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Old September 4, 2009, 04:09 PM   #2
htjyang
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Join Date: September 4, 2009
Location: People's Republic of Kalifornia
Posts: 32
(Greetings, all. I have actually been lurking around here for many months but only chose to register today because, well, I just can't resist a good Commerce Clause discussion. )

I agree with Antipitas entirely when it comes to defining the Commerce Clause. I also agree with both publius42 and Ricky with regard to the practical effect of US v. Lopez. I do think that the decision should not be trivialized. Prof. Glenn Reynolds (a.k.a. Instapundit") made the very good point that the Rehnquist Court's federalism revolution only faltered for lack of sufficient follow-up.

Until now.

The Supreme Court will soon be hearing the case of US v. Comstock (08-1224) in its upcoming term. The issue involves whether the federal government can assume the power of civil commitment (traditionally reserved for the states) for potentially dangerous sexual predators. The case will answer the question of whether, in light of Raich, Lopez and US v. Morrison (99-5) are still good law. If the Court affirms the 4th Circuit, (which struck down the Adam Walsh Child Protection and Safety Act of 2006) then it will signal that there is some willingness to curb the excesses of the Commerce Clause. If the Court fails to do so, then that means barring an infringement of a right of the people, the Commerce Clause has no limits.

Personally, I can't say I'm optimistic, even though Morrison clearly suggests that the 4th Circuit is right. Of the 5 member majority in Morrison, both Chief Justice Rehnquist and Justice O'Connor are gone. Justices Scalia and Kennedy were with the majority in Raich. Justice Alito seems to have some interest in curbing the excesses of the Commerce Clause (see his opinion in Rybar). On the other hand, it seems to me that his background as a former federal prosecutor is a strong influence on him (Scotusblog stats regularly show that of the Court, he is the most friendly to prosecutors) so it's not clear he will do the right thing. Chief Justice Roberts's record on Commerce Clause is unknown to me. The only person we can be certain will do the right thing is Justice Thomas.

If, by some miracle, the Court ends up doing the right thing, it will have to reconcile Lopez-Morrison with Wickard-Raich. It has been suggested on Volokh Conspiracy that one possibility is for the Court to proclaim the principle of "core economic purpose." Whereas wheat and marijuana are items can be traded and it was Congress's intent to regulate their trade, the purpose of the Gun-Free School Zones Act was not to regulate the trade of firearms but to prevent their use at specific locations. Similarly, the purpose of the Violence Against Women Act was not to regulate violence against women, but to prevent it. To put it another way, the latter 2 measures were designed as crime-fighting measures. Therefore, they do not serve a "core economic purpose."

Obviously, this still affords the Commerce Clause way more latitude than it deserves. But in light of the current political climate and the balance on the Court, this may be the best we can hope for in the foreseeable future.

Another interesting issue lies in the recent passage of laws by states such as Montana declaring that intrastate manufacture of firearms is not subject to federal gun control. It seems to me that what is happening is that the states, recognizing that a direct assault on the Commerce Clause is bound to fail, decided to add the 2nd Amendment to the mix, hoping that the courts might be willing to curb the Commerce Clause if an enumerated right is at stake. I am hoping that some state will summon up the courage to bring a challenge all the way to the Supreme Court. If the Court is willing to curb the Commerce Clause this way, then the argument underlying Wickard-Raich will gradually unravel.

I know that Antipitas, Prof. Barnett (who argued for Raich), and other libertarians feel betrayed by Justice Scalia's concurrence in Raich. I don't think libertarians have given his opinion sufficient attention (Full disclosure: I consider myself to be a conservative rather than a libertarian.)

i. It is wrong to claim that somehow his opinion is also motivated by Wickard. Unlike Stevens's opinion, he never cited Wickard. He did cite "Board of Trade of Chicago v. Olsen, 262 U. S. 1, 40 (1923) (activities of a local grain exchange); Stafford v. Wallace, 258 U. S. 495, 517, 524-525 (1922) (intrastate transactions at stockyard)." These cases predate Wickard. One might argue that they were wrongly decided. But as they predate Wickard, they could not be influenced by it. Nor are they the progeny of the New Deal as they predate that, too.

ii. His concurrence is more limited than the majority opinion:

Quote:
In the CSA, Congress has undertaken to extinguish the interstate market in Schedule I controlled substances, including marijuana. The Commerce Clause unquestionably permits this. The power to regulate interstate commerce "extends not only to those regulations which aid, foster and protect the commerce, but embraces those which prohibit it." Darby, 312 U. S., at 113. See also Hipolite Egg Co. v. United States, 220 U. S. 45, 58 (1911); Lottery Case, 188 U. S. 321, 354 (1903).
Here again, 2 citations of precedents that have nothing to do with Wickard or the New Deal. Even if you disagree with this view, they are more limited than Wickard because clearly, it was not Congress's intent to prohibit the trade of wheat. In contrast, it was Congress's intent to prohibit the trade of marijuana.

To summarize my reading of his concurrence, Scalia believes that precedents dating back to the "Progressive Era" permits Congress to take whatever measures necessary to stop interstate trade of a certain item. Nowhere in his opinion does he mention Congress's authority to regulate the intrastate trade of items like wheat when Congress does not intend to prohibit its interstate trade.

In conclusion, I think the pessimism and outrage libertarians direct toward his concurrence are misplaced. If the issue involves the intrastate trade of an item that Congress does not intend to prohibit (such as firearms, for example), then I expect him to curb Congress's abuse of the Commerce Clause.

Of course, if he fails to do that, then I promise I'll post a video of myself eating his Raich concurrence.

I do have one question for those of you interested in the Commerce Clause: Do you agree with the "channels, instrumentalities, and substantial effects" 3-part test outlined by the Court in Lopez or do you agree with Justice Thomas's concurrence that only the first 2 should be permitted?

Last edited by htjyang; September 4, 2009 at 04:10 PM. Reason: corrected spelling
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