The Normalization of Rehnquist Court Commerce Clause Jurisprudence?

I think we may be seeing the “normalization” of the Rehnquist Court’s Commerce Clause jurisprudence. Any principle is at least somewhat unstable until the Court decides a case establishing an outer limit. For some time, it was unclear how far the Court’s pro-states majority intended to take its “Federalist revival,” and the dissenters refused to even engage the jurisprudence. That pattern changed recently on the 11th amendment side with Hibbs and Lane, which both established some limits and involved a different voting pattern than the previous 5-4 split. The same thing may be happening in Raich: The Court has made clear it doesn’t intend to roll back federal power in any revolutionary way, and in the process Lopez and Morrison look less like wild cards and more like ordinary doctrine, as Orin Kerr suggests.

I’m surprised by Mark Tushnet’s suggestion that Raich supports the widespread view that, in Commerce Clause cases, the Justices vote to uphold statutes they like and strike down statutes they don’t like. I thought both Stevens and O’Connor made it pretty clear that they were voting against their policy preferences, and I take it the same holds true for several others as well. I have similar doubts about Prof. Kerr’s “symbolic federalism” point: The dissenters here plainly think this is an important statute, in part because it (unlike the laws in Lopez and Morrison) involves an effort to stifle the states acting as laboratories. And yet they are willing to strike it down. On the other hand, I do think that both Tushnet and Kerr may have accurately described Justice Kennedy’s views, and to the extent that he holds the balance in these cases they may be right about the views of “the Court.” But most of the justices seem to be taking more principled stands.

The most disappointing thing is the refusal by the majority or by Justice Scalia to acknowledge the difference that the presence or absence of state regulation makes. Ann Althouse asks whether a decision by CA to legalize recreational use should make it unconstitutional for Congress to regulate. But I think the relevance of state regulation is more nuanced than that. In Raich, state law itself defined a separate class of activity that excluded both commercial and intrastate transactions. And the substance of state regulation, such as the use of ID cards to readily identify who was and was not legal under the state scheme, undermined the practical arguments that state exceptions would undermine the federal scheme. Neither can be said about Ann’s hypothetical. Where the U.S.’s arguments under the Necessary and Proper clause depend on practicalities – as the majority and the SG conceded in Raich — then the impact of state regulation as a fact on the ground shouldn’t be ignored.

Where we go from here will turn on at least two variables: First, how willing will the Court be to count an isolated provision as part of a comprehensive federal scheme? Lopez – which did not count § 922(q) as part of the same “scheme” as § 922(b) of the same statute – makes it difficult to be completely deferential to Congress on this score. Second, is the Court willing to review judgments of “necessity” under the Necessary and Proper Clause. The majority opinion in Raich is rigorous enough on that score to belie any suggestion that the test is a rubber stamp, and I doubt either Kennedy or Scalia will be willing to treat it as such.

The sky could still fall on the States, of course. But when my colleagues and I filed the “Con Law Scholars” amicus brief in Raich, we were worried about an even worse result than this one.