According to Reuters SCOTUS has closed the “compassionate” loophole created by California to allow medical patients to grow marijuana to alleviate pain. Verity at SA (with comments) has a useful synopsis of the issues involved in Gonzales v…

Have had a chance to browse some of the reaction and analysis to Raich. Much of the outrage seems not to be tethered to legitimate constitutional arguments. One that has some heft comes from Mr. Justice Thomas’ dissent: If Congress can regulate this un…

Supreme Court holds

United States v. Maxwell and United States v. Smith are two important Commerce Clause decisions from the Eleventh Circuit Court of Appeals. In both cases, the defendants produced their p*rnographic images INTRAstate but used materials that travelled INTERstate (re: diskettes). The Eleventh Circuit held that Congress could not reach this conduct because it was non-economic (no money exchanged hands for the photos) and that the fact that the images were stored on articles of interstate commerce was an insufficient nexus to interstate commerce.

In Maxwell a unanimous three-judge panel held that 18 U.S.C. 2252A(a)(5)(B), which makes it a federal crime to posses child p*rnography on materials that traveled in interstate commerce, was an invalid exercise of Congress’ commerce power. Judge Tjoflat wrote for the panel that since Maxwell’s possession of the pornographic images was non-commercial, it would not apply Wickard v. Filburn’s aggregation principle. Slip op. at 37 (”We believe this aggregate approach cannot be applied to intrastate criminal activity of a non-economic nature.”)

In Smith, another Tjoflat opinion, a unanimous three-judge panel of the Eleventh Circuit, applying plain error review, reversed another conviction obtained under Sec. 2252A(a)(5)(B). Maxwell and Smith exasperated a circuit split concerning Congress’ power to criminalize the intrastate creation and possession of child pornography.

Another important case testing the limits of Congress’ commerce power is United States v. Stewart. In Stewart, a 2-1 panel of the Ninth Circuit, per Judge Kozinski, held that Congress could criminalize the possession of homemade machine guns. The defendant in Stewart used parts that traveled in interstate commerce to convert his semi-automatic rifle with the capability to fire automatically, i.e., Stewart’s rifle would fire repeatedly without his having to continually pull the trigger.

The government has requested that all three petitions for a writ of certiorari be held and then disposed of in light of Ashcroft v. Raich.

Post-Raich, it’s unlikely that Maxwell, Smith, or Stewart will stand. All three cases, like Raich, involve the intrastate production or possession of materials for which there is a national market (machine guns and child pornography). The Court will likely GVR (grant cert., vacate the judgment, and remand for reconsideration) these cases. But it’s worth keeping an eye on them.

On Raich: “On a more mundane level, I suppose that the “possession of pornography” cases rattling around in the lower courts are now clearly resolved in favor of the government.”

As for the possession of pornography cases, isn’t there a First Amendment angle there that’s lacking here? Stanley v. Georgia, and so forth?