interlocutor rather than going way off the rails. Even if I were familiar with Raich, I could think that it followed Wickard incorrectly. It’s not difficult to be charitable and sensible, Dilian, but it does take a moderate effort.

              I cite the text I believe supports my position. You fail to address this.

              I have no idea why you (and other people like Murc) go so nuts over this, but as I said before, going nuts isn’t helping your argumentation a bit.

              • dilan

                Bijan, you should really read Raich before defending Wickard anymore. It’s really important for understanding just how far this extends.

                And since you haven’t (I would assume anyone defending Wickard would have), I retract my statement that you lied.

                • Bijan, you should really read Raich before defending Wickard anymore.

                  Whatever you say, dude.

                  It’s really important for understanding just how far this extends.

                  It’s almost like you didn’t read all of my comment.

                  And since you haven’t (I would assume anyone defending Wickard would have), I retract my statement that you lied.

                  Dude, your ridiculous assertion was not a problem. But, if you’re trying to become a reasonable interlocutor, you might try apologizing for a rather nasty assertion which was not remotely justified even if the facts were as you assumed.

                  For someone who was all bent out of shape because Scott didn’t allow for other interpretations of the commerce clause to be nonstupid, you didn’t cover yourself with competence here.

                • dilan

                  Bijan:

                  Anyone who has read Raich and still argues that Wickard is a carefully limited opinion about a farmer who was cheating the system and whose parasitic actions had a substantial effect on interstate commerce is either lying or doesn’t know how to read. I mean, it’s that bad an argument.

                  And I generally assume that people who would defend a decision like Wickard would at least make an attempt to find out how far its doctrine really extends. That’s tremendously important information.

                  (By the way, on Scott’s side of the argument, I would hope you would have read Heart of Atlanta Motel and Katzenbach v. McClung as well. Those cases arguably support Scott’s and your position, but you should definitely read them. Wickard is one part of a much broader story.)

                • Anyone who has read Raich and still argues that Wickard is a carefully limited opinion about a farmer who was cheating the system and whose parasitic actions had a substantial effect on interstate commerce is either lying or doesn’t know how to read.

                  Well putting aside your tendentious phrasing (which is odd, since my version is *right there*), here I stand. I’m not lying and I do know how to read and I have just read Raich. So your inference was even stupider than I had imagined.

                  I mean, it’s that bad an argument.

                  It’s a claim, not an argument. The argument I made was based on the text of Wickard. My discussion of Raich is below and identifies the “rational basis” bit as the bit that makes Raisch a relatively easy case to decide. Since this puts me in with the Supreme Court, I’m ok in thinking that this isn’t nuts. The “rational basis” standard isn’t in Wickard and I think arguments for a stronger standard are compatible with Wickard. So, I conclude you are worse on this than on statistics.

                  And I generally assume that people who would defend a decision like Wickard would at least make an attempt to find out how far its doctrine really extends. That’s tremendously important information.

                  But you see, you are a silly person and something of an intellectual bully. Not a very successful bully, but what you lack in success you make up for with persistence, shamelessness, and pomposity.

                  It’s a comments thread with a mixed audience. You know my background. Why on earth would you presume that in a general audience context, everyone would have fully read up on the full doctrine that a particular case touches on to the point that you would accuse them of lying if they didn’t agree with you? Putting aside that your sufficient conditions for being lying or illiterate force you to say that O’Conner and Thomas are lying in their dissents. (At least, as far as I can tell.)

                  What did Joe say to banish you last time? I hereby repeat it.

          • nostack

            Bijan, thank you for your comments; I enjoy thrashing this out with you even if it’s taking me away from work. I wouldn’t have known you weren’t a lawyer if you hadn’t said anything.

            “I think Wickard itself is narrower: It has to be a substantial effect and, I think, the liklihood has to be fairly strong.”

            While that’s not my reading of Wickard, it’s a very sensible limitation of the principle, and one I wouldn’t have much problem with.

            • Thanks! I enjoy our discussion as well.

              If you get a chance, I would be interested in why you think Wickard doesn’t have the limits I articulated. It seems to be really explicit in the quotes I provide.

        • Scott Lemieux

          Does the Constitution grant Congress the power to tell Imaginary Filburn to knock it off?

          If it is rationally connected to a federal regulatory scheme, yes.

          • nostack

            Thanks! The thing is, how far out of your way does one go to declare that something is “rationally connected”? If it’s rationally connected in Wickard but not rationally connected in United States v. Lopez

            (https://supreme.justia.com/cases/federal/us/514/549/ for Lopez, if anyone wants to read it)

            then there’s a line-drawing exercise which we can defer not not avoid forever. Where’s that line? And when you find it, is it “obvious” that it’s rationally connected? I mean, so obvious that most everyone will agree with you?

            I think it’s a matter of degree, and while the extremes are obvious, I personally feel that the Imaginary Filburn–created by the Court itself in Wickard!–isn’t at one of those extremes. It’s not that I think your reading is wrong, I just don’t agree that it’s “obvious.”

