Is Wickard about to get Slaughtered?
Pun intended. Anyway, before I actually discuss, I'm gonna be transparent here:
- I really, really want Wickard gone, not least because it led to Raich, which would literally allow Congress to reinstate the National Prohibition Act (and go much, much further) without any need for re-ratifying the Eighteenth Amendment.
- I celebrated the end of Chevron via Loper Bright because Chevron was to statutes what Wickard and Raich have been to what I only semi-jokingly call the “Everything-Is-Commerce” Clause.
- I am similarly celebrating the end of Humphrey's Executor via Slaughter.
So it may just be confirmation bias and/or pareidolia combined with circumstantial evidence, but it seems to me that the Court has been signaling a desire to overrule Wickard and the “substantial” “effect” “test,” if not at least Raich. For one, Chevron is analogous to Wickard (see above). But for another, there have also been a couple other developments over the years:
- In NFIB (2012), a majority of Justices, two of whom had been in the Raich majority, held that Congress cannot anticipate activity, pretty much in direct contradiction with Raich (drugs could/might cross State lines), and arguably even with Wickard. One of those flip-floppers, Justice Scalia, also notably wrote in his treatise with Bryan A. Garner, Reading Law (2012), that Humphrey and Wickard were both “willful judicial distortions,” the latter of which “expanded the Commerce Clause beyond all reason.”
- In both NFIB (regarding the Commerce Clause) and Loper Bright (2024) (regarding statutes), the Court re-emphasized that while courts may defer as to questions of fact, questions of law are strictly the province of courts, directly contrary to what the Court did in Raich (i.e. defer to Congress' declaration that a ban on possession is necessary and proper), and, again, arguably contrary to what the Court did in Wickard.
- In Sackett (2023), the Court eschewed a “‘similar[] situat[ion]’” statutory test espoused by Justice Kennedy in an earlier case that conspicuously resembled the aggregation in Wickard and subsequent cases as “vague.”
- In Dobbs (2022), which in-/famously overruled Roe, the Court likewise said in relevant part that Casey was unworkable because of its employment of the word substantial, which the Court noted “is often open to reasonable debate.”
- And in Slaughter (handed down June 29 of this year), the Court just dealt a serious blow to the notion of governmental reliance for stare decisis purposes. I'll just add a couple alterations to make the analogy more plain:
>Congress may well have relied on [Wickard and Raich] in taking more power for itself, but that is hardly one of the legitimate reliance interests that our precedents contemplate. No branch may rely on adverse possession to claim power that the Constitution vests elsewhere [such as in the several States or the People].
>The dissent contends that we ignore the reliance interests of ordinary Americans and regulated firms alike. Quite the contrary. In its valiant search for reliance interests, it is the dissent that somehow misses maybe the most important one: the reliance interests of the American people in the preservation of our constitutionally promised liberties. The diffusion of power carries with it a diffusion of accountability. When power is exercised well, the people know whom to thank; when power is exercised poorly, they know whom to blame—and whom to fire. That is the very premise of our system of government. We adhere to that system today not in spite of the reliance interests of all Americans but because of them.
Cf. Slaughter, slip op. at 24–25 (cleaned up).
So far as that last point goes, I saw this coming a mile away, since it was mentioned briefly in Lawrence (2003), then expounded upon slightly more in cases like Gant (2009) and Citizens United (2010), before further emphasis in Janus (2018) and then McGirt (2020) and Justice Gorsuch's opinion in Ramos (2020) (the latter of which is quoted in relevant part in Slaughter), and then the Court's opinion in Loper Bright (2024): the government can't rely on erroneous precedent at the expense of those whom it's supposed to benefit. As the Preamble emphasizes: “[T]he People . . . ordain[ed] and establish[ed] th[e] Constitution” “to secure the blessings of Liberty to [them]selves and [thei]r Posterity,” not to secure infinite power to the Government thereby constituted. And even further back in time, just a day shy of 250 years ago at this point, the Declaration of Independence stressed that “[g]overnments are instituted among men” “to secure” their “unalienable Rights” (“among the[m]” being “Liberty”), not to “reduce them under absolute Despotism.”
Suffice it to say, but this is a happy sestercentennial for me.