More on Federalism and this Supreme Court

Yesterday I wrote that this Supreme Court confused me - I couldn't find a consistent thread in their federalism-related rulings.  Orin Kerr at Volokh has an explanation that makes more sense to me than any other.  He explains where each justice is coming from, and concludes:

The mathematics of federalism on today's Supreme Court, then, is that the four
Justices who do not favor judicial enforcement of federalism constraints only
need one additional vote to form a majority. Conversely, for the Court to rule
in favor of a federalism limitation, common ground must exist that ties together
the differing viewpoints of all five of the right-of-center Justices. The odds
are that the former will happen more often than the latter, which is why
victories for federalism principles have tended to be rare and on relatively
narrow (that is, symbolic)

The Mises Blog informs me that this notion of "affecting" interstate commerce being sufficient to justify federal intervention originated in 1942 with Wickard v. Filburn.  Apparently the majority was accepting Wickard, though Thomas's dissent that I quoted in my earlier post sure points out how Wickard pretty much demolishes the commerce clause.


  1. Matt:

    The real hope was that Wickard would be overturned. Anyone on the pro-Raich side who was not themselves stoned at the time knew that a _narrow_ ruling in favor of marijuana was not going to be forthcoming. So every sane person knew it would either be an affirmation or a wholesale repudiation of Wickard. Repudiation would have been better, but it also would have had sweeping consequences, invalidating in a single decision massive mounds of legislation and regulation...much of it dating back to the New Deal.

    Those of us with libertarian preferences would have considered that a fine outcome indeed. But perhaps it was too much to expect from the Supreme Court.

  2. markm:

    The problem now is that this decision takes federal power even further than Wickard. See Volokh for a more lawlerly take on this. The law under which Wickard was prosecuted did not cover gardens, or even small plots of wheat grown for sale. That is, it recognized that some wheat cultivation was too small scale to affect interstate commerce, but Wickard's 23 acres were over the threshold. The Wickard supreme court still had to ignore the original meaning (commerce meant only trade when the Constitution was written) and stretch their imaginations to read "regulate interstate commerce" as "regulate anything that might have a small indirect effect on interstate commerce", but at least the law they upheld did not assume a federal power to regulate everything. The federal marijuana laws do.