            But eh, other than saying nice things about Bijan in a minute, I think I’ve said all I can say.

            • Mark Field

              Look at it this way. There’s nothing in the Constitution which prohibits individual states from regulating wheat grown for personal consumption. However, that doesn’t happen. The reason it doesn’t happen is that the states all function, more or less, as democracies. The federal government is a democracy too. That’s your real protection.

              The potential for abuse of power isn’t limited to Congress and it isn’t limited to the Commerce Clause either. Congress has plenary power to declare war. It could declare war on Canada tomorrow. The protection against that is not some restrictive reading of the power to declare war, it’s that the American public doesn’t support that.

              The other protection against abuse of nationally popular laws is the Bill of Rights. There are all kinds of restrictions on Congressional exercise of power based on due process, etc.

            • Scott Lemieux

              But in Lopez, there really wasn’t a connection to a broader regulatory scheme. There can be tougher cases — Raich was one — but distinguishing Wickard and Lopez is really not a challenge. (Scalia’s Raich concurrence is very good on this point.)

      • It’s really worth emphasizing this point over and over again as well as the point that before talking about Wickard that you should reread it. The history of commerce clause decisions is instructive as well as the reason why shouting about local or personal use just isn’t helpful.

        For nearly a century, however, decisions of this Court under the Commerce Clause dealt rarely with questions of what Congress might do in the exercise of its granted power under the Clause, and almost entirely with the permissibility of state activity which it was claimed discriminated against or burdened interstate commerce. During this period, there was perhaps little occasion for the affirmative exercise of the commerce power, and the influence of the Clause on American life and law was a negative one, resulting almost wholly from its operation as a restraint upon the powers of the states. In discussion and decision, the point of reference, instead of being what was “necessary and proper” to the exercise by Congress of its granted power, was often some concept of sovereignty thought to be implicit in the status of statehood. Certain activities such as “production,” “manufacturing,” and “mining” were occasionally said to be within the province of state governments and beyond the power of Congress under the Commerce Clause.

        …. It was soon demonstrated that the effects of many kinds of intrastate activity upon interstate commerce were such as to make them a proper subject of federal regulation. [n22] In some cases sustaining the exercise of federal power over intrastate matters, the term “direct” [p123] was used for the purpose of stating, rather than of reaching, a result; [n23] in others, it was treated as synonymous with “substantial” or “material”; [n24] and in others it was not used at all. [n25] Of late, its use has been abandoned in cases dealing with questions of federal power under the Commerce Clause.

        This is key! The *structure* of the activity is secondary to its *effect*. If the effect subverts an otherwise legit regulation of interstate commerce, then its form doesn’t matter. This doesn’t mean that there are no activities beyond Congress’s reach! But it does mean that technical loopholes are blocked.

        The Court’s recognition of the relevance of the economic effects in the application of the Commerce Clause, exemplified [p124] by this statement, has made the mechanical application of legal formulas no longer feasible. Once an economic measure of the reach of the power granted to Congress in the Commerce Clause is accepted, questions of federal power cannot be decided simply by finding the activity in question to be “production,” nor can consideration of its economic effects be foreclosed by calling them “indirect.”

        So, formalist WORDS WITH MEANING aren’t going to do the job.

        Whether the subject of the regulation in question was “production,” “consumption,” or “marketing” is, therefore, not material for purposes of deciding the question of federal power before us. That an activity is of local character may help in a doubtful case to determine whether Congress intended to reach it. [n26] The same consideration might help in determining whether, in the absence of Congressional action, it would be permissible for the state [p125] to exert its power on the subject matter, even though, in so doing, it to some degree affected interstate commerce. But even if appellee’s activity be local, and though it may not be regarded as commerce, it may still, whatever its nature, be reached by Congress if it exerts a substantial economic effect on interstate commerce, and this irrespective of whether such effect is what might at some earlier time have been defined as “direct” or “indirect.”

        Game and match.

        Now, here’s the thing that may be what’s actually behind the expansion of federal power: The country and the world are way more interconnected than ever before. The more interconnected the more things that can have substantial effects on interstate commerce, thus the more things fall under Congresses commerce power. But this isn’t a change in the reading of the power, but a change in the state of the world.

        • dilan

          Certain activities such as “production,” “manufacturing,” and “mining” were occasionally said to be within the province of state governments and beyond the power of Congress under the Commerce Clause.

          Here’s the deal. Way back when, before all the shouting, I actually said in one of my first posts here that there’s a history behind Wickard. I don’t deny that.

          The history is more complicated than Scott thinks it is. In particular, the argument that “manufacturing isn’t commerce” was probably quite plausible in 1787, when most manufacturing was local and there wasn’t such a thing as mass production and the interstate supply chain. The problem is, it wasn’t plausible anymore when applied to late 19th Century industrial revolution factories. Which makes Hammer v. Dagenhart and E.C. Knight stupid decisions.

          But it’s worth remembering what makes them stupid. It’s not stupid to think that someone baking their own cupcakes in a local store has nothing to do with commerce among the several states. What’s stupid is to think that same reasoning applies to the General Motors factory in Detroit, Michigan.

