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:
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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:
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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!
This comment doesn’t exactly apply to this post, but whatever. What I’d like to know is why Rehnquist and Thomas joined all but Part III of O’Connor’s dissent. What did they find so offensive about a quote from James Madison about the very limited scope of federal power, a summary of the dissent, and O’Connor’s personal opinion on medicinal marijuana?
Comment by Joel — June 6, 2005 @ 10:04 pm
On page 10 of Justice Scalia’s concurring opinion, he wrote:
“I thus agree with the Court that, however the class of regulated activities is subdivided, Congress could reasonably conclude that its objective of prohibiting marijuana from the interstate market could be undercut if those activities were excepted from its general scheme of regulation. See Lopez. That is sufficient to authorize the application of the CSA to respondents.”
“Could reasonably conclude” sounds like rational basis to me. What am I missing?
Comment by Mike — June 6, 2005 @ 10:30 pm
Joel, that’s an interesting question some of us have been musing. Go here for more details.
http://federalism.typepad.com/crime_federalism/2005/06/does_justice_th.html
[Tom, sorry to post a link, but I can’t get my post to format nicely here as a comment.]
Comment by Mike — June 6, 2005 @ 11:45 pm
Medical Marijuana
I don’t agree with Nathan Newman’s view that liberals should favor ending judicial review for constitutionality (except in the case of equal protection violations), but it is well worth checking out.
Comment by Colorado Luis — June 7, 2005 @ 9:14 am
Sirrine: Rational Basis For Upholding Raich
I have a post up over at Objective Justice that briefly describes the reasoning of the Court in the majority opinion. I don’t want to repeat that here, but I do want to ask the same questions here as I…
Comment by De Novo — June 8, 2005 @ 2:30 am
I’m a little late in commenting, but I just got the chance to read the entire post on your Legal Theory blog and couldn’t help but share some quick thoughts. From my early impressions of the case, I agree that it seems to make Lopez and Morrison pretty much a dead letter. Since Congress can reach the exact same activity that it could not in Lopez (possession) just by regulating a certain way, the majority’s test seems to turn what Lopez said was a limit on what Congress can regulate to a limit only on how Congress can regulate.
Also, I think your mention of the as-applied problem in the extended discussion on your Legal Theory blog is particularly important. In briefs and oral arguments neither side really addressed the fundamental question of as-applied challenges head on and none of the Raich opinions seem to either. It’s too bad, because I think the as-applied issue goes directly to the underlying tensions between Wickard and Lopez and, in glossing over the problem, none of the opinions explain or even acknowledge that Wickard and Lopez are not entirely consistent.
Comment by Alex Kreit — June 9, 2005 @ 1:39 pm