On TNR.com, Jeff Rosen has a thoughtful response to the criticism engendered by his New Republic magazine essay on Chief Justice Roberts. I just wish to offer five points in response:
- Rosen inaccurately claims that, in the Raich case, I asked the Court to reverse Wickard v. Filburn. To the contrary, throughout that litigation, in our briefs and my oral argument, we distinguished Wickard, knowing full well that the success of the lawsuit depended on not reversing Wickard. As we stated in our brief, “Wickard differs substantially from this case. Properly understood, it supports a decision for Respondents.” First, we contended that the Agricultural Adjustment Act upheld in Wickard applied to commercial farms above a certain size, unlike the Controlled Substances Act which was being applied to backyard marijuana grown for personal consumption. Second, we contended that the opinion in Wickard did not turn on the “home consumption” of wheat by the farmer’s family (as the case is often taught), which the Court noted varied little and was small in quantity, but of the marketing of wheat as meat, i.e. feeding it to livestock and then sending the livestock into commerce. “Consumed on the farm” referred mainly to wheat consumed as feed for livestock. While devoting pages to this argument, in a single sentence we did ask that Wickard be reconsidered “if the Court were to conclude that Wickard is controlling” (i.e. if it rejected our distinctions), but this is an obligatory request never mentioned in oral argument. It was never part of our objective in Raich. Sadly, our attempt to distinguish Wickard, although largely adopted by Justice O’Connor in her dissent, was rejected by the Court. (I have asked Jeff for a correction, which I assume will be forthcoming and will update this post when it occurs).
- Rosen accuses me of “soft-peddling” our arguments in the ACA challenge, but in this case we are making the arguments we are making, and not making the arguments we are not making. There is no soft-peddling. That I hold other views, such as a commitment to originalism, that are not being put forward in this challenge is irrelevant to the merits of the arguments we are making in court (as they were in Raich). If the Court accepts the arguments we are making it will entail no acceptance of other positions I may hold that are not being advanced in the case. But the case will stand for the proposition that there are are judicially-enforceable limits on the enumerated powers of Congress, which I believe there must be — a proposition that Chief Justice Rehnquist reaffirmed in his majority opinion in Lopez.
- Rosen does not respond to the claim that he had criticized the Rehnquist Court’s New Federalism decisions, including Lopez and Morrison, as “conservative judicial activism.” Does he now think those cases were rightly decided? They were 5-4 decisions, as was Printz.
- As others here have noted here, one cannot avoid 5-4 decisions in federalism cases as long as a block of 4 justices refuse to find any judicially-enforced limits on the enumerated powers of Congress. In his post, Rosen contends that “Congress cannot use its commerce power to regulate activity that has no substantial effects on interstate commerce and where there are no collective action problems that make it impossible for the states to act on their own.” To date, none of these 4 has adopted Rosen’s purported limits, but Justices Sotomayor and Kagan have not yet opined on the scope of the Commerce Clause. Perhaps they will break with the position of Justice Stevens and Souter bringing to 7 the number of justices willing to find judicially-enforceable limits on the Commerce Power of Congress.
- But even if they do, there will still not be 5 votes for Rosen’s proposed limiting principles. The “substantial effects” issue is now dealt with by rational basis review. Under Lopez and Morrison, Congress gets to decide whether economic activity in the aggregate has a substantial affect on interstate commerce. Does he advocate heightened judicial scrutiny of this issue? That would require the rejection of more deferential precedent, as affirmed in Raich. (By the way, in Raich, we also did not contest this deference on the issue of “substantial effects.” Instead we argued that our clients were not engaged in “economic” activity.) And Rosen’s second proposed limit (“there are no collective action problems that make it impossible for the states to act on their own”) would face similar problems: the Court would defer to Congress on this question and, were they to do otherwise, the justices would be accused, if not by Rosen then by many others, of engaging in conservative judicial activism.