Whatever one's opinion of Donald Trump, his tweets or his legislative accomplishments to date, he has…
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Stat of the Day: Trump & McConnell Quickly Reshaping Judiciary

Whatever one's opinion of Donald Trump, his tweets or his legislative accomplishments to date, he has unmistakably achieved great progress on the issue perhaps foremost among his supporters' minds.  Along with Senate Majority Leader Mitch McConnell (R - Kentucky), whose efforts began while Barack Obama was still president after Justice Antonin Scalia's passing, Trump is already reshaping the nation's judicial branch, as The Wall Street Journal's Kimberly Strassel details:

. Mr. Trump has now nominated nearly 60 judges, filling more vacancies than Barack Obama did in his entire first year.  There are another 160 court openings, allowing Mr. Trump to flip or further consolidate conservative majorities on the circuit courts that have the final say on 99% of federal legal disputes…[more]

October 13, 2017 • 11:43 am

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Jester's CourtroomLegal tales stranger than stranger than fiction: Ridiculous and sometimes funny lawsuits plaguing our courts.
Wicked Wickard v. Filburn Does Not Immunize ObamaCare Print
By Timothy H. Lee
Thursday, November 17 2011
Wickard does not stand for the proposition that the federal government can force every American citizen to involuntarily engage in commercial activity.

If the 1942 decision Wickard v. Filburn doesn’t ring a bell, that’s certainly understandable. 

Even informed adults at the time were preoccupied by slightly more immediate threats to life, liberty and the pursuit of happiness than Wickard

Nevertheless, it’s poetically appropriate that “Wickard” rhymes with “wicked,” with no personal offense intended toward the late Secretary of Agriculture Claude R. Wickard or his heirs.  The ruling bearing his name simply ranks high in the pantheon of regrettable and destructive decisions in United States Supreme Court history.  Moreover, Wickard is a name that will become familiar in ensuing months, as the Supreme Court considers ObamaCare in a case whose impact will reverberate far beyond the issue of healthcare, and far into future American decades. 

First, a primer on Wickard and its malignant legacy. 

Roscoe Filburn was a small farmer in Montgomery County, Ohio, who maintained dairy cattle, raised poultry and sold milk and eggs.  As part of his operation, Mr. Filburn raised a “small acreage of winter wheat” for purposes of feeding his poultry and livestock, making flour for home consumption and occasionally for sale.  Meanwhile, as part of FDR’s New Deal in 1938, the federal government passed the Agricultural Adjustment Act, which among other provisions set quotas on wheat growers in order to artificially dictate wheat prices.  The law further empowered the Secretary of Agriculture to dictate each year a national acreage allotment for upcoming wheat crops, which were then apportioned by state, county and eventually individual farm. 

We have since become all too familiar with the toxic failure of government price controls, and that sort of bureaucratic micromanagement perpetuated the Depression instead of ending it, but that’s another matter. 

The Agriculture Department told Mr. Filburn that he could grow precisely 11.1 acres of wheat for 1941, but he instead sowed 23 acres for his own on-farm use.  For this, Mr. Filburn was charged with “marketing excess” and ordered to destroy his crops and pay a fine.  Mr. Filburn rightly claimed that his crop did not constitute “interstate commerce” because it was for his own use, and therefore did not even enter the stream of intra-state commerce, let alone inter-state commerce. 

An unsympathetic Supreme Court, almost identical in personnel to the one that approved the racist internment of Japanese-Americans in Korematsu v. United States two years later, held against the hapless Mr. Filburn.  According to the Court, the wheat that he grew for home consumption, if extended to the hypothetical aggregate, could have a “cumulative effect” on wheat demand on the interstate commodity market and therefore rose to the level of “interstate commerce.” 

From that point forward, Congress considered itself essentially untethered from the Constitution’s Commerce Clause of Article I, Section 8, which specifically limited federal authority, “To regulate Commerce with foreign Nations, and among the several States, and with the Indian tribes.”  Recall former Speaker of the House Nancy Pelosi’s bewildered, “Are you serious?” response, when asked to cite Constitutional authority for ObamaCare. 

But some limits did remain.  In the past two decades, the Supreme Court reasserted some limits, including a 1990s decision overturning a Congressional firearm law weakly justified on “interstate commerce” grounds.  Moreover, Congress heretofore had at least not claimed authority under Wickard to compel involuntary commercial activity where none existed. 

That is, until ObamaCare. 

Today, proponents of ObamaCare and its “individual mandate” compelling every living citizen to proactively engage in commercial activity claim authority under Wickard.  In last week’s indefensible D.C. Court of Appeals decision upholding ObamaCare, Judge Laurence Silberman explicitly stated, “We think the closest Supreme Court precedent to our case is Wickard.” 

Judge Silberman added that, “the logic of the opinion would apply to force any farmer, no matter how small, into buying wheat in the open market.”  He also offered possession of drugs or child pornography as analogous valid prohibitions. 

But those examples are manifestly dissimilar, and it’s frankly alarming that Judge Silberman descended into such illogic for so important a case. 

First, at issue in Wickard wasn’t a federal law forcing farmers “into buying wheat on the open market.”  Rather, the issue was a penalty for voluntarily exceeding a wheat harvesting limit.  A farmer could avoid that penalty altogether by choosing to not exceed the limit, to not grow any wheat at all or to not farm in the first place.  Similarly, a person can avoid child pornography and drug possession laws by not possessing child pornography or illegal drugs. 

Accordingly, Wickard does not stand for the proposition that the federal government can force every American citizen to involuntarily engage in commercial activity.  It simply, albeit illogically, stands for the proposition that voluntary activity can be expansively aggregated to amount to “interstate commerce.” 

If we’re extremely fortunate, the Court will at long last overturn Wickard this term.  Absent that, however, it must at least recognize that the decision does not justify ObamaCare. 

Question of the Week   
Which one of the following states was the first in the country to name a “Tweeter Laureate”?
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Quote of the Day   
 
"Before the Obama administration approved a controversial deal in 2010 giving Moscow control of a large swath of American uranium, the FBI had gathered substantial evidence that Russian nuclear industry officials were engaged in bribery, kickbacks, extortion and money laundering designed to grow Vladimir Putin's atomic energy business inside the United States, according to government documents and…[more]
 
 
—John Solomon and Alison Spann, The Hill
— John Solomon and Alison Spann, The Hill
 
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