          Now, having said that, it’s perfectly debatable how far courts can go in expanding the federal commerce power based on that insight. That’s what I mean when I say Wickard has a history behind it.

          But at the same time, we must never forget that it’s a Constitution we are expounding. In other words, the text matters too. And the farther away we get from “commerce among the several states”, the more we should be asking ourselves questions about whether we are still staying faithful to the text.

          The central problem I have with Scott isn’t that he likes Wickard– it’s that he thinks that Wickard is OBVIOUS and that anyone who might think that Wickard and (especially) Raich is wrongly decided is advocating some neoconfederate agenda. No, there’s a lot of people who don’t like Wickard and Raich, and that includes a lot of people who are neither neoconfederates nor dupes, but who just think it’s a damn implausible interpretation of “commerce among the several states”.

          • But it’s worth remembering what makes them stupid. It’s not stupid to think that someone baking their own cupcakes in a local store has nothing to do with commerce among the several states. What’s stupid is to think that same reasoning applies to the General Motors factory in Detroit, Michigan.

            We concur that the latter is stupid. We don’t concur that the first isn’t. Indeed, that’s a really bad example.

            I can bake cupcakes in a local store which are purchased by people from across a state line and transported back there. It happens all the time! When I visit New York, I bring back pastries. Millions of commuters transport food across the NY/NJ border every day. All sorts of “local” mom and pop stores ship stuff nationally and internationally. Shipping isn’t hard in this day and age!

            They can advertise and it’s really hard for advertising not to reach across state boundaries. Near state borders, interstate commerce is the norm!

            But words have meaning! I feel so refuted!

            • dilan

              I think we have different definitions of “stupid”.

              Under Katzenbach v. McClung, I agree that the person selling the cupcakes is reachable under the commerce clause.

              But I don’t at all believe that the argument that she is not is stupid. Not one bit.

              The Commerce Clause forces us to draw a line between the local and non-commercial, and the interstate and commercial. Even Scott concedes this– he said Lopez is rightly decided and Morrison may be on the commerce clause issue as well.

              There are plenty of plausible places to draw that line. One implausible place, in the modern world, is where Hammer v. Dagenhart drew it (a factory manufacturing stuff to be sold for profit in interstate commerce is not covered).

              But it’s entirely plausible to say that some of the things that have been held to be covered are, in fact, not covered, because they are insufficiently connected to commerce among the several states. Wickard is not, in any sense, the only plausible interpretation here. (Indeed, I don’t think it’s even the best one.)

              • I think we have different definitions of “stupid”.

                But words have meaning!

                Under Katzenbach v. McClung, I agree that the person selling the cupcakes is reachable under the commerce clause.

                But I don’t at all believe that the argument that she is not is stupid. Not one bit.

                Wait, there’s an argument that a person selling cupcakes across state borders isn’t engaged in interstate commerce? Ooookay!

                But it’s entirely plausible to say that some of the things that have been held to be covered are, in fact, not covered, because they are insufficiently connected to commerce among the several states.

                If you think that’s the point of disagreement, then…I have no idea why you’ve written much of what you wrote. All the GROWING A PLANT stuff is just meaningless.

                I’ll repeat a key bit of Wickard:

                The Court’s recognition of the relevance of the economic effects in the application of the Commerce Clause, exemplified [p124] by this statement, has made the mechanical application of legal formulas no longer feasible. Once an economic measure of the reach of the power granted to Congress in the Commerce Clause is accepted, questions of federal power cannot be decided simply by finding the activity in question to be “production,” nor can consideration of its economic effects be foreclosed by calling them “indirect.”

                You have to consider the actual connection and effect, but this can’t be determined by saying IN YOUR BACKYARD or LOCAL STORE or even FOR ONE’S OWN CONSUMPTION <—OWN CONSUMPTION ISN'T INTERSTATE BY DEFINITION. None of this is by definition, it's by empirical relations to interstate commerce. So wanking on about the meaning of "commerce" or "interstate" are beside the point: An activity that substantially affects interstate commerce is going to be reachable or you can subvert that regulation in all sorts of ways. And given our interconnected country, almost nothing is not connected. Not all of it may be substantially connected, but that's a different story.

                I'm not super thrilled by this outcome in a lot of ways, but I don't know that I care whether it's the states or the feds that can regulate my person cupcake production.

                • dilan

                  Wait, there’s an argument that a person selling cupcakes across state borders isn’t engaged in interstate commerce?

                  My hypothetical was not about selling them across state borders. Of course that’s interstate commerce.

                  My old Con Law professor’s favorite example was a little girl’s lemonade stand. If she uses lemons grown on her parents’ property, municipal water from a local well, and sugar purchased from the local organic farmer’s market, is it covered by Wickard?

                  If you think that’s the point of disagreement, then…I have no idea why you’ve written much of what you wrote. All the GROWING A PLANT stuff is just meaningless.

