Comments on: The Rehnquist Court and Symbolic Federalism:

By: A Copyfighter's Musings

A Copyfighter's Musings — Wed, 08 Jun 2005 06:13:45 +0000

Eldred in Light of Raich

The Supreme Court delivered its decision in Gonzales v.

By: Hans Bader

Hans Bader — Tue, 07 Jun 2005 13:52:57 +0000

I don’t buy the Court’s argument that the CSA provision banning simple possession of pot is an essential part of a larger regulation of the pot trade, given that a separate, unchallenged provision of the CSA already banned possession with intent to distribute. Moreover, as one of the attorneys for the prevailing respondent in U.S. v. Morrison (2000), I find that case indistinguishable, since the conduct regulated by that statute — gender violence — was also part of a larger class of activity that affects commerce (a rape in the workplace or rental housing is a hostile work or housing environment almost per se). Finally, it is deeply ironic that the Court was willing to defer to a respectable minority of the medical profession in finding that partial birth abortion was necessary, and thus protected, in Stenberg v. Carhart, yet was unwilling to defer to a respectable, and substantial, minority of the medical profession as to the usefulness of medical pot in the Raich case. Deference to medical judgments should surely be at least as great when they involve preserving life (as in Raich) as when they involve taking life (as in Carhart).

By: Calblog

Calblog — Mon, 06 Jun 2005 23:51:56 +0000

Ashcroft v. Raich – The Supreme Court on Federalism

After trekking through the 9th Circuit, the long awaited decision in Ashcroft v. Raich is finally here. (Along with a concurrence and a dissent or two). Larry Solumn provides a good summary of the arguments here. As is usually the…

By: The Volokh Conspiracy

The Volokh Conspiracy — Mon, 06 Jun 2005 22:41:47 +0000

The Rehnquist Court and the Mathematics of Federalism:

Ernie Young’s post at SCOTUSBlog raises a good point: while commentators tend to refer to “the Court” as a single entity, the Supreme Court consists of nine peo…

By: Sean

Sean — Mon, 06 Jun 2005 20:33:12 +0000

I think the most shocking thing about this case is that at least three Justices are/were willing to use Lopez/Morrison as something more than outlying cases, undercutting (if not overturning) some very venerable commerce clause jurisprudence. Probably four, as I believe Scalia’s “this doesn’t undermine Lopez/Morrison” concurrence in the judgment was probably written more to lay groundwork for expanding them in the future more than it was to voice his agreement with the majority.

I had always thought at most two Justices held this view. It really shocked me to see Rehnquist and O’C dissent here.

By: Sam

Sam — Mon, 06 Jun 2005 19:24:19 +0000

I always thought of Board of Trustees v. Garrett as a major federalism case, and that was decided after Bush v. Gore. And I guarantee you that the states will win federalism cases in the future. (It wasn’t that long ago that people were surprised by the results in Hibbs and Lane.)

By: Huggy

Huggy — Mon, 06 Jun 2005 19:18:07 +0000

From the view point of SCOTUS and Congress and the executive branch this had to be decided this way. This is part of their main meal tickets. Their primary rent receipts. Very few men, fewer organizations, and no really large organizations has ever had the …discipline? courage? trust?… to let go of this type power.

Letting a State have a completely internal item of any consequence can’t be allowed. This is arguably a good thing.

By: Ted

Ted — Mon, 06 Jun 2005 18:37:45 +0000

I think the “Symbolic Federalism” thesis is about right…

And I think the structure of the New Federalism jurisprudence lends itself to that sort decisionmaking.

At bottom, the disputes get down to: what counts as economic activity?

In Morrison, the majority says “obviously, this isn’t economic activity.” Here, the majority says “obviously, this is economic activity.” The dissent says “obviously, it isn’t.”

Is there any non-arbitrary way to settle these disputes? Are they simply looking at it and making some naive, unprincipled (outcome-based) judgment on what counts as economic activity and what doesn’t?

By: Will Baude

Will Baude — Mon, 06 Jun 2005 18:24:10 +0000

I like the “Symbolic Federalism” thesis (c.f. Seminole Tribe and Ex Parte Young) but what about Printz and the anti-commandeering cases? I guess those were symbolic by their very nature, but are they really of no practical significance?

By: The Volokh Conspiracy

The Volokh Conspiracy — Mon, 06 Jun 2005 18:21:16 +0000

The Rehnquist Court and Symbolic Federalism:

In response to my earlier post, Tom Goldstein writes:

I agree with Orin’s comment . . . that Raich on one level seems unremarkab…