What’s Obama Thinking? Wickard, not Marbury
Obama’s remarks about the Supreme Court and ObamaCare have been criticized by conservative pundits as intemperate, inflammatory, and ignorant. What was he thinking when he said the Court would be taking an “unprecedented, extraordinary step” if it overturned a law duly passed by Congress? How could a constitutional law professor not have heard of Marbury v. Madison, which long ago established that the Court may do exactly that?
When Obama attempted damage control the next day, his remarks provided a clue as to what he might have been thinking in terms of precedent — and it wasn’t Marbury v. Madison:
[L]et me be very specific. We have not seen a Court overturn a law that was passed by Congress on a economic issue, like health care, that I think most people would clearly consider commerce — a law like that has not been overturned at least since Lochner. Right? So we’re going back to the ’30s, pre-New Deal.
…
[T]he Court has traditionally exercised significant restraint and deference to our duly elected legislature, our Congress. And so the burden is on those who would overturn a law like this. … I expect the Supreme Court actually to recognize that and to abide by well-established precedence out there.
In the late 1930s, Franklin Delano Roosevelt was proposing — and the Democratic Congress under him was passing — laws that would have required the Court to allow the federal government power to regulate interstate commerce far beyond any that had been granted before in this country. The resulting fight within the Court was similar to the battle today: textualists and originalists on the conservative side; proponents of a living Constitution almost infinitely malleable on the liberal side.
FDR first tried to retaliate against the conservative justices by packing the Court. That attempt failed, but his intimidation nevertheless managed to transform the Court into an instrument far more in line with his wishes. The shift had an especially profound effect on the judicial review of legislative actions that affect commerce:
Prior to the New Deal the judiciary was seen as guardian of the Constitution, ensuring that government activities of all kinds squared with the principles of the federal charter. Following the New Deal era, the judiciary’s function changed to one of “bifurcated review,” allowing great deference to the political branches in regulating economic matters and applying heightened scrutiny to government encroachments on civil liberties. [emphasis added]
It didn’t hurt, either, that during his extended tenure as president Roosevelt ultimately appointed eight of its nine justices, affecting the Court’s tenor long past his service and solidifying the extreme liberalizing trend.
How liberal and how extreme? Although Charles Dickens had his Oliver Twist character Mr. Bumble famously declare the law to be “a ass,” most people may not realize just how big an ass the law can be until they study the 1942 Supreme Court ruling Wickard v. Filburn.
Filburn was a farmer who had been growing more than the maximum amount of wheat per acre that had been set by a 1938 federal statute. The government wanted him to destroy the excess and pay a fine. But he argued that his wheat was not interstate commerce, because it was kept completely within the confines of his own farm and only fed to his livestock.
Common sense would dictate that Filburn was correct: after all, he wasn’t selling his wheat anywhere, much less interstate. But the Court ruled that Filburn’s wheat-growing activities meant he’d be buying less wheat on the market to feed his chickens, and that would affect interstate commerce. As the New York Times of the day rightly observed in an editorial:
The net of the ruling … seems to be that Congress can regulate every form of economic activity if it so decides.
Still Obama could have studied the issue a little more carefully before he opened his mouth and he could have gotten the names of the relevant cases right. Lochner does not belong in the discussion anywhwhere because it struck down a state law based on the constitionally protected right of private contract and thus had nothing to do with interstate commerce. Also it was effectively overturned and is now archaic, due to the growth of substantive due process under the 14th amendment which extends due process to the states (so they could not reinstitute slavery after Appomattox Court House). These things are a matter of record. And how many lawyers are available to do Obama’s bidding? It just goes to show that, probably due to Affirmative Action, at heart Obama is a lazy man and he put his laziness on display his laziness a million times, not for the first time by letting his “auto” biography be ghost written. Only thing he is not lazy at is campaigning because people are stuffing bills in his pockets. An admirable fellow this Obama is.
The 2012 election for me is not about Obamacare or taxes or the national debt, it is about the Supreme Court. The next President will appoint enough Justices to give the court a strong liberal or conservative majority for a generation. This is where the future of America will be decided.
So;
Vote as if your life depends on it; Because it does.
Robert, the 2012 election for me is about Obamacare AND taxes AND the national debt AND the Supreme Court.
This fall we have the right and responsibility to cast the votes heard round the world.
Will we endorse government without limits? Or, will we embrace that risky, rocky rollercoaster ride known as an imperfect republic?
And a color-blind, rational, DOJ. In every one of these cases, Bush (and McCain) ware comletely different from Obama. Can we stop throwing W under the bus, now, please?