                  Growing a plant is meaningful because Scott jumps from manufacturing to Raich as if there’s no difference. There’s a huge difference– manufacturing is basically almost always commercial; growing stuff often isn’t.

                  I’m not super thrilled by this outcome in a lot of ways

                  Well, it’s not the only possible outcome.

                  For one thing, your statement of the rule would seem to make Lopez and Morrison wrongly decided. Do you agree with that?

                  For another, though, it seems to me that you can reason in the opposite way– that some activities are so clearly local and non-commercial that they just don’t fall within the definition of “commerce among the several states”.

                  The truth is that ANY line is going to be somewhat arbitrary. There’s no legal principle that says “whenever a line is difficult to draw, draw it in a way that maximizes federal power over everything”. There’s a general principle here– the interstate and commercial are within the scope of federal power; the local and non-commercial are not.

                  In my mind, Wickard and Raich don’t implement that principle very well. (Lopez and Morrison do; the commerce clause holding in NFIB v. Sibelius is completely stupid, however.)

                  By the way, I don’t really like the substantial effects test, but I don’t even think that Raich implements THAT principle very well. Whatever effect Raich’s conduct had on interstate commerce, it wasn’t substantial in my mind. It was incidental. And EVERYTHING, as you point out, has an incidential effect on commerce.

                • My hypothetical was not about selling them across state borders. Of course that’s interstate commerce.

                  Your hypothetical didn’t state that the shop wasn’t selling them across state borders, only that it was a “local store”. Well, what does it mean for a store to be local? If people from out of state buy cupcakes from this store, is that economic activity local? What if they consume them back in their home state? I would submit that every store in the country and every bakery anywhere (to a first approximation) has sold their wares across state lines. So, yes, your hypothetical clearly fails.

                  Growing a plant is meaningful because Scott jumps from manufacturing to Raich as if there’s no difference. There’s a huge difference– manufacturing is basically almost always commercial; growing stuff often isn’t.

                  Right, all those people who knit scarfs for Xmas gifts are completely unlike all those people who have home gardens. Funny!

                  For one thing, your statement of the rule would seem to make Lopez and Morrison wrongly decided. Do you agree with that?

                  I don’t know them. I think we discussed Lopez yesterday and I..maybe thought we needed a rational basis aspect? Sorry, I don’t have enough context.

                  The truth is that ANY line is going to be somewhat arbitrary. There’s no legal principle that says “whenever a line is difficult to draw, draw it in a way that maximizes federal power over everything”.

                  But that’s not the problem. The problem is that you just cannot argue that it’s a textualist reading that provides an obvious place to draw the line.

                  There’s a general principle here– the interstate and commercial are within the scope of federal power; the local and non-commercial are not.

                  This is what I think Wickard correctly argues you cannot do. The “local” and the “non-commercial” can, in many circumstances, be significantly emeshed in interstate commerce. This is a basic fact about the modern economy. So you have to look elsewhere for limits.

                • Another ad, ironically about gardening, is making commenting exceedingly tedious.

                • ap77

                  This is what I think Wickard correctly argues you cannot do. The “local” and the “non-commercial” can, in many circumstances, be significantly emeshed in interstate commerce. This is a basic fact about the modern economy. So you have to look elsewhere for limits.

                  Right. It’s just really not possible to draw any coherent limitations on “interstate commerce” as a matter of constitutional law.

                • dilan

                  This is what I think Wickard correctly argues you cannot do. The “local” and the “non-commercial” can, in many circumstances, be significantly emeshed in interstate commerce. This is a basic fact about the modern economy.

                  1. Many circumstances does not mean every circumstance. You really do need to read Raich. It’s crucial to understanding exactly how far Wickard extends.

                  2. Even if they are enmeshed (which I agree is a basic fact about the modern economy) doesn’t prove that the textual interpretation of “commerce among the several states” as imposing limits on federal power over local, non-commercial activities is wrong.

                  Take the Fourth Amendment. We now live in a world where a lot of our private information is not contained in our homes, persons, papers, or effects, but rather in electronic communications, computer servers, and other places not contemplated by the Fourth Amendment.

                  So what the courts have to do is EXTRAPOLATE the principles of the Fourth Amendment. What is it meant to do? What are the best analogies to things that existed in 1791? And that’s what Katz and Kyllo and all those other cases are about.

                  Well, the purpose of the Commerce Clause was (1) to give the federal government power over problems of national scope and (2) not to extend to things that were purely local and non-commercial.

                  Now the world has changed. How are we supposed to interpret it in the changing world? One way, a bad way, is the way Hammer and E.C. Knight interpreted it– to say that it created a category of “manufacturing” and exempted it from regulation. That’s also how the Sherman Anti-Trust Act got interpreted to hold that baseball wasn’t a business.

                  But a better way is to say “what line can we draw given the modern factual circumstances that approximates the line the framers drew in the original text”? In a modern, interconnected economy, what sorts of activities do not constitute “commerce among the several states”?

