Comment by laughing_man
1 day ago
I don't see SCOTUS ever overturning Wickard, sadly. Too many federal programs and regulations would lose their legal basis if that happened.
1 day ago
I don't see SCOTUS ever overturning Wickard, sadly. Too many federal programs and regulations would lose their legal basis if that happened.
You’re almost certainly correct. Kagan, Sotomayor, and Jackson would argue this consequentualist line. Thomas, Alito, and Gorsuch could be persuaded by textualist or originalist arguments and are the most likely overturn votes. Kavanaugh was a key man on standing up and defending the so-called PATRIOT Act during the George W. Bush administration, so no way he knocks out this pillar.
ACB talked a strong originalist game during her confirmation but since shown it’s not her core philosophy. Although Roberts appears inclined to rein in the administrative state, he’s aligned chaotic neutral and thinks himself too clever.
Already down 4-3 and having to persuade both Barrett and Roberts to join a ruling overturning parts of Wickard, another Dobbs seems wildly unlikely even though both precedents were poorly reasoned. At best, they agree to some marginal or technical reduction in scope. It seems equally likely that she sides with the four, in which case, what does Roberts do? He may need to make it 6-3 to control who writes the opinion. Such strong numbers would be unfavorable enough on the surface that he might persuade her back to an even more tepid limitation. The concurring opinions that it would induce from Thomas, Alito, and Gorsuch would be entertaining reading, at least.
There's no way Roberts would vote to overturn this given his history of pretending a penalty directly remitted to the IRS for not carrying health insurance was not a tax for the whole ACA fiasco.
But Filburn must needs be overturned. The sovereignty of states depends on it.
Please suggest one, but ideally three, things that you think that overturning Wickard would lead to that would cause K, S & J to vote against doing so?
The federal civil rights act of 1964 is probably a good one. The clean air act is another. Probably others like consumer protection laws, healthcare regulations, safety laws (OSHA), etc. These are all based on the expanded powers from wickard v fillburn. If portions of these were challenged and overturned, I believe those justices would not view that as a good thing.
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In Gonzales, O'Connor dissented and Scalia, who was too afraid of pulling the rug out from under the administrative state, issued a concurrence. So, surprises do happen.
Drugs were always a weird exception to what was otherwise pretty consistent jurisprudence on Scalia's part.
I was prepared to excuse his vote as an exceptional situation until Sebelius, when rather than revisit and fix his mistake in Gonzales he chose to embrace the affirmative mandate vs passive prohibition distinction nonsense, a deux ex machina fit for one purpose and one purpose only. Fool me once....
There's a good argument to be made that it was just good luck for Scalia's intellectual legacy that he died before the conservative supermajority on the court got rolling, because he was already well on his way to replacing principles with expediency: https://www.scotusblog.com/2026/03/justice-scalias-uncertain... Like the old saying goes, it's easy to criticize, much more difficult to offer constructive, durable solutions.
I call BS. Wickard is about, effectively, "police power" based on a broad interpretation of the scope of federal/interstate commerce.
As noted by other commenters, the concept of federal control of interstate commerce was intended to prevent states from interfering with trade between themselves and other states, and to create some "higher" authority for aspects of commerce that truly transcended state borders and control.
Most of what has happened in terms of programs and regulations fits very comfortably into that understanding. What doesn't, which I don't think is a lot, should probably go away anyway.
If you can use the commerce clause to prevent a guy growing wheat on his own property and feeding that crop in its entirety to his animals, there literally isn't an activity the federal government can't regulate.
Correct. I'm suprised sexual orientation hasn't been regulated by the same stupid logic. Clearly if you're not making babies you're effecting all kinds of interstate commerce.