Scalia Changes His Tune on Wickard and the Commerce Clause. Will It Matter for ObamaCare?

Supreme Court Justice Antonin Scalia surprised more than a few legal observers back in 2005 when he sided with the liberal majority in Gonzales v. Raich and voted to affirm Congress’ authority under the Commerce Clause to outlaw medical marijuana that had been legalized by the state of California. It was a surprise because in the previous decade Scalia had voted to limit the scope of congressional interstate commerce power in two major cases, U.S. v. Lopez (1995) and U.S. v. Morrison (2000), and was therefore seen as a fairly solid vote for federalism and against overreaching congressional power.

Yet not only did Scalia side with the federal government in the medical marijuana case, he took the opportunity to say a few kind words about Wickard v. Filburn (1942), the New Deal era ruling where the Supreme Court famously—some might say infamously—allowed the federal government to regulate wheat that had been cultivated and consumed entirely on one man’s farm under Congress’ power to “regulate commerce...among the several states.” “The potential disruption of Congress’s interstate regulation,” Scalia wrote of Wickard, “and not only the effect that personal consumption of wheat had on interstate commerce, justified Congress’s regulation.”

Scalia was roundly criticized by libertarian and conservative legal experts for this decision—and rightfully so. Neither Wickard nor Raich demonstrated much respect for the original meaning of the Commerce Clause, and Scalia is of course typically a great advocate of constitutional originalism. (Nor is this the only time Scalia has put the brakes on his originalism.)

But perhaps Scalia has done a little more thinking on the subject in the intervening years. As Adam Liptak of The New York Times reported earlier this week, in Scalia’s forthcoming book Reading Law: The Interpretation of Legal Texts (co-written with Bryan A. Garner), the conservative justice offers a decidedly negative take on that landmark New Deal decision. As Liptak notes:

Justice Scalia writes, for instance, that he has little use for a central precedent the Obama administration has cited to justify the health care law under the Constitution’s commerce clause, Wickard v. Filburn.

In that 1942 decision, Justice Scalia writes, the Supreme Court “expanded the Commerce Clause beyond all reason” by ruling that “a farmer’s cultivation of wheat for his own consumption affected interstate commerce and thus could be regulated under the Commerce Clause.”...

Justice Scalia’s treatment of the Wickard case had been far more respectful in his judicial writings. In the book’s preface, he explains (referring to himself in the third person) that he “knows that there are some, and fears that there may be many, opinions that he has joined or written over the past 30 years that contradict what is written here.” Some inconsistencies can be explained by respect for precedent, he writes, others “because wisdom has come late.”

You know what they say: Better late than never.

As for the question of what this news means for Scalia’s vote in the looming ObamaCare decision, I wouldn’t call it a game-changer. As I explained shortly before the Court heard oral arguments in the health care case, there was already good reason to think Scalia would vote against ObamaCare’s individual mandate. And since there’s zero chance the Supreme Court is going to overturn Wickard as part of its health care ruling, Scalia’s new hostility to that case only figures in as a sort of background influence.

While it is nice to hear that Scalia finally agrees with the originalist consensus on Wickard, that fact alone doesn’t really tell us anything we didn’t already know about his likely approach to ObamaCare.

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  • ||

    I WANT MY HAT TIP BITCHEZ!!!

    Totally posted this in the comments a couple of days ago.

  • The Hammer||

    Executive privilege'd!

  • ||

    Well actually thinking back i posted a comment to someone posting this who probably got it off of drudge or something similar which got it from the nyt which got it from the book Scalia wrote...

    That is hat tip worthy right?

  • ||

    "Update: Hat tip to Scalia for pimping his book to the NYT."

  • ||

    It's an invisible hat tip, joshua. You just have to have the right browser addon to see it.

  • Flyboy||

    Not invisible, "transparent."

  • James Anderson Merritt||

    This Hat Tip thing reminds me of Marvel Comics' ancient policy of awarding "No Prizes," mostly to readers who pointed out apparent flaws in plot, continuity, etc., and then explained them in plausible ways in letters to the editor. Do they still do that? I haven't followed comics much since the 1990s. I haven't had to: they have taken over TV and movies! But I miss the letters pages.

