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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 ::

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    :: Wednesday, June 20, 2012 ::
    Scalia and Wickard

    We may get the Obamacare decision tomorrow (though it may be delayed until as late as June 28), so I thought I'd put down a canard that is getting around.

    Justice Scalia, together with frequent co-author Bryan Garner, has just released a new book, this one on interpretation of legal texts. In this book Our Hero writes that Wickard v. Filburn "expanded the Commerce Clause beyond all reason[.]" This has set off a flurry of speculation that he is ready, not only to strike down Obamacare in its entirety, but to go further than he has yet gone in striking down federal legislation based on expansive readings of the Commerce Clause.

    One such speculator is health-care policy analyst Avik Roy, writing in Forbes. We have Mr. Roy's assurance that "Wickard remains "remains the core justification for 70 years of federal intrusion into the activities of individuals and localities" and that

    Scalia's criticism of Wickard in his new book is surprising because Scalia’s concurrence in Gonzales v. Raich, the most recent major Commerce Clause case, is justly seen as an endorsement of Wickard. “Congress may regulate even noneconomic local activity if that regulation is a necessary part of a more general regulation of interstate commerce,” he wrote in that 2005 case. 

    Well, Mr. Roy is not a lawyer. Time out for a reminiscence. My own interest in the public-policy implications of constitutional law long antedates my own entry into law school. With due regard for certain scholars who have influenced legal thinking without law degrees (Terry Eastland, Walter Olson, Christopher Wolfe), these are rare, and usually, like Prof. Wolfe, in Poli.Sci. departments. As for me, hearing the views of other scholars dismissed on the grounds that Prof. So-and-so "is not a lawyer" - and I heard this a lot in my DOJ days - was a significant factor in my own decision. In fact, some of the friends who, when asked directly, encouraged me not to go to law school had themselves initiated and solidified that intention with their own "Prof. A. isn't a lawyer" put-downs.

    So you will permit me to repeat -- I have, after all, been preparing for it for some time -- that Mr. Roy is not a lawyer. There are therefore certain nuances that he may miss, even with his expertise in medical policy. One is that Wickard is not, in fact, "the core justification for 70 years of federal intrusion into the activities of individuals and localities." Many such intrusions could get by perfectly well relying on NLRB v. Jones & Laughlin and U.S. v. Darby, without needing Wickard. And if Wickard were overruled but Jones & Laughlin and Darby were not, we would still have a very broad Commerce Clause -- possibly broad enough to allow Obamacare in its entirety.

    Another easily missed nuance is that there is no necessary connection -- indeed, there is frequently a sharp disjunction -- between what a Justice says in off-the-bench speeches and writings, and what he says in his capacity as a Justice. "Commentator" and "Justice" are two different roles, and there is no need for perfect consistency between them. In the specific case of Scalia, he is more respectful of precedent on the Court than off it. Not even in his Raich concurrence (with which I disagree, for the record: I think the O'Connor and Thomas dissents in that case both scored well) did he argue that Wickard was well-reasoned: only that it was the law, part of the corpus of precedents that the Court either has to follow, distinguish, or overrule; and that, under it, the Necessary and Proper Clause solves the case. (O'Connor. as I understand her, would distinguish Wickard; Thomas would certainly overrule it.)

    So if Mr. Roy or anyone else is expecting Florida v. HHS (the name the Obamacare case has taken on) to feature, even in a concurring or dissenting capacity, a Scalia opinion calling for the overruling of Wickard, I would advise them to adjust their expectations.

    Mr. Roy also sees tea leaves in a speech given last Friday by Justice Ginsburg to the American Constitution Society (the organization that in effect says to the Federalist Society: "No, you're wrong, there isn't any liberal bias at law schools, so along comes us to provide one") in which she talked up the value of dissents (quite rightly imo). and then, according to Mr. Roy:

    Most tellingly, she touched upon the key question that I believe the Court is still working through: what to do with the law if the individual mandate is indeed found to be unconstitutional.
    Well we don't have direct quote there; it would be quite extraordinary if a Justice said in public "Here's where we're at in our historically private and closely guarded deliberations, see...." Yet no one should be surprised that a "compromise" such as striking down the individual mandate but leaving the rest of the bill standing has inherent split-the-difference appeal for Justice Kennedy, who, for all we know, like Powell in Bakke, or the three-Justice "controlling opinion" in Casey, may be working on an opinion that only he and one or two others agrees with down the line, with separate majorities supporting different parts* -- though I believe the present Chief will do everything possible to prevent a fragmentation as radical as that and to make sure there is an "opinion of the Court."

    *Recall how in yesterday's Williams v. Illinois, Justice Kagan, dissenting on behalf of truth, justice, and the American way, and joined by Scalia as well as Ginsburg and Sotomayor, noted that there were in fact five votes against the legal reasoning of the "plurality," and so the "plurality" gets to be the "plurality" only because there were five votes for the outcome.

    :: David M. Wagner 4:07 PM [+] ::

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