Raich Was an Easy Case
First, thanks to this site’s hosts for inviting me to participate.
I’m struck by this quote from David Bernstein’s post over at Volokh:
I predicted the outcome of this case (and think it’s remarkable and a testament to his talents that co-blogger Randy got Rehnquist and O’Connor to vote in favor of his clients) on the theory that wavering Justices such as Kennedy, who voted with the majority, would be affected by political trends apparent in the United States. When Kennedy voted with the majority in Lopez, congressional Republicans were making serious (albeit hamhanded) efforts to limit the federal government, and their rhetoric was even more strongly devolutionary. A decade later, the Republican Congress is vying with the Democratic Congresses of the 1930’s and 1960’s as the biggest supporter of increased federal power in American history. Scalia’s vote was also likely affected by the sense that the Court should not expend political capital, especially with new Republican nominees soon to be voted on, on trying to limit federal power without any support from the political branches.
Although there’s a lot I agree with or find interesting in David’s post, I have to object to the implicit suggestion that Justices Kennedy and Scalia are just following broader political trends, which David suggests were very devolutionary in 1995 and much more nationalistic now. Without denying that courts (including the Supreme Court) are strongly influenced by broader trends in the political culture, I don’t think the explanation fits here. Rhetoric aside, I don’t think there was *ever* a majority — not in 1995, and not now; not in the Court, and not in Congress — for a massive shift in the federal-state balance that existed in the period immediately prior to Lopez. There are too many issues for which social and business conservatives like federal power, and libertarians like Randy and David are, and always have been, a relatively small faction within the conservative movement (though a faction whose ideas — which are often really interesting, provocative, and persuasive — have been cherry picked by other conservatives).
Though lots of people, on both left and right, read Lopez at the time to herald a massive shift in the federal-state balance, another reading was always plausible (and I always thought more plausible): The Court majority just wanted to assert that there was *some* limit on federal power. And it was Justice Kennedy who told us, way back in 1995, in his concurrences in Lopez and Term Limits, that he certainly didn’t read Lopez as portending a massive shift. So I actually think Justice Kennedy’s been quite consistent.
As for Justice Scalia, I’m sure this is the first time he’s been accused of having his vote affected by the sense that the Court should not expend political capital! More seriously, why not just take at face value what he says in his concurrence? This is really an uncommonly easy Commerce Clause case (which does, indeed, make it a testament to Randy’s talents that he was able to persuade the Chief Justice, Justice O’Connor, and Justice Thomas to come over to his side). Marijuana’s a good in which there’s extensive interstate commerce. It’s sold in consensual transactions, so it’s hard to enforce the prohibition on the commerce without prohibiting possession. It doesn’t take a rocket scientist to see that if people can possess marijuana that hasn’t crossed state lines if it’s for medicinal purposes, that makes the prohibition yet harder to enforce. That may be an acceptable cost — a majority of Californians thought so, and I would probably make the same judgment as a matter of policy — but it certainly undermines Congress’s preferred regulation of commerce.
Mark says
that though it’s possible, presumably through intense theological efforts, to “make doctrinal sense” of the Lopez line of Commerce Clause cases, the “more parsimonious account” is “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.” I dunno. I’m always open to an explanation like this, but again I just don’t think it fits here. In my reading, which I think easily fits the cases as well as what I can determine of the views of the swing justice, Lopez and Morrison are about the need to have *some* limit on federal power. They stand for the proposition that if you can’t justify this exercise of federal power in a way that explains why some exercises of federal power could not be justified, Congress has exceeded its commerce power. The Lopez and Morrison majority seemed particularly concerned in this regard with regulation of activity that is far removed from commerce or economic activity. In each of the cases where the Court has upheld a statute under the commerce power since Lopez — Condon, Pierce County, Alafabco, Raich — the regulated activity has an obvious connection to commerce or economic activity. I think the doctrine leads to relatively artificial line-drawing, but I think it also reflects what Mark refers to as “an attitude towards federalism” — though here it’s not so much a pro-state attitude as a notion that both the states and the federal government have an independent place in the federal system, and that means there have to be some things the feds just can’t regulate. That’s how I’ve always read Justice Kennedy’s Lopez and Term Limits concurrences together, and I think that attitude makes these decisions more than just a collection of results.
So let me see if I get this straight.
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.
Comment by M. Simon — June 6, 2005 @ 4:15 pm
I can buy all of this but for the assertion that Scalia’s dissent is really an ernestful articulation of his position on the current status of the commerce clause. I think that, not withstanding all his originalist posturing, he is as guilty of being stirred by his policy concerns as anyone on the court and fell victim to just such concerns here. Additionally, I think he felt himself stuck between signing onto two poorly written opinions and imagined (as is his usual privy) that he could write his way out of it. As it turned out, he failed. I think there is also some extent to which he is attempting to save political capital and, perhaps more nefariously, he may be trying to curry favor with the administration on a personal level, though his record elsewhere would indicate that to not be his usual MO.
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.
Comment by Rob Store — June 6, 2005 @ 6:04 pm
I agree that the Court in Lopez/Morrison was simply attempting to put some constraint on the federal government’s Commerce Clause power. Federal government regulation either has to have some nexus to interstate commerce (regulating instrumentalities or the channels of commerce, involving economic or commercial activity, or containing some jurisdictional element) or the regulation has to substantially affect I/C. Under the latter, the question becomes how does some activity substantially affect I/C? In Lopez/Morrison, (in my meaningless opinion), the Court was simply rejecting the government’s argument that if an activity substantially affects I/C through such amorphous means as “cost of crime” or “national productivity,” then that was not enough because if it were, everything could be regulated.
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.
Comment by Joelan — June 6, 2005 @ 7:12 pm
Another Nail in Federalism’s Coffin
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…
Comment by Oregon Commentator Online — June 6, 2005 @ 7:44 pm
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…
Comment by Calblog — June 6, 2005 @ 7:51 pm
Easy Commerce Clause case it may have been, but reading between the lines leaves no question that medicinal marijuana is far from a dead issue. In Oakland Cannabis, three Justices unambiguously indicated that, in an appropriate case, they would be receptive to a substantive due process challenge to the federal prohibition on medicinal marijuana. One of those three Justices authored today’s majority opinion, and expressly noted that an individualized due process claim remains a potential basis for relief. Notwithstanding the fact that “the halls of Congress” are ordinarily the appropriate forum for regulatory inquiry, the majority stopped just short of flatly rejecting the underlying factual premises upon which the Schedule I status of marijuana is predicated, and repeatedly expressed concern about the application of the CSA to these particular Plaintiffs.
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.
Comment by Anonymous — June 6, 2005 @ 9:36 pm
Here you’ve joined a growing chorus talking about how this was an “easy” case, but you don’t seem to stop to consider that the whole interstate commerce jurisprudence of the Supreme Court is just so patently wrong. What Raich establishes is that, for any activity, if Congress has some reason to suspect that it might have some (any) effect on interstate commerce, it can regulate it however it pleases. And how many activities don’t affect interstate commerce on some level?
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.
Comment by LPFabulous — June 6, 2005 @ 9:59 pm
Monday, June 6, 2005
Much more all over Scotus Blog (those three and many other interesting recent posts).
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