Academic journal article William and Mary Law Review

Wickard through an Antitrust Lens

Academic journal article William and Mary Law Review

Wickard through an Antitrust Lens

Article excerpt

TABLE OF CONTENTS  INTRODUCTION                                                       1336   I. WICKARD AND THE SHERMAN ACT: THE DOMINANT JUDICIAL NARRATIVE  1338  II. THE COMMERCE POWER BEFORE WICKARD?                            1344 III. THE SHERMAN ACT AS AN EXPRESSION OF THE COURT'S COMMERCE      CLAUSE JURISPRUDENCE                                          1355  IV. WICKARD AND THE SUBSTANTIAL EFFECTS TEST                      1369   V. FLIPPING THE SCRIPT: WHAT WICKARD MIGHT HAVE LEARNED          1375  VI. A PARTIAL REHABILITATION OF WICKARD                           1391 

INTRODUCTION

Discussions of antitrust and the Constitution generally focus on how the latter informs or controls the former. This is not surprising; antitrust regulation is a creature of statute, (1) and a vague statute susceptible to flexible interpretations. Moreover, the Constitution is the paramount law, and statutory regimes must yield to it and not the other way around. (2) No court ever says: we are construing the relevant constitutional provision so as to be consistent with the statute before us. So it should be no surprise that scholars have identified various ways in which constitutional doctrines or considerations have influenced and informed the ever-evolving jurisprudence that implements the Sherman Act's unchanged text.

The Court's jurisprudence regarding the reach of the Sherman Act vis-a-vis local conduct exemplifies such one-sided interaction between Constitution and statute. Initially, and famously, the Court read the Act in light of the Court's Commerce Clause precedents, holding that the Act did not reach a merger to monopoly because such intrastate activity only impacted interstate commerce "indirectly." (3) The Court continued to invoke and apply the "direct/indirect" formula in the Sherman Act context into the mid-1980s. (4) Of course, the Court adjusted its Commerce Clause jurisprudence during the New Deal, vastly expanding the scope of congressional power vis-a-vis purely local conduct. Most notably, in Wickard u. Filburn, the Court held that Congress could reach any conduct that produced "a substantial economic effect on interstate commerce," (5) even if that effect was indirect within the meaning of prior Commerce Clause caselaw. Just six years later, and almost as if on cue, the Court imported the substantial effects test from Wickard into its antitrust federalism jurisprudence. (6) In so doing, the Court repudiated five decades of contrary precedent, despite the absence of any statutory change. Since that time, the Court has repeatedly applied the Act to local conduct producing purely intrastate harms, so long as such conduct produced the requisite substantial effect. (7) In some such cases the Court invoked Wickard in support of this approach. (8) The Court also claimed that developments in the nation's economy justified the vast expansion of the commerce power--and the correlative expansion of the scope of the Sherman Act. (9)

This Article offers what one might call an alternative history of the relationship between Wickard v. Filburn and the Sherman Act. Thus, the Article "flips the script" and asks what would have happened if Wickard had looked to Sherman Act precedents for guidance and not vice-versa. While counter-intuitive at first, such an inquiry sheds important and surprising light upon the massive constitutional (and, under the Sherman Act, statutory) change that Wickard wrought. In particular, the Court's pre- Wickard experience with application of the direct/indirect test in the antitrust context contradicts and/or undermines several assumptions that purportedly drove Wickard's decision to repudiate the direct/indirect standard and replace it with the far more generous (to Congress) substantial effects test. Moreover, and ironically, a thorough understanding of the Court's pre-New Deal antitrust federalism decisions helps generate a more enduring and plausible rationale for the result in Wickard, a rationale that does no violence to the constitutional order that Wickard inherited. …

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