                  And I would suggest, before we come back to Filburn, that Angel Raich growing marijuana on her windowsill to self-medicate a medical condition constitutes that sort of activity. It’s not commercial; it’s not interstate. There may be some connections to the national economy, but they are incidental and very attenuated.

                  That’s how I think these cases should be decided, because that, to me, is a plausible way to interpret commerce among the several states in a modern economy. In contrast, what Wickard and Raich do, together, is effectively read “among the several states” out of the clause entirely, on the ground that there’s really no such thing as activity that doesn’t affect commerce in some way and doesn’t cross state lines in some way.

                  I just don’t see that as good textual interpretation, because it is reading language out of the Constitution that is contained in there.

                • dilan

                  It’s just really not possible to draw any coherent limitations on “interstate commerce” as a matter of constitutional law.

                  That’s not a textual argument, though. That’s throwing up your hands and saying “I can’t interpret the text!”

                • ap77

                  That’s not a textual argument, though. That’s throwing up your hands and saying “I can’t interpret the text!”

                  Nope. It’s looking at the text and saying “hmm, there are no coherent limits here given how the economy works.”

                • dilan

                  ap:

                  Was Lopez wrongly decided then?

                • ap77

                  Was Lopez wrongly decided then?

                  Yes, as evidenced by the fact that the same damn thing was upheld after Congress added the appropriate magic words.

                • Scott Lemieux

                  Yes, as evidenced by the fact that the same damn thing was upheld after Congress added the appropriate magic words.

                  But that’s why Lopez was OK. In the first GFSZA Congress made no attempt to link a regulation of local, noncommercial activity to a broader regulatory scheme. That’s not consistent with Wickard. When a jurisdictional hook was added, then the act was upheld, no problem.

                  Overruling Wickard, though, would be a complete mess.

                • 1. Many circumstances does not mean every circumstance.

                  What the fuck. What did you think I meant by “many”? You WORDS HAVE MEANING folks are starting to irk me, esp. when you suck at being precise or providing text.

                  The big fallacy I can only surmise is driving some of this silliness is that you think that the commerce clause must, in every possible world, place a limit on congressional reach. This is obviously not true. In a world where there was in fact no private production and every commercial entity was owned by a single nationwide corp, then basically congress could easily and directly regulate it all. So, it is perfectly possible for the economy and technology to reach a state where basically there was nothing left for the states to do in this sphere by right because it’s all functionally interstate. That does mean that there are still circumstances where they would be barred, but that might not be any circumstance available to us in the actual world.

                  Now I doubt that that’s the case. But you *cannot* reason from “THERE ARE NO PRACTICAL LIMITS NOW” to “THUS THE INTERPRETATION IS WRONG”.

                  You really do need to read Raich. It’s crucial to understanding exactly how far Wickard extends.

                  Ok, I did this. I read the opinion, concurrence, and both dissents.

                  They all use the Wickard framework (with Thomas’s evidencing the most dislike).

                  From the dissent:

                  The Court suggests that Wickard, which we have identified as “perhaps the most far reaching example of Commerce Clause authority over intrastate activity,” Lopez, supra, at 560, established federal regulatory power over any home consumption of a commodity for which a national market exists. I disagree. Wickard involved a challenge to the Agricultural Adjustment Act of 1938 (AAA), which directed the Secretary of Agriculture to set national quotas on wheat production, and penalties for excess production. 317 U.S., at 115—116. The AAA itself confirmed that Congress made an explicit choice not to reach–and thus the Court could not possibly have approved of federal control over–small-scale, noncommercial wheat farming. In contrast to the CSA’s limitless assertion of power, Congress provided an exemption within the AAA for small producers. When Filburn planted the wheat at issue in Wickard, the statute exempted plantings less than 200 bushels (about six tons), and when he harvested his wheat it exempted plantings less than six acres. Id., at 130, n. 30. Wickard, then, did not extend Commerce Clause authority to something as modest as the home cook’s herb garden. This is not to say that Congress may never regulate small quantities of commodities possessed or produced for personal use, or to deny that it sometimes needs to enact a zero tolerance regime for such commodities. It is merely to say that Wickard did not hold or imply that small-scale production of commodities is always economic, and automatically within Congress’ reach.

                  Even assuming that economic activity is at issue in this case, the Government has made no showing in fact that the possession and use of homegrown marijuana for medical purposes, in California or elsewhere, has a substantial effect on interstate commerce. Similarly, the Government has not shown that regulating such activity is necessary to an interstate regulatory scheme. Whatever the specific theory of “substantial effects” at issue (i.e., whether the activity substantially affects interstate commerce, whether its regulation is necessary to an interstate regulatory scheme, or both), a concern for dual sovereignty requires that Congress’ excursion into the traditional domain of States be justified.

                  Which is basically my interpretation of Wickard.