Obama is no dope. He is smart as a whip and a very dangerous person to leave in office, especially since the president holding office in the next term will decide the future of our courts and our constitutional freedoms for the next few decades.
Hussein is dumb as a rock & only follows orders; furthermore, if we had a Dr. to test him for drugs, we would find out that he is STILL on cocaine..
If he is re-elected we all better start using cocaine.
Even assuming that the decision in Filburn was correct, the PPACA would seem to take it a step further still, by actively compelling commerce. The farmer in Filburn wasn’t being forced to grow crops. PPACA is like saying that everyone in the country MUST grow a certain amount of crops or pay a fine. That’s quite a different idea than limiting the amount of crops grown by people who, of their own volition, decide to grow them.
The farmer in Filburn wasn’t being forced to grow crops.
He was forced to stop growing crops for his own use. It’s a dreadful overreach against liberty.
You’re kidding, right? Being forced to NOT grow crops is NOT an abridgement of freedom? People can’t be permitted to grow atuff “of their own volition?”
You’re being sarcastic, yes?
Hence the difference between the Right’s desire for a list of affirmative rights for the private citizen, which we have, and a list of affirmative rights or powers for the elites running the government to have, which the left wants. And once they get those powers, you’ll need another revolution to unscramble that egg, if it can ever be done again.
It’s going to take a man more like George Washington to right this ship.
The tree of liberty will need an I.V. of plasma to keep it from it’s death sentence.
This kind of thing is why I’m depressed about the Republican field. B.O. is at least every bit as bad as Carter, but where is our Ronald Reagan? None of the Republicans want to make me actually vote *for* them, not just against B.O.
I know how you feel, Matt, but don’t be discouraged. I think Romney will be one of those “sleeper” presidents, the ones nobody expects anything of but who do an amazing job.
for starters, Romney actually seems to like this country! that puts him miles ahead of Obama.
but frankly, we don’t have any choice. this could be the most important election of our lifetime, where we decide who we want to be. is America still a land of opportunity, a melting pot where anyone with enough drive and ambition can make it? or are we a “patchwork quilt” (Obama’s term) split along tribal lines, who dislike and mistrust each other and are motivated by grievances, and who think the government should provide everything to everyone?
I’m going with #1, Mitt Romney’s America.
“I think Romney will be one of those “sleeper” presidents, the ones nobody expects anything of but who do an amazing job.”
I surely recall how virtually no one expected Reagan to be anything at all to write home about. I think it would be wise for those who don’t like Romney at all to temper their sentiment about him with the above thought.
Romney’s judicial advisor is Robert Bork.
Interestingly, Bork is the only advocate of conservative judicial activism I know of. He wrote this in an article in AmSpec that had the readers screaming. He had a point, though; you don’t bring a knife to a gun fight (except as back-up).
The right doesn’t want an enumerated list of rights – we recognize that rights flow from the natural law tradition and judicial history predating the founding of the republic. That’s what the (almost forgotten) 9th Amendment is all about.
The left doesn’t want enumerated powers for the fed – they want unlimited powers except where it bothers them (i.e. interferes with their sex lives).
Obama, if he was referring to Wickard, was not showing the precision required for such a discussion. As such, he was irresponsible, inflammatory and came across looking like the fool he is. Yes, he is probably well aware of Marbury, but it doesn’t matter.
I don’t think your are being very clear; it should be the opposite. As Reagan pointed out, the Constitution (except for judicial rights) limits government by listing what they could do; the USSR granted rights by listing what people could do. Giving rights (such as a right to education) requires government to do things affirmatively and opens the door to giving people “rights” they don’t want. This is the sort of thing Bader wanted in her talk about the Egyptian constitution. We do have the right to due process and a speedy trail, and it doesn’t work all tht well.
Although Wickard was a unanimous decision, if you read the actual ruling, it is an amazing work of twisted logic. The Commerce Clause has been used like a key in a video game that allows the entire structure to be destroyed. It appears the Supreme Court sees this – if they rule in favor of Obamacare, they might as well pack up and go home, since they’ll never need to rule on anything again.
That twisted bit of legal reasoning was their warmup for Roe v Wade.
I wonder how much of Wickard was simply wartime deference to the executive. It seems to me that many Constitutional limits were set aside in the prosecution of WWII and this seems to be one of them. They may have been simply stepping out of the way to allow the U.S. to win WWII by saying in effect, the Supreme Court will not interfere in any way with wartime food production in any capacity. I wonder if the court would have ruled differently if the country was at peace at the time.
