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 29 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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PaulDavisThe1st 30 minutes ago | parent | prev | next [-]

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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wahern 2 hours ago | parent | prev [-]

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.