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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 case of 1942, where the Supreme Court determined that any product which could potentially affect national markets automatically qualifies as a component of “Commerce […] among the several states,” thus subjecting it to the rule of Congress. This is despite the fact that the Filburn, the farmer who the federal government was prosecuting, was growing wheat which was to only be used on his own farm. Since there is a national market for marijuana, the court has essentially ruled that the (unconstitutional-yet-ruled-constitutional) Controlled Substances Act of 1970 takes precedence over any state laws which may legalize marijuana. The dissenters (led by O’Conner who is joined by the sensible Thomas and ailing Rhenquist) make a good yet hopeless case. Says Thomas:

Respondents Diane Monson and Angel Raich use marijuana that has never been bought or sold, that has never crossed state lines, and that has had no demonstrable effect on the national market for marijuana. If Congress can regulate this under the Commerce Clause, then it can regulate virtually anything–and the Federal Government is no longer one of limited and enumerated powers.

Do you want to eat vegetables which are grown on your own property? According to the majority, that’s actually Bill Frist and Ted Kennedy’s decision to make. Congress can pass a law that would make it illegal for you to eat your own vegetables… and the Supreme Court would regard it as being perfectly constitutional. Why? Because by eating your own vegetables you are potentially not purchasing vegetables produced in another state. Thanks, Wickard.

Perhaps most distressing is Scalia’s opinion on the matter. Scalia has apparently decided that that whole “federalism” kick he was on is a dying fad and, in accordance with the Republican Party’s utter rejection of small government principles and state’s rights, consequently decided that this is indeed the federal government’s jurisdiction. He says in his concurrence that

Unlike the power to regulate activities that have a substantial effect on interstate commerce, the power to enact laws enabling effective regulation of interstate commerce can only be exercised in conjunction with congressional regulation of an interstate market, and it extends only to those measures necessary to make the interstate regulation effective. As Lopez itself states, and the Court affirms today, Congress may regulate noneconomic intrastate activities only where the failure to do so ‘could … undercut’ its regulation of interstate commerce.

The terrible thing is that the majority is essentially right in being wrong in this case. Wickard has acted as a strong precedent for other horrible rulings in the past, and there’s no particuarly reason why this case should change anything. Thomas is 100% right that Wickard, Lopez, and now Raich give Congress unlimited power to overturn state law at will.

There is now almost no question that Oregon’s Death With Dignity act will soon be nullified by the Supreme Court. To rule in favor of the government in Raich yet rule in favor of Oregon in Gonzales v. Oregon would be the height of hypocrisy by the court. It is a sad day when the only hope democratic rule has is through an act of judicial activism. Ashcroft and Gonzales’ whim will undoubtably take precedence over the wishes of Oregon voters.

Volokh and SCOTUSblog both have good analyses of the decision.

UPDATE: As does The Agitator, which points out that Thomas is now the only real federalist still on the Supreme Court. Criticism towards former-strict constructionalist Scalia is also rampant, although Sam Bagenstos leaps to his defense. The excellent Hit and Run sums the case up nicely: “This is a major fuck you to sick people who are in pain.”

