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“Keep reading McCulloch till you understand it”: Why Wickard Was Obviously Correct

[ 107 ] May 12, 2015 |


In comments yesterday, we heard familiar arguments that Wickard v. Filburn was wrongly decided.  But it wasn’t, and attempting to place restrictions based on the federal commerce power based on the arguments raised in Wickard would be a incoherent fiasco, just like all previous attempts to arbitrarily limit the commerce power were.

The facts of Wickard are straightforward:

The appellee for many years past has owned and operated a small farm in Montgomery County, Ohio, maintaining a herd of dairy cattle, selling milk, raising poultry, and selling poultry and eggs. It has been his practice to raise a small acreage of winter wheat, sown in the Fall and harvested in the following July; to sell a portion of the crop; to feed part to poultry and livestock on the farm, some of which is sold; to use some in making flour for home consumption, and to keep the rest for the following seeding. The intended disposition of the crop here involved has not been expressly stated.

In July of 1940, pursuant to the Agricultural Adjustment Act of 1938, as then amended, there were established for the appellee’s 1941 crop a wheat acreage allotment of 11.1 acres and a normal yield of 20.1 bushels of wheat an acre. He was given notice of such allotment in July of 1940, before the Fall planting of his 1941 crop of wheat, and again in July of 1941, before it was harvested. He sowed, however, 23 acres, and harvested from his 11.9 acres of excess acreage 239 bushels, which, under the terms of the Act as amended on May 26, 1941, constituted farm marketing excess, subject to a penalty of 49 cents a bushel, or $117.11 in all. The appellee has not paid the penalty, and he has not postponed or avoided it by storing the excess under regulations of the Secretary of Agriculture, or by delivering it up to the Secretary. The Committee, therefore, refused him a marketing card, which was, under the terms of Regulations promulgated by the Secretary, necessary to protect a buyer from liability to the penalty and upon its protecting lien.

For the reasons I stated yesterday, this is really an easy case. The wheat market created collective action problems in an insterstate commodity market. Article I explicitly empowers Congress to address these problems. Quotas on wheat production are a reasonable means of addressing these problems. The act is therefore constitutional as applied to this case.

Critics of Wickard miss the boat because they come to the case as if it is an individual rights cases rather than a case about the scope of governmental power. (It’s not a coincidence that most critics of Wickard tend to oppose federal regulation of the economy; it’s also not a coincidence that Filburn also brought a Fifth Amendment claim. Most of these federalism cases are just libertarian economic arguments in thin disguise.) They focus on whether Filburn, when he grew some winter wheat he intended to consume himself (and some of which he sold, free riding on federal regulations he refused to abide by, and some of which he fed to his commercial livestock), was engaged in interstate commerce at this precise moment. But that’s not the right question. The right question is whether wheat quotas are a reasonable part of a program to regulate an interstate market. They are, and that ends the case in the government’s favor. The federal government has the power to regulate interstate commerce, and it has the powers necessary and proper to regulate interstate commerce. The claim that plenary federal powers to regulate an interstate market cannot be applied to individual cases necessary to make the regulation effective is nonsensical. As Jackson put it, “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.'”

At this point, opponents of Wickard will turn to the slippery slope: “I can see the day coming when even your home garden is gonna be against the law!” But Wickard does not actually create an absolutely unlimited federal police power; Lopez did not overrule Wickard. Could Congress apply quotas to a small, noncommercial home garden? Maybe — if it could show that such a regulation was reasonably related to a broader regulatory scheme. Wickard doesn’t tell us, because the quotas were applied to commercial farms and Filburn was a commercial farmer. There’s not really much point in considering whether Congress can apply quotas to small noncommercial home gardens growing legal products, because 1)it’s not going to do this, and 2)in any extraordinary hypothetical circumstance where it would do this it’s likely that the regulation would be justified by a reasonable relationship to a broader regulation of interstate markets.