                  From the opinion:

                  The similarities between this case and Wickard are striking. In both cases, the regulation is squarely within Congress’ commerce power because production of the commodity meant for home consumption, be it wheat or marijuana, has a substantial effect on supply and demand in the national market for that commodity. In assessing the scope of Congress’ Commerce Clause authority, the Court need not determine whether respondents’ activities, taken in the aggregate, substantially affect interstate commerce in fact, but only whether a “rational basis” exists for so concluding. E.g., Lopez, 514 U.S., at 557. Given the enforcement difficulties that attend distinguishing between marijuana cultivated locally and marijuana grown elsewhere, 21 U.S.C. § 801(5), and concerns about diversion into illicit channels, the Court has no difficulty concluding that Congress had a rational basis for believing that failure to regulate the intrastate manufacture and possession of marijuana would leave a gaping hole in the CSA. Pp. 12—20.

                  I have difficulty finding that rational basis. If this is what the rational basis standard means, then that’s rather odd. But the rational basis line is not in Wickard.

                  So…I have no idea why you think Raich is so important to understanding the supposed wrongness of Wickard. I’d say that you lied, but I’m not prone to silly hissy fits, only snark.

                  2. Even if they are enmeshed (which I agree is a basic fact about the modern economy) doesn’t prove that the textual interpretation of “commerce among the several states” as imposing limits on federal power over local, non-commercial activities is wrong.

                  It all rests on what you mean by “local” and “non-commercial”. I sincerely doubt you can find a definition that isn’t broken. Cf how I broke your “local store” example.

                  Take the Fourth Amendment. We now live in a world where a lot of our private information is not contained in our homes, persons, papers, or effects, but rather in electronic communications, computer servers, and other places not contemplated by the Fourth Amendment.

                  Yes and?

                  So what the courts have to do is EXTRAPOLATE the principles of the Fourth Amendment. What is it meant to do? What are the best analogies to things that existed in 1791? And that’s what Katz and Kyllo and all those other cases are about.

                  OMG!!! I NEVER THOUGHT ABOUT EXTRAPOLATING?!?!?!?!? THE SCALES HAVE FALLEN FROM MY EYES OH SOCRATES!!!!!

                  Sigh.

                  Well, the purpose of the Commerce Clause was (1) to give the federal government power over problems of national scope and (2) not to extend to things that were purely local and non-commercial.

                  Wait….where did 2 come from? Look, I don’t have your fancy pants lawyerly education which I’m sure has served you well, but I sincerely doubt that the “non-commercial” part or even the local part were contemplated per se. This was a states vs fed thing, not an individual liberty thing. Indeed, from what I can tell, it was intended for narrow purposes of breaking import taxes at state boundaries.

                  Smuggling your extrapolation into a statement of original purpose is…not how extrapolation is supposed to work, dude.

                  But a better way is to say “what line can we draw given the modern factual circumstances that approximates the line the framers drew in the original text”? In a modern, interconnected economy, what sorts of activities do not constitute “commerce among the several states”?

                  Sigh. Yes, I was hear back in my reading of Wickard. We didn’t really need to go through all this above with all its silly errors.

                  And I would suggest, before we come back to Filburn, that Angel Raich growing marijuana on her windowsill to self-medicate a medical condition constitutes that sort of activity. It’s not commercial; it’s not interstate. There may be some connections to the national economy, but they are incidental and very attenuated.

                  Sure, and I might agree. And all of this is perfectly compatible with Wickard. Wickard doesn’t force us to any other conclusion.

                  That’s how I think these cases should be decided, because that, to me, is a plausible way to interpret commerce among the several states in a modern economy. In contrast, what Wickard and Raich do, together, is effectively read “among the several states” out of the clause entirely,

                  Wickard doesn’t. I don’t really see that Raich does in itself. Is the rational basis stuff from Lopez?

                  Look, Raich claims that it’s obvious that there’s a connection and feels the need to do at least a little bit of analysis in that direction. That they analysis sorta sucks just means they botched that, not that the Wickard line is wrong or inevitably leads to this.

                  on the ground that there’s really no such thing as activity that doesn’t affect commerce in some way and doesn’t cross state lines in some way.

                  If that were true, then the opinion in Raich could have been shorter.

                  And, again, it’s a factual matter. We might one day be in a situation where there is no such activity. Coming sooner than you think.

                  I just don’t see that as good textual interpretation, because it is reading language out of the Constitution that is contained in there.

                  I don’t know how you go from a factual error to a textual interpretation, but good for you!

                • ap77

                  But that’s why Lopez was OK. In the first GFSZA Congress made no attempt to link a regulation of local, noncommercial activity to a broader regulatory scheme. That’s not consistent with Wickard. When a jurisdictional hook was added, then the act was upheld, no problem.

                  Overruling Wickard, though, would be a complete mess.

                  That’s fine if you want to look at it that way, but when the exact same thing can be upheld by Congress doing the magic chant in a preamble or something – why even bother? I mean, suppose the government’s lawyers had made the same arguments during the litigation over the original act (not sure if they did)? To me, it just seems like paying lip service to the notion that there is some actual coherent limiting principle when there really isn’t.

                • ap77

                  The big fallacy I can only surmise is driving some of this silliness is that you think that the commerce clause must, in every possible world, place a limit on congressional reach.