  • ||

    I'd say he's just like almost every other SCOTUS judge that has been or ever will be: he makes up his mind about something, and then figures out how to make it constitutional (or decide that it isn't).

    This isn't an indictment of him in particular; I think almost every one of the justices does this.

    "Drugs are bad, so I'm going to go ahead with the expansive interpretation of the Commerce Clause on this one."

    "Obamacare is bad, so I'm going to go ahead and limit the power of the Commerce Clause on this one."

  • Mike M.||

    Maybe the guy really changed his mind. People do change their minds from time to time for non-venal reasons. Only time will really tell for sure of course.

  • ||

    This is exactly right. Then combine that with the fact that the people doing this are the final, ultimate authority on this, and they know it. That's a lot of power. And we all know what power does. And no, Jimbo, I'm not talking about the power you use to operate your moving Realdoll.

  • ||

  • ||

    Jezebel is really good at proving women have no sense of humor.

  • ||

    Jezebel is really good at proving that Jezebel is not funny.

    Janeane Garofalo on the other hand....

  • General Butt Naked||

    I couldn't find the funny stuff. Did they forget to put it up?

  • silent v||

    Most of them are shit, but I did laugh at Sarah Thyre's line. But she is married to Andy Richter, so he probably gave it to her.

  • Killazontherun||

    Rodney: So, what the doctor say, honey?

    Roseanne: I'm having a baby.

    Rodney: I hope it's a boy. I hope he looks like me.

    Roseanne: That'll be a goddamned miracle.

    Funniest line ever. Proves nothing about their sense of humor though.

  • Mannix||

    Scalia probably read Paul Madison's essay on the history, text, custom and practice of regulating commerce and knew there was no escape:

    http://www.federalistblog.us/2.....regulated/

  • NYer||

    "Supreme Court Justice Antonin Scalia surprised more than a few legal observers back in 2005 when he sided with the liberal majority in Gonzales v. Raich"

    It wasn't really that surprising. Conservatives, (with a few exceptions), have always taken an expansive view on police powers and the drug war. Heck, even when Scalia is taking the "federalist" position he tends to do it while opposing personal liberties like in the Lawrence v. Texas case.

  • daveInAustin||

    Scalia doesn't surprise me at all. It's the same mentality that says "keep the government hands off my medicare". Unfortunately, folks don't understand that if you allow the federal government to regulate, say intrastate drug use, then, like the camel in the tent you allow it to stick it's nose in everything.

  • daveInAustin||

    Scalia doesn't surprise me at all. It's the same mentality that says "keep the government hands off my medicare". Unfortunately, folks don't understand that if you allow the federal government to regulate, say intrastate drug use, then, like the camel in the tent you allow it to stick it's nose in everything.

  • BMFPitt||

    So he believes in federal power to do things he likes, and opposes it for things he doesn't. And that's shocking how?

  • ChicagoTom||

    But perhaps Scalia has done a little more thinking on the subject in the intervening years.

    Or perhaps he's just another full of shit unprincipled jurist.

  • Mr. FIFY||

    You're thinking of Ginsburg, Tom.

  • James Anderson Merritt||

    I was surprised to read today that Ginsburg joined Thomas in blasting the Pacifica ruling in their concurrence with today's FCC v Fox opinion. They called it "wrong when it was issued." Good for them.

  • ||

    scalia's weakness is state/police power. raich is a perfect example of him compromising his federalism in deference to police power.

    scalia is GREAT on speech, but deference to police/state power is his weakness.

    however, i'm less cynical than some here, in that i consider it possible that he is reconsidering as a matter of conscience and probably realizes he screwed the pooch in raich

    i disagree on the lawrence analogy elsewhere in this thread. of course, the law in lawrence was odious, but it was not the type of clear cut issue that raich or wickard are, nor is it a federalism issue

  • Mo||

    If he's great on speech, explain his ruling on Morse v. Frederick.

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