The slippery slope most certainly does go the other way, however. If the criticisms of Wickard sounds familiar, it’s because they’re exactly like the arguments used to assert that the Affordable Care Act was unconstitutional. “People who do not buy health insurance are not, in doing so, engaged in interstate commerce.” And it’s true! True — and completely irrelevant. The health insurance exchanges are a concededly valid regulation of interstate commerce. Guaranteed issue without a mandate would cause the exchanges to fail. Therefore, the mandate is constitutional even though it does not directly regulate interstate commerce. Article I gives the federal government the powers reasonably thought to be necessary to address problems of interstate commerce. Wickard was correct; the Court’s holding on the mandate in Sebelius was wrong.

And the problems (if you’re not a libertarian, I mean) with the arguments made by Wickard critics don’t end there, and that goes double if you think that it would exceed the commerce power for the federal government to regulate abortion clinics. Having to show that every business was engaged in interstate commerce before occupational health and safety or environmental regulations could be applied would be a disaster. Forcing the federal government to, at a minimum, show that a business was more like Heart of Atlanta and less like McClung before civil rights laws apply would be a disaster. For most Wickard critics, of course, these outcomes would be features, not bugs. But there are a few liberals who would be happy to go down this conservertarian rabbit hole because medical marijuana in California. Thankfully, Stevens et al. were much smarter than that.

I will conclude by turning things over to Akhil Amar:

The most important limit, the one we fought the Revolutionary War for, is that the people doing this to you are the people you elect. That’s the main check. The broccoli argument is like something they said when we were debating the income tax: If they can tax me, they can tax me at 100 percent! And yes, they can. But they won’t. Because you could vote them out of office. They have the power to do all sorts of ridiculous things that they won’t do because you’d vote them out of office. If they can prevent me from growing pot, can they prevent me from buying broccoli? Perhaps, but why would they if they want to be reelected? So if you ask me what the limits are, I’d say read McCulloch vs. Maryland. And reread it. And keep reading it till you understand it. The Constitution is a practical document, it’s designed to work. And the powers are designed to be flexible in order to achieve the aims of the document.

Let’s Get Back to the Good Olde Days, When White Men Were Chosen Entirely on Merit

[ 89 ] May 12, 2015 |


You may remember Joseph Epstein as the purveyor of right-wing identity politics for people who consider Roger Kimball too nuanced and unrepetitive. You may also be aware of the conservative idea that there is only one objective standpoint, that of the white heterosexual straight male. So it may not surprise you to know that Epstein is the man to distill the latter idea into 180-proof self-parody:

Now have we come to the point where we elect presidents of the United States not on their intrinsic qualities but because of the accidents of their birth: because they are black, or women, or, one day doubtless, gay, or disabled—not, in other words, for themselves but for the causes they seem to embody or represent, for their status as members of a victim group?

This is the kind of thing that doesn’t really require refutation. Ditto his whining about the fact that people have the temerity to criticize an essay in which he wrote that “I have said that I think homosexuals curse, and I am afraid I mean this quite literally, in the medieval sense of having been struck by an unexplained injury, an extreme piece of evil luck, whose origin is so unclear as to be, finally, a mystery.” (It should go without saying that the essay is also larded with sub-Allan Bloom complaints about relativism on college campuses that Epstein, like so many others, has already written innumerable times.) But that doesn’t mean I don’t appreciate Chait stepping up to the pinata:

Yes, that’s right. America used to elect presidents on “intrinsic qualities” rather than “accidents of their birth.” And this process resulted in the election of forty-three consecutive white men, an outcome Epstein must regard as an extreme coincidence. The last president to be elected on the basis of intrinsic qualities rather than accidents of birth was George W. Bush, whose birth circumstances, Epstein apparently believes, had no bearing upon his career trajectory.


In a larger sense, of course, the very existence of Epstein’s piece serves to disprove its thesis. If it is still possible for a white man to write an incoherent farrago of self-pity whose only shred of evidence directly undercuts its thesis, and have such drivel thrown onto the cover of a national magazine, then white men are probably still doing okay.