There are two cases that determine the Supreme Court’s supremacy. One is Marberry v Madison, which is widely discussed and is the basis of the Court’s claim. The other is the Cherokee Nation rulings v Andrew Jackson. That’s the series of cases where Jackson reputedly said, “Mr. Marshall has rendered his opinion, now let him enforce it.” Whether Marshall actually said that is disputed, but Jackson’s subsequent actions were not. And Cherokee came after Marberry, so there is no clear resolution.
In practice, it takes two branches to overcome the third. Usually the three parties just go along. If it comes to a fight, it will depend on how much power The Obamanation can muster in Congress, and if they have the will to impeach Him. It would be curious to see how Zerobama’s defying the Court would play out. Possibly, several powerful actors would defy Obamacare, and would be persecuted [sic] by the Department of Justice (An Orwellian name today, if there ever was one.) and the courts would refuse to enforce the illegal laws. It could make for some juicy history texts.
Hopefully, the Zero will be out on his ear in November, and we won’t have to find out. But a Constitutional crisis is so much fun!
I’m so happy that you brought Wickard v. Filburn. It is not discussed often, or widely, but IMO, it is the one I would overturn without giving it a second thought. According to Wickard v. Filburn, the Commerce Clause allows Congress to regulate activity on privately owned land even when NO COMMERCE HAS OCCURRED. It is the poison pill swallowed by our government in 1942 and has laid waste to our liberty ever since.
The logic of the ruling is that anything you do that could possibly interact with other states constitutes an effect on interstate commerce–and hence gives the government authority over you to regulate it.
In a modern society, it’s virtually impossible to live without such effects. Even while you sleep, your home is drawing electricity off an interstate power grid. Interstate Commerce! Gotcha! Or you receive long-distance phone calls from out of state, on a national communications network. Interstate Commerce! Gotcha!
The only way to escape this is to live like a survivalist in a cave, dressed in bearskins.
Only if the bear you killed with your spear didn’t cross state lines.
…or the bear’s range doesn’t cross state lines. Or the range of whatever the bear feeds on (salmon?) at any time of its life doesn’t cross state lines. Or – I’m sure there’s a lawyer who can dream up whatever excuse the federales require.
But spears are produced in interstate commerce (even if they aren’t). And the bear could have come from Federal teritory.
No, you simply have to refuse to adhere to those laws you consider out of bounds. If you do so openly you will be crushed by the juggernaut of government, made an example of to intimidate your fellow citizens. So, instead people find ways around the rules, create whole new underground economies amongst themselves. In essence the government forces the people to create entire societies under the public radar, secret networks of barter, exchange, and commerce held out from under government control. For the classic example look at the liquor trade during prohibition, an economy created out of nothing all to serve a need and completely out of government control. Same can be said for our current drug trade.
Actually, the Government even tried to use the Commerce Clause against drug users:
In CA, medical marijuana had been recently decriminalized, and some patients were growing marijuana for their own use to relieve pain and so forth.
But the Bush Administration didn’t like that, so they sicced the Commerce Clause on them anyway. In the case Gonzales v. Raich, the Government cited Wickard to argue that anyone growing marijuana for their own use was having a negative effect on the interstate traffic in marijuana. Interstate Commmerce! Gotcha! (While completely ignoring the fact that interstate drug trafficking is itself a Federal crime; usually you WANT to have a negative effect on it.)
Fortunately, the Supreme Court didn’t agree.
I haven’t thought it through inany detail, but lurking somewhere under your point is the fact that, when they couldn’t nail Al Capone on his criminal enterprises, one of the government Untouchables came up with the brilliant scheme of nailing him for the income taxes he evaded paying on his criminal earnings. I’ve often thought there must be a Fifth-Amendment case lurking somewhere in there.
re: Raich “Fortunately, the Supreme Court didn’t agree.”
Wrong. Unforunately, SCOTUS did agree, and Raich is a precedent for over-stretching the commerce clause that even some conservative justices signed on to.
To follow Wickard v. Filburn to its logical conclusion, abortion has to be illegal because not having a conceived child carried to full term birth interferes with the interstate commerce in baby food and diapers, right? Or am I missing something here…? (This would be sarcasm, lest somebody be righteously indignant).
Only if you move into another state during the pregnancy, and change doctors and facilities.
Cybergeezer, you gotta twist the logic a bit more. If the baby food is produced in another state, that’s interstate commerce.
And if they find you and your wife were on vacation in another state within the last nine months………………..
Now you have it! That’s how it works!
Except that Roe v. Wade had nothing to do with the interstate commerce clause. It had to do with its opposite. The Right to Privacy. The Right to Privacy is found in the emanations and penubras beaming off the right to be free from searches and seizures. If only Mr. Wickard had now about those penumbras when he did not want his private stash of wheat siezed. If Law Review President Obama had written a Law Review article about the intersection of the interstate commerce clause with the right of privacy, I wonder how he would have come down on any number of issues.
