Posted Mon, June 6th, 2005 8:51 pm
Implications for the New Federalism
(This is an excerpt from a much longer post over on Legal Theory Blog.)
What are the implications of all of this for the New Federalism? Justice O’Connor suggests in her dissenting opinion that Raich is the death knell for the Lopez and Morrison as significant constraints on Congress’s power. Here is how she put it:
-
Seizing upon our language in Lopez that the statute prohibiting gun
possession in school zones was “not an essential part of a larger
regulation of economic activity, in which the regulatory scheme could
be undercut unless the intrastate activity were regulated,” 514 U.S.,
at 561, the Court appears to reason that the placement of local activity in a comprehensive scheme confirms that it is essential to that scheme. Ante, at 21?22. If the Court is right, then Lopez stands for nothing more than a drafting guide: Congress should have described the relevant crime as “transfer or possession of a firearm anywhere in the nation” thus including commercial and noncommercial activity, and clearly encompassing some activity with assuredly substantial effect on interstate commerce. Had it done so, the majority hints, we would have sustained its authority to regulate possession of firearms in school zones.
Is Justice O’Connor right? Justice Stevens did not answer her charge directly, and that is quite revealing! Justice Scalia did respond in his concurrence:
-
Today’s principal dissent objects that, by permitting Congress to
regulate activities necessary to effective interstate regulation, the
Court reduces Lopez and Morrison to “little more than a drafting
guide.” Post, at 5 (opinion of O’CONNOR, J.). I think that criticism
unjustified. Unlike the power to regulate activities that have a
substantial effect on interstate commerce, the power to enact laws
enabling effective regulation of interstate commerce can only be
exercised in conjunction with congressional regulation of an
interstate market, and it extends only to those measures necessary to
make the interstate regulation effective.
But this passage begs the crucial question – which concerns the standard of review. If the government were required to make a real showing that the regulation of wholly interstate noneconomic activity was “essential,” then Scalia would be right. Scalia would surely be right if the government had to carry this issue by a “preponderance of the evidence.” But under the majority approach, all the government needs to do is suggest a “rational basis.” It is very revealing that the word “rational” appears zero times in Justice Scalia’s opinion. Let me repeat that. It is very revealing that the word “rational” appears zero times in Justice Scalia’s opinion. Do a search yourself if you doubt me!