Do Not Inappropriately Manipulate Your Balls

[ 196 ] May 11, 2015 |

Hmm, seems a little light for the greatest scandal there absolutely ever was in the history of history except steroids. Where is the vacated championship that is clearly the only just outcome?

…and, yes, excellent point by Magary:

Under his watch, the NFL has adopted the very American legal tradition of manufacturing crime out of crime. You can take a small crime—any crime, really—and you can inflate it by making the PROCESS of pursuing that crime utterly sacrosanct…

The “But Abortion Law Is More Restrictive In Europe” Fallacy Never Dies

[ 111 ] May 11, 2015 |


It must be said that the bottom-line argument of Glenn Reynolds’s op-ed is correct: Congress should not pass a statute banning abortion after 20 weeks, and indeed should not be regulating abortion. Alas, much of his defense of the law is as shaky as you would expect from someone who threatened that if Democrats had the temerity to criticize judges who believed that the ACA was unconstitutional Congress might “revist” the possibility of passing anti-abortion statutes that it had already passed and had upheld by the Supreme Court. For example:

One such conflict is likely to appear this week, when the House is expected to vote on a 20-week limit on abortions. Such a limit polls well— Americans are much more supportive of early abortionsthan late-term abortions — and would still leave the United States with more-liberal abortion laws than nearly all of Europe.

This point about Europe’s allegedly more restrictive abortion laws is a common one, and it’s wrong. You can’t just look at the thresholds beyond which greater nominal restrictions apply to abortion in isolation. First of all, to make the effect of term restrictions in the U.S. even remotely comparable to those in Europe you would have to repeal the Hyde Amendment and have every state accept the Medicaid expansion. You would also have to repeal arbitrary state laws making the operation of abortion clinics difficult. And, finally, the relevant European laws generally don’t ban abortion after 12 weeks; they permit them in cases of threats to the life or health of the mother. Just looking at the statute books tells you very little about how these exemptions are applied in practice, and there’s evidently a major difference between how such exceptions will be interpreted by doctors in France and in Alabama.

As I’m sure you’ve already predicted, Reynolds reaches the right conclusion in this case for the wrong reason — namely, that he’d like to restore unworkable Gilded Age understandings of the federal power to regulate interstate commerce:

It’s possible, of course, that the Supreme Court would uphold regulation of abortion under the clause. In the past, it has, absurdly, upheld federal commerce power to punish a farmer for growing too much wheat on his own land, to feed to his own family and livestock, on the ground that if he didn’t grow his own he would be forced to buy the wheat on the open market, which would drive up prices and thus affect interstate commerce.

Wickard v. Filburn was, of course, correct. The regulations in question dealt with collective action problems of the kind the commerce and necessary and proper clauses were designed to address: namely, that individually rational decisions by farmers to grow as much as possible had the collectively harmful effects of lowering prices and degrading the quality of land. Filburn’s exceeding his surplus was inconsistent with both goals, and while of course no one farmer’s actions can affect wheat prices without being able to regulate individual actions it would be impossible to address the problems Congress identified with interstate commodity markets. One can agree or disagree with the wisdom of the policy, but it is permitted by the Constitution.

Still, in this case the appropriate precedent isn’t so much Wickard as Katzenbach v. McClung. Abortion clinics are at least as engaged in interstate commerce as Ollie’s Barbecue was. If Reynolds believes that the Civil Rights Act of 1964 is unconstitutional, he should say so. For those of us who aren’t crackpots, this is an easy case. The proposed abortion ban is terrible public policy and is also unconstitutional, but it is not unconstitutional because it exceeds the power of Congress to regulate interstate commerce.

With the bar set that low — and with liberal abortion-rights justices being fans of broad government power, while conservative limited-government justices oppose abortion — there’s a good chance that the law would pass Supreme Court scrutiny, whether it really ought to or not.

