Scalia and Wickard: Not Unexpected

With regard to Jonathan’s post on Justice Scalia’s harsh words for Wickard, I’m not really surprised. Back in 1992, I surveyed the (admittedly relatively limited) literature on the commerce clause from conservative and libertarian scholars and concluded:

There is virtual unanimity among modern conservative and libertarian scholars that the broadening of federal power during the New Deal era resulted from mistaken Supreme Court decisions. When it comes to what can be done about it, however, there is less unanimity. One school of thought, represented by former Judge Robert Bork and Judge Ralph Winter of the U.S. Court of Appeals for the Second Court, argues that it is toolate to rely on the judiciary to reverse the centralizing trend of modern government. Winter claims that the unraveling of the modern Leviathan must be done through the political process, because it would be too disruptive to society andto the economy for judges to strike down federal programs wholesale. And, because judges must act on principle, they cannot pick and choose which laws to declare unconstitutional…. Richard Epstein argues that, at least on the margins, the Supreme Court canstill restrain national economic regulation. He thinks “that it is possible to make incremental changes by principled adjudication.”

The consensus noted above is something that many liberal ACA defenders don’t seem to recognize: many conservatives, including conservative Supreme Court Justices, have long accepted the Court’s broad post-New Deal commerce clause jurisprudence, but NOT because they think those decisions were correct. If the ACA involves, as lower court judges seem to agree, a novel expansion of federal power–even one that seems to naturally follow from past exercises of such power–it’s not the least bit surprising that many conservatives will balk, as the case represents a rare case where the Winter and Epstein positions described above need not conflict in practice.

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