Posted by: captainfalcon | December 26, 2010

Lawyering Tip (from my ass to your ear)

Minor in the grand scheme of things, but Cato’s amicus brief (mentioned here) makes a clumsily artificial effort to limit Wickard’s holding:

[C]ontrary to the conventional academic view, Wickard did not expand the Commerce Clause to  include the power to regulate intrastate activity that, when aggregated,  substantially affects interstate commerce.  “Instead, Wickard actually stands for the proposition that this intrastate activity can be regulated because the failure to do so  would impede the government’s ability to regulate the interstate price of wheat by restricting supply” (p. 6; quoting Commandeering the People).

It is difficult to convey the level of absurdity involved in saying that the modern era’s foundational commerce clause case stands for a proposition about wheat. (It’s kind of like saying the Book of Genesis is about a garden.) To be sure, the controversy at issue in Wickard involved wheat, but Supreme Court precedents are not confined to their particular facts — otherwise they would never be cited.

My criticism is not that the Barnett brief is disingenuous – that’s a perfectly defensible quality for a brief to possess. Instead, the problem is that this part of the brief is mediocre lawyering. Limiting Wickard to a proposition about wheat is simply of the wall (even compared to a project that is, itself, arguably off the wall.) A more credible effort that would still accomplish the brief’s argumentative aims would have formulated the Wickard holding as the proposition that the government can regulate intrastate activity where the failure to do so would impede the government’s ability to regulate the interstate flow of commodities. Without making an ass of the law, that still carries with it the three implications the quote seeks to convey, viz. (1) that only intrastate activity can be regulated, (2) that such activity is regulated pursuant, not to the Commerce Clause alone, but to the Commerce Clause as augmented by the Necessary and Proper Clause (the “impede the government’s ability” part implicates this), and (3) that there is something edgy, maybe even fishy, about invoking the Commerce Clause to regulate somewhat intangible, somewhat derivative, markets as opposed to the old fashioned goods and services that the Founders were used to.

Finally, just because it gives me a frisson to drill (however ill-informedly) through the superstructure, it is superficially puzzling why the brief goes out of its way to insist that Wickard “did not expand the Commerce Clause…”, when it proceeds to acknowledge that functionally the same expansion in congressional power was accomplished via the Necessary and Proper Clause. I think the point of this revisionism become a lot clearer when you remember that if Wickard didn’t expand the Commerce Clause then it left it as it originally was. Assuming the failure of Jack Balkin’s more graceful, but equally hopeless, revisionism, once an originalist reading of the Commerce Clause is shoehorned into contemporary case law all that’s needed to constrict Congress’s commerce power is to adapt the Necessary and Proper Clause to the “original Commerce Clause.” Because N&P is inherently parasitic on whatever clause it’s being invoked in conjunction with, and because (as a consequence) there is not a robust field of jurisprudence centrally about the Necessary and Proper Clause, that adaptation can proceed as if conducted on terra nova. (This means, in turn, that the adaptation can be done without overruling any commerce clause cases currently in place; those exercises of congressional power can be distinguished away.)

At least, I think that’s what’s going on here.



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