This is a very odd formulation. It is true, for the reasons I’ve stated, that none of the liberal justices would be likely to find that the statute exceeds the federal commerce power, but since this statute is straightforwardly inconsistent with Casey all of the liberal justices would find that it violates the Fifth Amendment, so it’s beside the point. There’s no both-sides-do-itism here; if the statute is upheld, it would be because 5 justices who sporadically pretend to care about federalism don’t really. (In Justice Scalia’s case, there’s no doubt at all — his interest in federalism ends when there’s any clash with his policy preferences.)

But the fact that nobody really cares about federalism shouldn’t be news. The fact that House Republicans have already passed a nearly identical bill once and probably will again should make this point abundantly clear.

“On Top Of A Huge Pile of Money, With Many Beautiful Ladies.”

[ 8 ] May 11, 2015 |

Charleston Law was truly a classic American grift.

Update: [PC]

Filling out this beautiful vista just a bit more, co-founder and current owner George Kosko, who wouldn’t pay for a graduation reception this weekend, has the very rare distinction of actually managing to get himself fired in 2008 from his position as a federal magistrate:

U.S. Magistrate Judge George Kosko, a founder of the Charleston School of Law, remained mum Tuesday on reports that he had been passed over for reappointment after being accused of making disparaging comments about women and Asians.

The state’s federal judges met behind closed doors in Columbia on Friday and decided against reappointing Kosko to another eight-year term on the bench, The State newspaper reported, citing unnamed sources. While reappointment is never a given, it is unusual for a sitting magistrate to be brushed aside, area attorneys said.

No formal announcement has been made about Kosko. Chief Judge David Norton of Charleston reportedly presided over Friday’s meeting, but he has not disclosed its results. He did not return a call placed to his office Tuesday.

Kosko also did not return calls to his Charleston office.

The State reported that a magistrate’s screening committee recommended against Kosko’s reappointment after investigating allegations that he had made inappropriate comments . . .

Cherie W. Blackburn, a Charleston attorney who chaired the committee, declined to discuss specifics Tuesday but called the process “a fair one.”

The Rev. Rob Dewey, a committee member and senior chaplain with Coastal Crisis Chaplaincy, also declined to discuss details of Kosko’s case. But he said the panel undertook its work with “the utmost seriousness.”

“We met two times and struggled with the information we were provided with,” he said. “And as the decision was made, we lost sleep, because it was a difficult decision.”

Kosko was one of five founders of the Charleston School of Law, which opened in fall 2004. He was a shareholder in the private school, a member of the advisory board and an adjunct faculty member.

Alex Sanders, another of the school’s founders, called it “very unfortunate” that Kosko wasn’t reappointed but predicted it would have no effect on the law school.

Nobody Could Have Etc.

[ 43 ] May 10, 2015 |

One could argue that people like this should probably not be let loose on the streets with state-sanctioned life-or-death powers:

The most senior Baltimore police officer charged over the death of Freddie Gray used his position to order the arrest of a man as part of a personal dispute just two weeks before the fatal incident, prompting an internal inquiry by Baltimore police department.

During an erratic late-night episode in March, Brian Rice boasted he was a Baltimore police lieutenant and warned “heads will roll” if officers in a nearby city did not “go arrest” his ex-girlfriend’s husband, according to a police report obtained by the Guardian.

The incident is the latest in a series revealed by the Guardian that policing experts said raised questions over Rice’s ability to perform his duties as a supervising officer and the Baltimore department’s decision to keep him on front line patrols.

Two weeks later, it was Rice who initiated the arrest of Gray after the 25-year-old “made eye contact” with the lieutenant in a west Baltimore street and ran away. Gray was chased and subjected to a fatal arrest that was declared unlawful by the city’s top prosecutor.

Medicaid Fraud

[ 23 ] May 8, 2015 |

Florida Gov. Rick Scott Attends Hurricane Conference

Electing a governor who looked and acted like a villain in a superhero movie seemed like a great idea. What went wrong?

