Victory of the blue pencil, and how broccoli trumped wheat

We read in contract law, especially in Virginia, that the parties have freedom of contract and the courts do not get to make new contracts for the parties. In some other states, in some kinds of cases, courts are allow to enforce contracts to the extent that they are reasonable. The figure of speech for this sort of judging is the blue pencil.

Chief Justice Roberts took the blue pencil to the Affordable Care Act this week, in the National Federation of Independent Business v. Sebelius. He whacked out some bits and rewrote others, upholding the "mandate" on what the ABA Journal has noted was the "Solicitor General's third backup argument" that barely made it into the argument or the briefs. The characterization of the mandate as a "tax" was what led the Fourth Circuit to bypass the merits in one of its earlier panel decisions, because of the Anti-Injunction Act, in Liberty University v. Geithner.

It has been reported this week that Chief Justice Roberts fashioned himself after Justice Robert Jackson, who is one of my favorites, too. (My favorite story about Justice Jackson is retold here.) Justice Jackson's most famous opinion, I suspect, was his opinion for the Court in Wickard v. Filburn, upholding the Agricultural Adjustment Act as a valid exercise of Congress's power to regulate interstate commerce. Wickard is referenced at least 25 times in the Affordable Care Act opinions. Wickard was a case about wheat growing. Chief Justice Roberts' opinion imposes a new limit on Wickard where common wisdom supposed there was none.

Chief Justice Roberts rejected the Affordable Care Act as a valid exercise of the Commerce Clause, buying into what Justice Ginsburg called the "broccoli horrible" - and so the broccoli references (I counted 12) are second only to the wheat references (25) in the several opinions. Putting Wickard and Sebelius together, I conclude that the Interstate Commerce Clause allows Congress to prohibit you from growing your own vegetables, but does not allow Congress to pass a law that would punish you for refusing to eat them.