What Raich amounts to is a constitutional amendment: “State governments are irrelevant and exist at the pleasure of the Congress.” Raich might follow naturally from previous decisions, but that doesn’t change the fact that it also unmoors the federal government from any constraints. I don’t know if this is the death of liberty, but it is most certainly the death of local government.

I predict that on remand, the Ninth Circuit will rule for the Plaintiffs on their substantive due process claim, and that decision will be affirmed in the Supreme Court.

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…

In a 6-3 decision the Supreme Court today ruled in favor of the federal government in Gonzales v. Raich, opening the door for federal prosecution of medical marijuana patients. The majority’s opinion was based upon the despicable Wickard v. Filburn…

In Lopez, the majority stated:

“The Government admits, under its ‘costs of crime’ reasoning, that Congress could regulate not only all violent crime, but all activities that might lead to violent crime, regardless of how tenuously they relate to interstate commerce. Similarly, under the Government’s ‘national productivity’ reasoning, Congress could regulate any activity that it found was related to the economic productivity of individual citizens: family law (including marriage, divorce, and child custody), for example. Under the theories that the Government presents in support of §922(q), it is difficult to perceive any limitation on federal power, even in areas such as criminal law enforcement or education where States historically have been sovereign. Thus, if we were to accept the Government’s arguments, we are hard pressed to posit any activity by an individual that Congress is without power to regulate.” (citation omitted)

Because our national economy is so large and complex, any non-economic activity will have a substantial economic impact on I/C through national productivity reasoning. The example I always think of (although not quite on point) is the estimates that come out every year saying that the NCAA men’s college basketball pools that are common in offices around the country have a negative effect in the millions of dollars on the economy.

Thus, if the federal government can come up with any other accumulated economic effect from a regulated activity, the statute will be upheld.

To some extent I think it a bit dishonest for the liberals who stuck to their commerce clause guns on this one (even where they found the DEA policy wrongheaded) to now be suggesting that Scalia be taken at face value; its a convenient time to decide that is an option. I can hardly imagine that if a future democratic congress were to imbed in a “larger economic regulatory scheme” laws affecting education or marriage or other “traditional state function” in ways that were noxious to Scalia’s sensibilities that he would find himself on the same side of the split he does here. Appreciate his opportunism for what it is.

Water is sold in interstate commerce.

Does this give the Congress the power to legislate all uses of water in America.

For instance it may be used for brushing your teeth but not be used after flossing? It may be used for one minute showers but not baths? If Congress so decides? You can drink it out of a tap (which is paid for) but not from a stream for which no price has been paid?

Slam dunk for sure.