I Have Grifted My Way from the AEI to ALEC

[ 9 ] May 8, 2015 |


Lee Fang’s story for The Intercept about how Corinthian Colleges kept swindling students is first-rate journalism. A teaser:

The spectacular crash of Corinthian Colleges after years of systematically deceiving thousands of students into enrolling into low-quality, high-cost education programs has once again raised questions about how the for-profit college industry staved off stronger rules governing the $1.4 billion per year in federal loans that helped keep Corinthian afloat.

Some hints emerged today in the giant chain’s filing for Chapter 11 bankruptcy protection in Delaware. It shows that Corinthian made secret payments to an array of political consultants, think tanks and political dark money groups.

But read the whole etc. And, yes, Corinthian students should have their loans forgiven.

American Exceptionalism

[ 50 ] May 8, 2015 |

Shorter Verbatim Kevin Williamson: “Indeed, as societies grow wealthier and more integrated into the global economy, economic inequality tends to increase, a fact of life in such different countries as the United States, Sweden, Singapore, and India…”

Um, except: “If inequality simply reflects individual qualities, why can we observe such stark differences in its level over time, not to mention between different countries? The answer, of course, is that public policies shape the distribution of both market and post-tax and transfer income.

Abstract thought experiments and references to old novels are a more attractive way for conservatives to frame their defense of existing economic privilege than engaging with the actually existing debate over inequality. The context of this debate is that the tax and transfer system in the United States does less to reduce market inequality than the systems in nearly any other advanced economy.”

And in addition: “The US remains the most unequal nation (after taxes and transfers), but now a main driver of that inequality is market inequality. In this figure, the US (along with Ireland and the UK) has market income inequality substantially higher than the rest of the countries. In other words, it is the distribution of wages and income from capital, independent of the fiscal system, that makes the US comparatively unequal. Indeed, America also does less redistribution than several other rich countries, European countries in particular, so that’s still part of the story, but it’s not the whole story or even most of it.”

Nick Clegg, Political SuperGenius

[ 224 ] May 7, 2015 |


As I write this the current front-page BBC seat tally, which breaks out the seats won by the Democratic Unionists and Plaid Cymru, confines the Lib Dems to “other.” A fitting tribute to the political genius of Nick Clegg, who indeed is no more relevant going forward than the Cannabis Is Safer Than Alcohol or Monster Raving Loony Party or Christian Peoples Alliance parties.

It’s also impressive that Ed Miliband is not the most inept leader of a major British Party, although his strategery of refusing the possibility of an alliance with the SNP and the utter decimation of Labour in Scotland* that inevitably resulted was certainly an impressive grab at the title.

*In the first major defeat for Labour, the party’s shadow foreign secretary and general election coordinator, Douglas Alexander, was defeated in Paisley and Renfrewshire South by a 20-year-old politics student, Mhairi Black, on an extraordinary 33% swing to take 51% of the vote.

NSA Bulk Data Collection Is Illegal

[ 53 ] May 7, 2015 |



A federal appeals court in New York on Thursday ruled that the once-secret National Security Agency program that is systematically collecting Americans’ phone records in bulk is illegal. The decision comes as a fight in Congress is intensifying over whether to end and replace the program, or to extend it without changes.

In a 97-page ruling, a three-judge panel for the United States Court of Appeals for the Second Circuit held that a provision of the USA Patriot Act known as Section 215 cannot be legitimately interpreted to allow the bulk collection of domestic calling records.

The ruling was certain to increase the tension that has been building in Congress as the provision of the act that has been cited to justify the bulk data collection program nears expiration. It will expire in June unless lawmakers pass a bill to extend it.

Since it’s a statutory ruling, Congress could maintain the program, but it’s still a major ruling. Some excerpts from the ruling (all Democratic nominees, what a coinky-dink):

…the parties have not undertaken to debate whether the records required by the orders in question are relevant to any particular inquiry. The records demanded are all‐encompassing; the government does not even suggest that all of the records sought, or even necessarily any of them, are relevant to any specific defined inquiry…

Thus, the government takes the position that the metadata collected – a vast amount of which does not contain directly “relevant” information, as the government concedes – are nevertheless “relevant” because they may allow the NSA, at some unknown time in the future, utilizing its ability to sift through the trove of irrelevant data it has collected up to that point, to identify information that is relevant. We agree with appellants that such an expansive concept of “relevance” is unprecedented and unwarranted.

