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.