Who was inconsistent about federalism in Raich?
On the eve of the oral argument in Raich, I wrote:
[I]t will be interesting to see the response of those who have harshly criticized the majority’s recent federalism decisions and have professed abject deference to Congress and the Executive branch about federalism matters. From a liberal perspective, one might want to think: I support the enforcement of federalism limits when federalism is really a stand-in for individual rights, and I support strong federal government power when the federal policy in question is really a stand-in for individual rights. But it is rather hard to translate that instinct into sound constitutional law.
In today’s decision, the Court’s liberals — all in the majority — did not attempt to work out a tricky position of that sort. They stuck with their deference to Congress.
Conservatives faced a dilemma too, I wrote at the time, but only “if their conservatism is the kind that puts great importance on strong anti-drug enforcement.”
But conservatives who take the libertarian position on drugs can happily seize a two-fold opportunity: they can demonstrate a principled fidelity to constitutional federalism and, at the same time, improve federalism’s reputation among liberals.
Three of the Court’s conservatives did take the side of the state, but Justice Scalia did not. Should we aim special criticism at him?
Scalia emphasized Congress’s power to regulate what is certainly an interstate market. He notes that the Lopez Court said that private gun possession could be regulated as “an essential part of a larger regulation of economic activity, in which the regulatory scheme could be undercut unless the intrastate activity were regulated.” But there wasn’t any scheme of regulating an economic activity that depended on banning the possession of guns only within a 1000-foot radius of a school, the law in question in Lopez. The Controlled Substances Act at issue in Raich is completely different. It regulates an interstate economic activity, the marijuana market, and that scheme would be undercut if it didn’t extend to homegrown marijuana — even homegrown marijuana used medically.
I’m sure many people will accuse Scalia of faltering in his support for federalism. But I have always thought the best way to understand Lopez is not by the commercial/noncommercial distinction, but by whether the regulated intrastate activity is part of a connected web of interstate activity. We can picture individual states making diverse, decentralized decisions about how to deal with violence in schools — the interstate activity in Lopez — without the policy in one state interfering with the approach chosen by another. One state’s experiment with gun-exchange programs and parental responsibility laws doesn’t undercut a tough imprisonment policy used in the next state. You don’t need a uniform national law to deal with the problem. In fact, the different state policies work as experiments, generating information about which policy works best. But if it is to be possible to ban marijuana, a uniform national law is important. One state’s lenient approach would undercut the next state’s hardcore approach. That’s the Lopez-based argument for congressional power in Raich.
I supported the Court’s decisions in Lopez (and Morrison) precisely because of this kind of analysis (and not because of any economic/noneconomic distinction), so Scalia’s opinion makes sense to me. I’m going to defend him against the accusation that he’s turned his back on the Court’s federalism doctrine.
…and one state’s lenient approach to gun control could completely undercut another state’s hardcore approach. I wish I could say that I agree with your rationalization, but I don’t think it holds up logically. You’re making a broad assumption that you don’t need a federal law to enforce gun control. Seems to me that that’s just a matter of perspective.
Comment by BJ Chavez — June 6, 2005 @ 4:42 pm
“But if it is to be possible to ban marijuana, a uniform national law is important. One state’s lenient approach would undercut the next state’s hardcore approach.”
Of course, some states, even states with hardcore approaches, disagreed. Thus Alabama, Louisiana, and Mississippi’s amicus brief:
“Where do States, counties, and municipalities fit into the Government’s theory of this case? Regrettably, the answer appears to be that they don’t. The Government’s assertion of federal power over local activity seems rather plainly to rest on the assumption that absent federal regulation, anarchy would reign at the local level. The Government’s assumption of local law enforcement’s irrelevance is (to say the least) unwarranted. As Alabama’s own record of enforcement makes clear, see supra at 5-7, the States are ready, willing, and able to police and prosecute local drug crimes. See also Riley v. National Fed’n of the Blind of N.C., Inc., 487 U.S. 781, 795 (1988) (“[W]e presume that [state] law enforcement officers are ready and able to enforce” the law.). And the Government has done nothing in its brief to demonstrate (nor could it, we submit) that state and local enforcement efforts are so woefully inadequate – or a cooperative relationship with state and local governments so unduly burdensome – that a federal takeover is justified.”
Comment by Will Baude — June 6, 2005 @ 4:51 pm
Regarding interstate/intrastate activity: Presumably people that are going use med-pot are using pot for the first time and do not have a blackmarket dealer they will stop using. Regarding a national ban: Dry counties have not needed a national law to prohibit alcohol consumption. I believe you are wanting to say if is to be possible for a national ban on marijuana then a national law is important - clearly, but a complete ban in the California region isn’t what California wants.
Comment by Michael — June 6, 2005 @ 5:09 pm
Ann, precisely my take on the issue. I think there is a strong argument that libertarian leaning- pro originalists can hang their hats on this decision without blushing. Im pro-legalization, but also constructionist yet I happen to agree with Scalia. I dont like the result but I respect the integrity of the decision. This should be a political issue.
This seems to fall into interstate commerce pretty firmly. Im quite sure that pharmaceuticals sales fall under interstate commerce, and certainly a chemical which interferes with the market of legally prescribed alternatives has a interstate component. If anything this is a conservative decision, well within the logic of Wickard. Scalia makes a strong point that things like ivory or shark fin can be banned federally no matter the source (certainly i cant raise endangered turtles in my pond to use for homeopathic turtle soup).
Comment by Mark Buehner — June 6, 2005 @ 5:42 pm
The “problem” so to speak is that marijuana use is not a federal problem to begin with. The reason to be disappointed in Scalia is because he failed to scrutinize the framers’ original intent behind the commerce clause as Thomas did. The commerce clause was designed to force states to cooperate with each other, not restrict commerce to accomplish other policy goals. You don’t have to be a jailed hippie blogging from prison to see that the CSA is a federal power grab, using an enumerated power to implement an unenumerated regulatory power.
Comment by Ben Kennedy — June 6, 2005 @ 6:51 pm
Monday, June 6, 2005
Much more all over Scotus Blog (those three and many other interesting recent posts).
Comment by Log: David Chess — June 6, 2005 @ 10:52 pm
Where Did All the Federalists Go?
The Medical Marijuana case, Ashcroft v. Raich, has come down in favor of the government. The Court ruled that the federal government could ban non-commercial use of medical marijuana as part of its general statutory scheme against drug use. For the e…
Comment by The Debate Link — June 7, 2005 @ 12:36 am
“The reports of [Lopez’s] death are greatly exagge
Thursday, June 09, 2005
“The reports of [Lopez’s] death are greatly exaggerated”
I previously mentioned that Raich is largely about the Necessary and Proper Clause and McCulloch. Wickard held that although the Commerce Clause itself couldn’t reach…
Comment by Ex Post — June 9, 2005 @ 3:46 pm
“The reports of [Lopez’s] death are greatly exagge
I previously mentioned that Raich is largely about the Necessary and Proper Clause and McCulloch. Wickard held that although the Commerce Clause itself couldn’t reach the intrastate, nonecomonic activity, the regulation of it was necessary and proper…
Comment by Ex Post — June 9, 2005 @ 3:47 pm
Congressional Over-Raich
By now, you’ve heard about the Supreme Court’s decision in the medical marijuana case, Gonzales v. Raich (previously Ashcroft v. Raich). They ruled that Congress had the power to ban the use of medical marijuana even in states that had vote…
Comment by fling93 loves fishies — June 18, 2005 @ 11:51 am