To the extent that § 215 was intended to give the government, as Senator Kyl proposed, the “same kinds of techniques to fight terrorists” that it has available to fight ordinary crimes such as “money laundering or drug dealing,” the analogy is not helpful to the government’s position here. The techniques traditionally used to combat such ordinary crimes have not included the collection, via grand jury subpoena, of a vast trove of records of metadata concerning the financial transactions or telephone calls of ordinary Americans to be held in reserve in a data bank, to be searched if and when at some hypothetical future time the records might become relevant to a criminal investigation.

Such expansive development of government repositories of formerly private records would be an unprecedented contraction of the privacy expectations of all Americans. Perhaps such a contraction is required by national security needs in the face of the dangers of contemporary domestic and international terrorism. But we would expect such a momentous decision to be preceded by substantial debate, and expressed in unmistakable language. There is no evidence of such a debate in the legislative history of § 215, and the language of the statute, on its face, is not naturally read as permitting investigative agencies, on the approval of the FISC, to do any more than obtain the sorts of information routinely acquired in the course of criminal investigations of “money laundering [and] drug dealing.”

I’m not terribly optimistic about what Congress will do, but the ball is back in their court, and at least now if they do nothing it might end the program, giving opponents some leverage.

Alberta Election Blogging

[ 47 ] May 7, 2015 |


I’m not saying it’s not surprising — I still don’t really believe it — but I argue that the NDP is not quite as inexplicable as it seems. In particular, it’s crucial to understand that 1)the provincial Alberta NDP is not a socialist party, and 2)calling Alberta the “Canadian Texas” or whatever is true to some extent but can also be pretty misleading:

We should start with some of the necessary qualifications to Heer’s analogy. Despite the socialist heritage of the federal NDP — which has only very loose connections to individual Canadian provincial parties — Notley is no leftist radical. (Warren and Sanders aren’t either, of course, but they are further to the left of their country’s center of political gravity.) With the arguable exception of a proposed $5/hour increase in the minimum wage, the basic ideas the party ran on — a 2 percent increase on the corporate tax rate, a more progressive income tax, expanded health care spending, and unspecified increases in the royalties paid by oil companies for extracting resources — are relatively anodyne mainstream liberalism. Particularly given that these proposals are likely to be enacted in more moderate form, they represent a shift to the left but not nearly as major a one as you might expect from the shift in party labels.

In addition, Alberta’s political culture is not as monolithically reactionary as some might assume. Like the Democratic Party of the New Deal era, Alberta’s Progressive Conservatives have been a dominant but ideologically heterogeneous coalition, and its turn towards more American-style conservatism is relatively recent. If Alberta is the Canadian Texas or Mississippi, the “Canadian” part is still doing an awful lot of the work. (Alberta, after all, has had single-payer health care since 1950.)

Like its federal counterpart prior to its electoral decimation in 1993, for much of its history Alberta’s PCs were quite moderate, comparable to the pre-Thatcher British Tories or European Christian Democrats. Under Peter Lougheed, premier from 1971 until 1985, Alberta’s Conservatives were business-friendly with a culturally traditionalist rural base, but also favored substantial public investments funded with progressive taxation. (Alberta remains the only Canadian province without a sales tax.) This is a striking contrast with oil-rich American states like Texas, Oklahoma, and Louisiana, all of which have tax codes in which the poor pay a higher percentage of their incomes in taxes than the rich.

It would be interesting to know how an election with instant runoff voting would have turned out. The natural assumption is that the remaining Wild Rose voters would have overwhelmingly split for the Tories rather than the NDP, and that’s probably right. But given how much Wild Rose support was just generalized anti-incumbent sentiment, and how furious Wild Rose voters were over Prentice’s attempted pre-emption, it’s not an entirely straightforward question.

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