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:: A constitutional law blog by Scalia/Thomas fan David M. Wagner, M.A., J.D., Research Fellow, National Legal Foundation, and Teacher, Veritas Preparatory Academy. Opinions expressed here are those of the author and do not reflect those of the NLF or Veritas. :: bloghome | E-mail me ::

-- Eve Tushnet

"Frankfurter was born too soon for the Web, but I'm sure that, had it been possible, there would have been the equivalent of Ninomania for Frankfurter."
-- Mark Tushnet
(I agree, and commented here.)

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-- Underneath Their Robes

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    :: Wednesday, June 08, 2005 ::
    Raich -- the morning after

    Many thanks to the many who discussed my "Bad dream" post about Raich yesterday, e.g. Howard Bashman, Peter Sean of Lex Communis (also here), Eve Tushnet, and Marty Lederman, writing at Scotusblog.

    Am I going to give this blog a new name? Marty suggested "Clarencemania." Hmm. How about "Better than Toast"? (Does anyone remember that Thomas's English Muffins ad campaign from about 20 years ago -- "Thomas's is better than toast"?) And you'll notice that there is, and always has been, a link in my margin to the Justice Thomas Appreciation Page.

    But no -- no changes here. On issues concerning the scope of federal power, Scalia has in general been a consistent New Deal Justice, full of the Spirit of '37. His critique of Humphrey's Executor in his Morrison v. Olson dissent blasted H.E. as "considered at the time the product of an activist, anti-New Deal court," and nothing in that dissent suggests that he does not share that view. (To be sure, Humphrey's Executor can never be sufficiently condemned, but I'm not sure I, personally, would have listed its anti-New Deal nature as one of its vices. In fact, I don't think H.E. is "anti-New Deal" at all, though it was anti-FDR -- but I digress.)

    Scalia's Raich concurrence is also unsurprising in light of his opinion for the Court in Whitman v. American Trucking. When I published a little reflection on that case myself -- 11 Baltimore J.Env.L. 25 (2003) -- I confined myself to its positive aspect, namely, its two-fisted rejection of the Sunsteinian "new non-delegation doctrine," under which the non-delegation doctrine leaves Congress free to delegate as much as it likes, while the agencies police their own use of those powers, and the courts police the agencies' self-policing.

    But American Trucking also has what I might call a "dark side," namely, its uncritical reliance on New Deal-era delegation decisions that find that phrases such as "in the public interest" give agencies sufficient guidance so that we cannot say that lawmaking has been delegated. Uh huh, and blackbirds can fly to Jupiter.

    My point here is, if those 1940s delegate-your-buns-off cases are good law, there's no reason by Wickard isn't too. Except -- they shouldn't be, and it shouldn't.

    For further clarification on why I remain a Ninomaniac, come to SEAALS this year and listen to my paper on "Justice Scalia and the Jurisprudence of Tradition."

    :: David M. Wagner 2:04 PM [+] ::

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