Hence the difference between the Right’s desire for a list of affirmative rights for the private citizen, which we have, NOT.
Private citizens enjoy their affirmative rights and freedoms through their own nature, with some help from God, and not through any glorious affirmation in the Constitution. It rightly forbids the Federal government from trampling on their rights and freedoms in the first ten amendments.
The liberals are the ones who want the glorious affirmations, such as the nebulous ‘rights’ to food, clothing and housing – just like the European ‘constitution’ pretends to bestow.
FDR did bully the Commerce clause into insignificance through Wickard v Filburn, and the sooner the Supreme Court undoes that travesty, the sooner we Americans will have our Constitution back from the body shop, shining, with the dents hammered out of it. May it shine another 500 years, and set a good example for the rest of the world.
500 years? Ask yourself how someone like Obama ever got elected and if a people who did that is capable of mature decision making. I will be happy if the constitution lasts to June, that’s when we find out if the Commerce Cause makes us cattle.
it’s called tyranny
Ask any lawyer to explain why the commerce clause treats each of the named parties which the congress has the power to regulate commerce with, why there is a disparity in the actions of the law between them. Why does one expressed power have three actions; one kind for foreign nations, another for Indian tribes and yet a third for commerce among the states? Nowhere else is the power used to regulate a person, a business or a transaction except as it is applied among the states.
Because lawyers treat case law, like Wickard, as defacto amendments to the constitution, such a question will be the rare time you will get to witness a speechless lawyer.
Wickard is just a symptom of what went wrong with the commerce power. The argument needs to be developed by using the Federalist Papers that this power was intended to prevent the states, in an exercise of economic sovereignty, from restraints on interstate trade and uncompetitive practices arising therefrom. It was a solution to a problem under the Articles of Confederation. The power has a clear history.
Ancient history, now. But that IS the law. Not the nefarious usurpations of the congress with the accomplises in the court.
W v. F has been a bane on liberty neigh on 60 years. The ability to do what we wish with our capital, property, and labor is the foundation of individual liberty. If the individual mandate of Obamacare is not struck down we will all be buying a Volt someday soon.
Great article, neo. I think you may be onto something.
I’m no legal scholar (or Constitutional Law Perfesser), but Wickard v. Filburn has got to be without a doubt the most ludicrous Supreme Court decision ever handed down. It’s worse than the Dred Scott decision. At least with Dred Scott, the Court tried to uphold private property rights as they were understood at the time (that human beings could be property).
But Wickard v. Filburn says with a straight face that I’m affecting interstate commerce if I plant tomatoes in my back yard, because then I’m not buying them from the grocery store. Thus, my tomato garden is subject to regulation by the Federal government. Which tends to throw a monkey wrench at the whole idea of private property.
Actually, Dred Scott was equally bad, making some outlandish assumptions and taking a clearly living document approach to the Constitution. I’ve found it interesting to read some of these decisions – they’re readily available and not that intimidating.
Obama’s take on this dispute reminds me of the answer that Speaker Pelosi gave when asked about the constitutionality of the individual mandate. Her answer: “Are you serious? Are you SERIOUS?” That indicates to me that Obama and the left all consider Wickard v. Filburn as a license to do pretty much as they chose – as long as they can get the votes. With Obamacare it was a close thing. Required much twisting of arms and bribery (Cornhusker kickback, Louisiana purchase, Gator aid, the Stupak amendment, and who knows what else).
I think you’re correct, neo, Obama cannot see how the Supremes can go against the law as he sees it.
One of my high school teachers told me of a similarly outrageous case.
A small town in Texas not far from a border with another state had a streetcar line that ran the length of the town, not much more than a mile.
But on one side of the town ran a railroad that ran across state lines.
The railroad ran parallel with the streetcar line. The Feds asserted that while the streetcar line did not cross state lines the fact that it ran along the same route as the railroad meant it was in competition with the railroad. Theoreically, at least, you could have hiked over to the railroad and had them take you the mile to the other end of town instead of the streetcars, or got off the railroad and had the streetcar carry you their portion of the distance.
So the Feds stated that they had to set the fares for the streetcar line.
There is no end to this. Politicians grasping for power, special interest groups trying to gain a special interest advantage, or Federal Bureaucrats trying to justify and expand their jobs will just keep looking for things the Feds can control, until we reach the same degree of freedom as an ant colony.
Mannie says “It would be curious to see how Zerobama’s defying the Court would play out.”
There are millions of able-bodied persons in this country who have sworn an oath to defend the Constitution of the United States from enemies DOMESTIC or foreign. Not one of them have sworn to obey or defend the President come Hell or high water.
