Wickard and rational basis deference

[Mary Dudziak]

The line in Jackson's memo to the conference calling for reargument in 
Wickard is:  "if a completely baffled mind can be called an open one, mine is."

This doesn't really get to Mitch's point, but in my view the real key to 
Wickard is the speech given by Secretary of Agriculture Wickard, which 
helped lead to farmer Filburn's confusion about the rules:  "Wheat Farmers 
and the Battle for Democracy."  England was a wheat importing country and 
U-boats were patrolling the waters.  Churchill & FDR were involved in wheat 
talks.  Farm products, including wheat, were seen as crucial to the war 
effort.  So....it seems not so surprising that such a federalism rollback 
happens in a case like Wickard, which turns out to be a case about national 
security.

Mary Dudziak

At 03:15 PM 2/20/2006, Mark Tushnet wrote:
>My recollection may be wrong, but IIRC, Wickard was reargued because 
>Jackson couldn't convince himself that there was indeed enough evidence -- 
>anywhere (that is, in the trial record or in the congressional record) -- 
>to justify an independent conclusion that there was a sufficient effect on 
>interstate commerce.  Again IIRC he floated the idea of a remand to the 
>trial court to see if such evidence could be supplied, but that was shot 
>down.  Given the sequence, I think the natural interpretation of his 
>phrasing is the deferential review interpretation.  And FWIW, 
>syntactically, my sense of "considered that" is different from Mitch's; it 
>seems to me an awkward substitute for "treated as a reason," although I'd 
>like to know more about usage in the 1940s, and about Jackson's habits of 
>usage, before coming to a firm conclusion.
>
>Mitch Berman wrote:
>>I have always understood Wickard as the locus classicus not only for the 
>>aggregation test but for rational basis deference to a congressional 
>>determination that the regulated activity in the aggregate has the 
>>requisite effect on interstate commerce.  And that always struck me as 
>>the right reading of the case.  On a recent rereading, however, it was 
>>much less clear to me that Wickard does in fact establish rational basis 
>>deference.  After all, the Court does not treat the question of whether 
>>home-grown wheat, in the aggregate, substantially affects interstate 
>>commerce as a debatable one, thus warranting deference to Congress's 
>>reasonable, albeit contestable, affirmative conclusion.  To the contrary, 
>>it asserts that "it can hardly be denied that a factor of such volume and 
>>variability as home-consumed wheat would have a substantial influence on 
>>price and market conditions."  So even were the Court intending to 
>>announce a rule of deference, this is not a case in which deference would 
>>be needed.
>>
>>My recollection is that the common view that Wickard does nonetheless 
>>announce a rule of deference rests mostly or entirely on the following 
>>passage:  "This record leaves us in no doubt that Congress may properly 
>>have considered that wheat consumed on the farm where grown if wholly 
>>outside the scheme of regulation would have a substantial effect in 
>>defeating and obstructing its purpose to stimulate trade therein at 
>>increased prices."
>>Now, that passage would support a rule of rational basis deference, it 
>>seems to me, if the phrase "may properly have considered that" means 
>>something like "may rationally (or reasonably) have thought that".  But 
>>that's not the only interpretation nor even, I think, the most 
>>natural.  Mightn't the phrase mean "may have taken into consideration 
>>that"?  Put another way, "considered" doesn't mean "concluded" or 
>>"believed"; it means "treated as a consideration or as a reason."  On 
>>this view, the Court might be suggesting, not that courts should defer to 
>>a congressional judgment regarding what the economic effects of the 
>>activity in question are, but that (assuming courts do agree about the 
>>economic effect) they should defer to a congressional judgment that those 
>>effects warrant federal legislation.  The deference extends, not to the 
>>finding of a fact, but to the legislative judgment that the fact, once 
>>found, warrants action.
>>
>>So, is Wickard best interpreted as setting forth a rule of deference with 
>>respect to the effects question?  Am I overlooking other relevant 
>>material in the opinion?  I'd be grateful for any guidance or 
>>reactions.  Oh, and let me make clear, that this is really a matter of 
>>curiosity.  I do not mean to suggest that the propriety, or not, of 
>>rational basis deference to a congressional substantial-effects 
>>determination should turn on the correct reading of Wickard.
>>
>>
>>Thanks in advance,
>>
>>Mitch Berman
>>The University of Texas
>>
>>
>>
>>
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>
>--
>Mark Tushnet
>Georgetown University Law Center
>600 New Jersey Ave. NW
>Washington, DC 20001
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>202-662-9497 (fax)
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