I'd imagine one wants to litigate Wickard v. Filburn in its entirety, rather than just the downstream Gonzales v. Raich

You have identified a root perversion. Roscoe Filburn’s wheat did not leave Ohio or even his farm. He didn’t offer it for sale; the wheat was for his own use. It was deemed to “affect interstate commerce” and thus within the scope of the interstate commerce clause. With that, a provision intended to remove power of states to tax each other’s goods and services and promote a free trade zone instead became a mechanism to nitpick and micromanage every last little detail, ossify existing practice, protect large players, give loopholes to the politically connected, and enable mass regulatory capture. It cannot be overturned quickly enough.

https://supreme.justia.com/cases/federal/us/317/111/

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laughing_man 3 hours ago | parent [-]

I don't see SCOTUS ever overturning Wickard, sadly. Too many federal programs and regulations would lose their legal basis if that happened.

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gbacon 2 hours ago | parent | next [-]

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.

	▲	PaulDavisThe1st 31 minutes ago \| parent [-]
		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?

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wahern 2 hours ago | parent | prev | next [-]

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.

	▲	laughing_man an hour ago \| parent [-]
		Drugs were always a weird exception to what was otherwise pretty consistent jurisprudence on Scalia's part.

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PaulDavisThe1st 32 minutes ago | parent | prev [-]

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.

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mothballed 5 hours ago | parent | prev [-]

That would also invalidate the civil rights act, as the (similar) 19th century CRA was already struck down because the 14th amendment binds against discrimination by public not private actors. The reason why the modern CRAs weren't also struck is because they rested on the laurels of Wickard v Filburn declaring the CRA (this time) is about regulating "interstate" commerce.

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drak0n1c 4 hours ago | parent | next [-]

That would be an improvement in the same spirit, as the modern CRAs are also unconstitutionally limiting over what one chooses to do with their own property. The scope should be limited to government-involved services and facilities, as those must serve all possible taxpayers. We live in a more connected, option-saturated information age where even bigots more often than not understand the utility of at least doing business politely and making nuanced exceptions. Egregious offenses are corrected by social pressure and business competition. The current regime of ambulance-chasing liabilities inserted into every organizational, contracting, and hiring process harms far more people of every race and sex than it helps.

	▲	BobaFloutist 2 hours ago \| parent [-]
		>Egregious offenses are corrected by social pressure and business competition. This doesn't work when bigots are willing to pay a premium for discriminatory services. Also, do you feel the same way about the FHA and Title VII? Those also involve regulating what you can choose to do with your private property, but I don't want to assume that you don't consider housing and employment to be distinct from, say, hotels and grocery stores.

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bombcar 5 hours ago | parent | prev [-]

fixing the interstate commerce clause is one of those things that needs to be done eventually, but will likely never be done - even if just to "fix" it so everything remains the same but is based on simpler allocation of powers than through a "loophole".

	▲	gbacon 3 hours ago \| parent [-]
		John Roberts will find a way to screw it up.