“Curious” is not a word I would use to characterize these Patriots’ response to the zerO’s defiance of the Supreme Court.
Team Obama and the phantom jobs that never were By John Lott Published April 06, 2012
http://www.foxnews.com/opinion/2012/04/06/team-obama-and-phantom-jobs-that-never-were/
Thanks for that. It looks like this administration is gaming the jobs numbers even more than previous ones – Alan West questioned the numbers last month. People leaving the job market, seasonal adjustment, which set of numbers you use, and job birth and death are all fertile grounds for manipulation.
So we’re going back to the ’30s, pre-New Deal.
Try again Mr. President. Think Carter v. Carter Coal Company, 298 U.S. 238 (1936).
Specifically, it analyzes the extent of Congress’ power, according to the Commerce Clause, looking at whether or not they have the right to regulate manufacturing. A commission setup by the Bituminous Coal Conservation Act required all mines to pay a 15% tax on coal produced. The act was not mandatory, but mines that complied would be refunded 90% of the 15% tax. Think this as yet another manifestation of a mandate (i.e. using a conditional tax).
In Carter, the Supreme Court ruled the Bituminous Coal Conservation Act unconstitutional by a 5-4 margin.
This was part of the “New Deal” not pre-New Deal, not unprecedented.
Neo: you’re correct that Obama was technically wrong to say “pre-New Deal,” because (as my piece explains) prior to 1937 the Court had sometimes thwarted him in his New Deal efforts. The turning point occurred in 1937.
It’s hard to know what to think about Obama and his wacky attack on the Supremes. Assuming he’s as smart as he claims and he got good grades at Harvard Law, does he have a memory problem? Poorly served by grade inflation? Blinded by ideology?
Neo -
I can’t believe you censored me. Twice.
As you know, after reading my censored post, your article is way off base. Cass Sunstein’s vision is what was parroted by Obama, not Wickard.
Well then, is Wickard a veiled overturning of Marbury? I mean, the court did acqueise a congressional act that everyone except government expansionist abhor. Look at Kelo. Or maybe the court could be accused of modern inconsistency. Hey, know what? Maybe case law is a pile of rubble. Oh, so I wish. Case law is constitutional amendment by Nine. It is the witches brew and black pot cauldron from which the legal profession both mightily profits and ruins the nation. Case law is the scrotal source of legal Orwellianisms. I have a bucket of vituperative for case law.
Don’t tell Obama that there is a tax (or fine) that he isn’t aware he can put on someone.
Since Filburn was a fine on him because he wanted to plant wheat for his own use and that supposedly affects Interstate Commerce, how about those people who use solar or wind power to reduce their electricy consumption? Doesn’t that also affect interstate commerce if they aren’t buying electricy that travles between states?
Privacy, what ever happened to that once cherished, 1973, judicial principle? So valuble then. After all, it does pertain to one’s own body, heck, in this situation it covers more than the womb & more than just women. But it’s disappeared. Hell, I’m no ear of corn, what’s going on?
When Obama speaks of “precedence”, is he meaning to say “precedents”? I hear other people using the same formulation, but for me precedence means the rank order in which things occur, not previous findings in law. I see Neo repeats the use of the word, which I suppose means I’m wrong.
OBAMA WAS THINKING ABOUT CASS SUNSTEIN
Talking about the health care law, the president said last week that it would be an “unprecedented, extraordinary step” for “an unelected group of people [to] somehow overturn a duly constituted and passed law.”
Read more: http://www.politico.com/news/stories/0412/74968.html#ixzz1rcIQY8QM
Sunstein, Obama’s regulatory czar, states: ‘Beliefs and commitments’ of nation’s leader should supersede judges, “This … was the central thesis of Sunstein’s 2006 Yale Law School paper, “Beyond Marbury: The Executive’s Power to Say What the Law Is.” The paper, in which he argues the president and his advisers should be the ones to interpret federal laws,
Sunstein writes: “The allocation of law-interpreting power to the executive fits admirably well with the twentieth-century shift from common law courts to regulatory administration if the governing statute is ambiguous,”.
Sunstein concludes “the executive should usually be permitted to interpret (law) as it reasonably sees fit.”
Sunstein’s argument for the executive branch to judge the laws it enforces makes perfect sense, in a dictatorship. He is arguing against the rule of law, against the consent of the governed, against the 800-year history of freedom in the West since Magna Charta. Sunstein, of course, assumes that he will be a member of the government telling the rest of us what to do; by implication that the law will not apply to him, because he can decide to exempt himself. What a blind, pathetic, insufferable fool.