Comments on: Who was inconsistent about federalism in Raich?

By: fling93 loves fishies

fling93 loves fishies — Sat, 18 Jun 2005 15:51:06 +0000

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…

By: Ex Post

Ex Post — Thu, 09 Jun 2005 19:47:17 +0000

“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…

By: Ex Post

Ex Post — Thu, 09 Jun 2005 19:46:59 +0000

“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…

By: The Debate Link

The Debate Link — Tue, 07 Jun 2005 04:36:30 +0000

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…

By: Log: David Chess

Log: David Chess — Tue, 07 Jun 2005 02:52:20 +0000

Monday, June 6, 2005

Much more all over Scotus Blog (those three and many other interesting recent posts).

By: Ben Kennedy

Ben Kennedy — Mon, 06 Jun 2005 22:51:28 +0000

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.

By: Mark Buehner

Mark Buehner — Mon, 06 Jun 2005 21:42:26 +0000

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).

By: Michael

Michael — Mon, 06 Jun 2005 21:09:26 +0000

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.

By: Will Baude

Will Baude — Mon, 06 Jun 2005 20:51:29 +0000

“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.”

By: BJ Chavez

BJ Chavez — Mon, 06 Jun 2005 20:42:58 +0000

…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.