Comments on: Implications for the New Federalism http://www.scotusblog.com/wp/implications-for-the-new-federalism/ The Supreme Court of the United States blog Thu, 26 Jun 2008 21:56:34 -0700 http://wordpress.org/?v=2.8.5 hourly 1 By: Alex Kreit http://www.scotusblog.com/wp/implications-for-the-new-federalism/comment-page-1/#comment-7180 Alex Kreit Thu, 09 Jun 2005 17:39:50 +0000 http://www.scotusblog.com/wp/uncategorized/implications-for-the-new-federalism/#comment-7180 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. 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.

]]> By: De Novo http://www.scotusblog.com/wp/implications-for-the-new-federalism/comment-page-1/#comment-7182 De Novo Wed, 08 Jun 2005 06:30:04 +0000 http://www.scotusblog.com/wp/uncategorized/implications-for-the-new-federalism/#comment-7182 <strong>Sirrine: Rational Basis For Upholding Raich</strong> 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... 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…

]]> By: Colorado Luis http://www.scotusblog.com/wp/implications-for-the-new-federalism/comment-page-1/#comment-7181 Colorado Luis Tue, 07 Jun 2005 13:14:06 +0000 http://www.scotusblog.com/wp/uncategorized/implications-for-the-new-federalism/#comment-7181 <strong>Medical Marijuana</strong> 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. 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.

]]> By: Mike http://www.scotusblog.com/wp/implications-for-the-new-federalism/comment-page-1/#comment-7179 Mike Tue, 07 Jun 2005 03:45:38 +0000 http://www.scotusblog.com/wp/uncategorized/implications-for-the-new-federalism/#comment-7179 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.] 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.]

]]> By: Mike http://www.scotusblog.com/wp/implications-for-the-new-federalism/comment-page-1/#comment-7178 Mike Tue, 07 Jun 2005 02:30:03 +0000 http://www.scotusblog.com/wp/uncategorized/implications-for-the-new-federalism/#comment-7178 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? 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?

]]> By: Joel http://www.scotusblog.com/wp/implications-for-the-new-federalism/comment-page-1/#comment-7177 Joel Tue, 07 Jun 2005 02:04:07 +0000 http://www.scotusblog.com/wp/uncategorized/implications-for-the-new-federalism/#comment-7177 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? 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?

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