  1. Ian says:

    There’s an interesting article on NRO by Randy Barnett, a Libertarian lawyer who argued for Raich in front of the court. It’s good to see that NRO still occasionally allows proponents of a small, limited federal government to write in their paper. I figured they were all KJL-style big-government social conservatives nowadays. Anyways, here’s the money quote:
    Justice Scalia’s new stance on the Necessary and Proper Clause leaves citizens little, if any, room to protect their liberty from federal encroachment in the future. It has always seemed significant that he never joined Justice Thomas’s originalist concurrences in Lopez and Morrison. Nor does he explain why Justice Thomas’s originalist dissent in Raich is historically inaccurate, which would be incumbent on him as an “originalist justice” to do. Instead, Justice Scalia now joins in expanding the reach of the Commerce Clause power beyond even that which the Court had endorsed in Wickard v.
    Filburn. In oral argument he admitted, “I always used to laugh at Wickard.” Now it’s Judge Stephen Reinhardt and the Ninth Circuit’s turn to laugh.
    Also, I should clarify why I included Lopez in my original list of bad precedents. Lopez was, completely unlike the other two cases I cited, a blow against laughably liberal interpretation of the commerce clause. At least according to Scalia, however, it did affirm the federal government’s right to liberally use the clause in regulating non-economic activities. From his concurrence:
    As we implicitly acknowledged in Lopez, however, Congress’s authority to enact laws necessary and proper for the regulation of interstate commerce is not limited to laws directed against economic activities that have a substantial effect on interstate commerce. Though the conduct in Lopez was not economic, the Court nevertheless recognized that it 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.” 514 U. S., at 561. This statement referred to those cases permitting the regulation of intrastate activities “which in a substantial way interfere with or obstruct the exercise of the granted power.” […] The regulation of an intrastate activity may be essential to a comprehensive regulation of interstate commerce even though the intrastate activity does not itself “substantially affect” interstate commerce. Moreover, as the passage from Lopez quoted above suggests, Congress may regulate even noneconomic local activity if that regulation is a necessary part of a more general regulation of interstate commerce. See Lopez, supra, at 561. The relevant question is simply whether the means chosen are “reasonably adapted” to the attainment of a legitimate end under the commerce power.

    Casey – It depends on what part of the “extreme right” you’re talking about. The social conservatives assuredly liked the decision as it’s just another step in enlarging the federal government and, consequently, their power to enforce their moral code on everyone else. Others on the “extreme right,” however, are extremely wary of the federal government and certainly didn’t like this decision. I agree that ultimately they are, as you said, two peas in the same pod.

  2. Danimal says:

    First off: Spot-on about Justice Thomas. He is my judicial hero. He had the nuts to be consistently federalist when Scalia shied away. And, after grudging credit is given to the liberal wing for sticking to their big government guns in this case, even in the face of liberalized marijuana laws, only Thomas, Rehnquist, and O’Connor truly deserve praise.

    Thomas: Perhaps soon we’ll hear the end of the bullshit about Thomas being Scalia’s Man Friday. Thomas is a brilliant and resolutely independent legal mind.

    Rehnquist: One of Rehnquist’s (presumed) goals as a justice was the rollback of federal power he almost spearheaded with Lopez and Mosrrison, and at this point this may be his last gasp.

    O’Connor: That she went against the majority whim in this case is rather odd. Did she sense some less-obvious political wind blowing, or for once did she stand on principle?

    OVERALL: Doctrinally, this case is totally unsurprising. If it is anything more than a straight application of Wickard, it expands the Commerce power only slightly, and I’m sure our friends in Congress are delighted.

    Here’s my silver lining: With the GOP running Congress and the Executive Branch, there has been a lot of BS lately about Democrats “discovering” the decentralized government of federalism. If this trend is real, Raich should definitely give it a kick in the ass. And if it’s not real, this case might make it so. I hope to see political backing in Congress for devolving power from Congress.

    In other words, I’m an eternal optimist.

  3. Casey says:

    I also noticed the extreme right didn’t seem to mind the decision either, so what’s your point? Further proof that the extreme right and the extreme left are two peas in a pod.

  4. Ian says:

    So, was anyone else wondering why all the moonbat blogs weren’t talking about the Raich decision? The Agitator has the answer.

  5. Jean-Claude Ontario says:

    for the libertarians out there Opinion

  6. Timothy says:

    I remember being in Eugene and people ragging on about Clarence Thomas, much like the usually correct “Jane Galt”, if Bush had the sense to fill the bench with two more Clarence Thomas clones I’d be the happiest man in the country.

  7. This is one of the biggest reason I say Clarence Thomas should be the Chief Justice. He is sensible.

    If NAACP attorney Thurgood Marshall was able to become a justice, Clarence Thomas should be up that much more.

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