                  You’re ruining libertarian fantasy camp, is the thing.

                • Scott Lemieux

                  I have difficulty finding that rational basis.

                  The key is that, at least in contexts other than Kennedy opinions on gay and lesbian rights, “rational basis” is a very deferential standard. (This is the classic.) Congress doesn’t have to have a good reason, so much as a reason that cannot be entirely rule out by any rational person.

          • Hogan

            It’s not stupid to think that someone baking their own cupcakes in a local store has nothing to do with commerce among the several states.

            Is that person growing their own wheat and sugar? Mining their own baking powder? Raising trees and processing the wood pulp into paper for the wrappers? Do they not have a listing in the phone book, or advertising on the internet?

            • dilan

              See above. This is about line-drawing.

              Technically, every breath I take affects interstate commerce. It heats the air, puts more CO2 in the atmosphere, etc.

              I certainly can affect interstate commerce every time I have a conversation. The information I impart might be carried across state lines. I might even inspire my interlocutor to make a purchase.

              The Commerce Clause requires some line be drawn. As I said, even Scott accepts Lopez. This is an issue of what activities are “local” and “noncommercial” enough to fall on one side of the line rather than the other. And it is not obvious at all. At some point, the courts have to argue that some effects are too tenuous to qualify (as it did in Lopez and Morrison).

              • Hogan

                So the person baking cupcakes in the local shop has something to do with commerce among the several states, and not, as you said, nothing. The question is whether the cupcake shop’s activity rises to the level of having any part–any part at all–of its operation regulated by Congress, if such regulation is part of a broader regulatory scheme and not just a bit of random anti-cupcake animus. And I’d say the answer is yes, if that regulation is necessary for the broader regulatory scheme to work. As it was in Wickard.

                • dilan

                  I never said that it had nothing to do with commerce among the several states. Re-read my post. I said I thought it did, but that the argument that it did not fall within the commerce power was not stupid.

          • Scott Lemieux

            we must never forget that it’s a Constitution we are expounding

            Given the way you’ve turned Marshall on his head, I think you can really stop the condescending lectures about how I’m a mere political scientist anytime now.

            • Is it better than being a liar? Cause apparently that’s what I am.

              • Politicians are often liars, which would make Scott a liarologist.

        • nostack

          Bijan,

          “The more interconnected the more things that can have substantial effects on interstate commerce, thus the more things fall under Congresses commerce power. But this isn’t a change in the reading of the power, but a change in the state of the world.”

          Sure! Precisely! But in some situations SCOTUS reads the Constitutional text in a way to adapt it thoughtfully to the modern world, and in other cases they say, in effect, “Look, if you don’t like the plain text of the Constitution then amend it.”

          Given that
          (a) just about everything is interstate commerce now; and

          (b) if we’re allowed to use imaginary extrapolations then everything you do (or don’t do) affects interstate commerce;

          then the question arises: is it Constitutional for Congress to have the power to regulate virtually all economic acts or omissions involving goods? (Okay, maybe not virtually all, but I’m having a hell of a time thinking of non-contrived examples.)

          I don’t think that’s what the framers intended; I’m not sure it’s prudent given you don’t need to go all the way there; given the collective action problems inherent with amending the Constitution it’s probably better to keep powers somewhat limited; and as a structural view, Section 8 is a strange mix of giving Congress very wide latitude over very specific tasks, and “virtually all economic activity” isn’t very specific.

          I mean yes, assuming Congress passes laws that satisfy a majority of voters, it’s probably not jackbooted tyranny, but we shouldn’t be concerned about what the majority considers an infringement of rights: that will take care of itself, hopefully.

          • rea

            I don’t think that’s what the framers intended

            Modern methods of transportation and communication mean that a much bigger percentage of today’s commerce is “interstate” than back in the time of the Founders.

            We also understand economics better than the Founders (Franklin knew Adam Smith, and reportedly read some of “Wealth of Nations” in manuscript, but it was all new stuff back them). So, for the last hundred or so years, the Courts have been thinking of “commerce” in terms of “markets.”

            Applying the constitution to new facts isn’t changing the meaning of the constitution.

          • (b) if we’re allowed to use imaginary extrapolations then everything you do (or don’t do) affects interstate commerce;

            (See above for my response on this.)

            then the question arises: is it Constitutional for Congress to have the power to regulate virtually all economic acts or omissions involving goods? (Okay, maybe not virtually all, but I’m having a hell of a time thinking of non-contrived examples.)

            On a textual reading? Yes. In fact, it’s hard to see otherwise.

            I don’t think that’s what the framers intended; I’m not sure it’s prudent given you don’t need to go all the way there; given the collective action problems inherent with amending the Constitution it’s probably better to keep powers somewhat limited; and as a structural view, Section 8 is a strange mix of giving Congress very wide latitude over very specific tasks, and “virtually all economic activity” isn’t very specific.

