“Understanding” Gonzalez v. Raich
Lewis Carroll referred comically to “Anglo-Saxon attitudes,” and for a while I thought we might regard the Supreme Court’s federalism decisions as reflecting, not so much a coherent doctrine, but an attitude toward federalism — a general lack of sympathy for claims of expansive national power, which lack could be overcome by something enough justices found sufficiently important. (Those aren’t intended to be doctrinal terms, just ordinary, conversational descriptions.)
The alternative, which I suppose is getting increasingly plausible, is that the Court doesn’t even have an attitude about federalism. What it has are, well, results. There’s Lopez and Morrison, and then there are Reno v. Condon, Guillen County, Raich, and the preemption cases.
I suppose that someone truly dedicated to making doctrinal sense of the cases — or someone who had to do so as a matter of professional obligation — could come up with something that worked. But a more parsimonious account, I suspect, would be that there are some statutes five or more justices (actually, one justice — see the final paragrpah of this post) think are more or less good ideas, and others that five or more justices think are more or less bad ideas; and that those justices will go to any (purportedly doctrinal) port in a storm to reach the results they think sensible.
One way to ask the question that results is this: Is there any statute now on the books that you would confidently say is unconstitutional on federalism grounds if you didn’t have a professional interest in or personal preference for invalidating the statute? And, if so, is the source of your confidence your understanding of federalism doctrine, or your sense of the (non-federalism related) policy preferences of five or more justices?
On a more mundane level, I suppose that the “possession of pornography” cases rattling around in the lower courts are now clearly resolved in favor of the government.
And, on a fancier level, I suppose one ought to note the artificiality of writing about “the Court” in this context. Does anyone doubt that four justices would overrule Lopez and Morrison in a second if Justice Kennedy came to them and said, “I can’t distinguish this case from Lopez and Morrison, but I don’t want to strike it down. We tried this for a decade and it didn’t work. Let’s just give up”?
Why doesn’t the Lopez majority’s reference to economic activity offer a way of making sense of these decisions at a doctrinal level? Growing marijuana is, after all, production of a potential commodity, which can’t be said of violence against women or carrying a gun near a school.
As for the possession of pornography cases, isn’t there a First Amendment angle there that’s lacking here? Stanley v. Georgia, and so forth?
Comment by Leighton Moore — June 6, 2005 @ 3:14 pm
On Raich: “On a more mundane level, I suppose that the “possession of pornography” cases rattling around in the lower courts are now clearly resolved in favor of the government.”
On Raich: “On a more mundane level, I suppose that the “possession of pornography” cases rattling around in the lower courts are now clearly resolved in favor of the government.”
Comment by Dummocrats.com — June 6, 2005 @ 3:20 pm
Mr. Moore, the p*rnography cases of which Prof. Tushnet speaks concern homemade child p*rnography, and thus there wouldn’t be any First Amendment issue.
United States v. Maxwell and United States v. Smith are two important Commerce Clause decisions from the Eleventh Circuit Court of Appeals. In both cases, the defendants produced their p*rnographic images INTRAstate but used materials that travelled INTERstate (re: diskettes). The Eleventh Circuit held that Congress could not reach this conduct because it was non-economic (no money exchanged hands for the photos) and that the fact that the images were stored on articles of interstate commerce was an insufficient nexus to interstate commerce.
In Maxwell a unanimous three-judge panel held that 18 U.S.C. 2252A(a)(5)(B), which makes it a federal crime to posses child p*rnography on materials that traveled in interstate commerce, was an invalid exercise of Congress’ commerce power. Judge Tjoflat wrote for the panel that since Maxwell’s possession of the pornographic images was non-commercial, it would not apply Wickard v. Filburn’s aggregation principle. Slip op. at 37 (“We believe this aggregate approach cannot be applied to intrastate criminal activity of a non-economic nature.”)
In Smith, another Tjoflat opinion, a unanimous three-judge panel of the Eleventh Circuit, applying plain error review, reversed another conviction obtained under Sec. 2252A(a)(5)(B). Maxwell and Smith exasperated a circuit split concerning Congress’ power to criminalize the intrastate creation and possession of child pornography.
Another important case testing the limits of Congress’ commerce power is United States v. Stewart. In Stewart, a 2-1 panel of the Ninth Circuit, per Judge Kozinski, held that Congress could criminalize the possession of homemade machine guns. The defendant in Stewart used parts that traveled in interstate commerce to convert his semi-automatic rifle with the capability to fire automatically, i.e., Stewart’s rifle would fire repeatedly without his having to continually pull the trigger.
The government has requested that all three petitions for a writ of certiorari be held and then disposed of in light of Ashcroft v. Raich.
Post-Raich, it’s unlikely that Maxwell, Smith, or Stewart will stand. All three cases, like Raich, involve the intrastate production or possession of materials for which there is a national market (machine guns and child pornography). The Court will likely GVR (grant cert., vacate the judgment, and remand for reconsideration) these cases. But it’s worth keeping an eye on them.
Comment by Mike — June 6, 2005 @ 3:54 pm
The Medical Marijuana Case
Supreme Court holds
Comment by ProfessorBainbridge.com — June 6, 2005 @ 3:55 pm
Thanks, Mike. I’ll check those cases out.
Comment by Leighton Moore — June 6, 2005 @ 4:50 pm
Drug busts authorized; world ends
Have had a chance to browse some of the reaction and analysis to Raich. Much of the outrage seems not to be tethered to legitimate constitutional arguments. One that has some heft comes from Mr. Justice Thomas’ dissent: If Congress can regulate this un…
Comment by New World Man - things I know, things I wonder, things I'd like to say — June 6, 2005 @ 5:32 pm
Creeping Impotence
According to Reuters SCOTUS has closed the “compassionate” loophole created by California to allow medical patients to grow marijuana to alleviate pain. Verity at SA (with comments) has a useful synopsis of the issues involved in Gonzales v…
Comment by thinking toward ourselves — June 6, 2005 @ 10:14 pm
I’m not so sure about the reversal of the child pornography cases. The issue concerning 18 U.S.C. 2252A(a)(5)(B) wasn’t one of cogressional authority, but the problematic definition of “person” within the statute?
Comment by sebastianguy99 — July 4, 2005 @ 10:38 pm