            But…I mean this really would be some serious invention, right? Given that the facts about the national economy are what they are, it’s hard to see that most everything isn’t interstate (we agree). I suspect strongly that the founders didn’t anticipate that. But, on a meaning-of-the-term reading it seems like that means too bad for intent. Congress has a power that is proportionate to the activity. Now that the activity dominates almost everything, so does the power.

            I totally understand wanting some way to restrain Congress’s power here, but I genuinely don’t see a textual defence of that. Now I’m not a huge textualist or anything, but my concern about trying something clever here is that it really does open the door for a destruction of most regulation. Which leaves power with the states and, more scarily, with large corporations. It doesn’t *eliminate* the power. So, yeah, I suspect (though I might be wrong) that congress is the best place for this power.

          • Hogan

            is it Constitutional for Congress to have the power to regulate virtually all economic acts or omissions involving goods?

            If Congress has the power to declare war, does it have the power to declare war on any country, no matter how weak and unthreatening?

            Well, yes it does. The Spanish-American War may not have been what the Founders intended, but that’s the way they wrote the congressional war power.

            • dilan

              But Congress doesn’t have the power to regulate all commerce. Only commerce among the several states. The latter power is more limited– we are arguing over the scope of that limitation.

              It would be like if the Congress only had the power to declare war on dictatorships. Then we could argue whether a country like Russia or Iran was a dictatorship.

  • nostack

    [double post, sorry]

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  • Denverite

    This thread has escalated quickly.

    • As I said above, apparently there’s something about Wickard that really gets people going. I perhaps should learn what it is before continuing to talk about it :)

    • True, but I’m actually learning a lot. IA so much NAL, so most of this is new to me.

  • Joe_JP

    Bijan Parsia just read Wickard and is doing a great job discussing it. It’s often helpful to read these opinions. They often aren’t that complicated. People, e.g., criticize Roe v. Wade w/o appearing to even have read the thing.

    Gonzales v. Raich, including Scalia’s concurrence, is good reading. The opinions also mildly help advance respect for judges. O’Connor and Stevens write opinions in effect opposite to their policy choices. Rehnquist and Thomas join O’Connor’s dissent.

    Scalia’s concurrence in Raich notes limits on Commerce Clause power. For instance:

    Lopez and Morrison affirm that Congress may not regulate certain “purely local” activity within the States based solely on the attenuated effect that such activity may have in the interstate market.

    Lopez was a 5-4 ruling, but I personally think the majority was probably right. Morrison involved a law that should have been upheld under the 14th Amendment. Someone noted the fact that the feds were able to basically do the same thing as in Lopez by tweaking the law a bit made that opinion pointless. But, it just goes to show that when the feds acts, it usually has some federal power behind it. If a gun is bought in interstate commerce or somehow affects it (e.g., used on a railroad that travels interstate), yes, it can be regulated here.

    Likewise, the law can’t reach activity “prohibited” and must be “consistent with the letter and spirit of the constitution.” This again addresses various things. For instance, you cannot force a state to pass a law or (though I question this) a non-judicial state official to administer a federal law generally speaking. An abortion clinic regulation can violate abortion rights. Certain federal legislation involving schools were held to be violations of the Establishment Clause. A commercial law can violate due process or any number of other provisions. Certain cases so held.

    The regulation of a multi-billion dollar international industry is not a trivial matter; it involves actions with substantial effects on interstate and international commerce. The limits of the Commerce Clause given current day reach of interstate commerce as a fact is a matter of reasonable debate. But, the Affordable Care Act is another easy case here. OTOH, some application of the Commerce Clause to regulate some temporary “wetland” might be a close question. And, it might even violate some other provision, like the Takings Clause, anyway.

    I actually think — though this is not accepted by the Supreme Court now — the usage in Raich is protected when necessary for personal health. The limited usage here is still acceptable as a matter of power but the interest is not strong enough to override the users right to health. The same would apply to a ban on some abortion procedure at 20 weeks w/o a health exception.

    So limits — some significant regulation of commerce or necessary/proper thereto, not violating various provisions of the Constitution or the “spirit” of the Constitution (e.g., various federalism protections) and the overall limits of the political process. This was seen in ACA, where a filibuster was used that prevented the law from being broader in various ways. It also stopped any such law from being passed at all for decades. Bad policy? Cost of doing business.

    • Ken

      Lopez and Morrison affirm that Congress may not regulate certain “purely local” activity within the States based solely on the attenuated effect that such activity may have in the interstate market.

      This is of course necessary, since the Market is aware of all activities and adjusts accordingly; thus every human act affects interstate commerce. Those who argue that Filburn was only growing a little wheat, or only growing it for his own consumption (both in fact wrong, as Scott explains) and thus could not affect the Market are in fact committing the unforgivable sin of libertarianism, denying the perfection of the Market.

    • Bijan Parsia just read Wickard and is doing a great job discussing it.

      It is very sweet of you to say this.

      It’s often helpful to read these opinions. They often aren’t that complicated.

      I agree. Furthermore, it seems like a lot of the not-so-complicated ones develop an interpretative dogma that obscures more than it enlightens.

      Nice discussion btw.

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