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Al Norris · June 6, 2005, 05:04 PM

Gonzales v. Raich

Held: Congress' Commerce Clause authority includes the power to prohibit the local cultivation and use of marijuana in compliance with California law.
352 F. 3d 1222, vacated and remanded.

Stevens delivered the opinion with Kennedy, Souter, Ginsburg, and Breyer joined. Scalia concurred in a separate opinion.

O'Conner dissented in which Rehnquist and Thomas joined. Thomas filed a separate dissenting opinion.

The Court explicitly acknowledges that for the first century, use of the Commerce Clause was to preclude the states from discriminating against one another and affecting real interstate commerce, and then goes on to show how this morphs into discriminating against the states by the feds, as it reaches further and further into intrastate commerce.

Once again, the Court dances around what it calls "the power to regulate activities that substantially affect interstate commerce" to include the absolute minimal affect of activities and that these activities (the de minimus character) are of no consequence (see Westfall v. United State, 274 U.S. 256, 259 [1927]) and also Wickard v. Filburn). Yet the Court specifically avoids that part of the Agricultural Adjustment Act (see Wickard) that explicitly kept from Government action those private farmers that harvested less than 200 bushels or farmed 6 acres or less (Filburn did not fall into this category). Completely disingenuous, when arguing the merits of "substantial effects" as applied to the Controlled Substances Act.

Then, in part IV (page 23 of the slip opinion PDF, 1st paragraph) the court intones, "In thier (the respondents) myopic focus, they overlook the larger context of modern-era Commerce Clause jurisprudence preserved by those cases. Moreover, even in the narrow prism of respondents' creation, they read those cases (Lopez and Morrison) far too broadly." Excuse me? Pot, meet kettle!

Page 28 of the PDF, the majority begin to attack the dissenting opinions! Isn't it normally the job of dissent to attack the majority? Is the majority so unsure of themselves that they fall prey to ad hominems? Unbelievable.

Besides my opinion that the Court has allowed such overbroad interpretation of the Commerce Clause, I find it odd that they would argue ad hominems against the petitioners and the dissenting opinions! Such broad swipes at fellow justices (even in dicta) are not germane to their cause de jure. Just my opinion and that may not be the reality of the Court.

I will give Scalia a big thumbs up, even though I disagree with his opinion. At least he has made the attempt to be civil to his colleagues and to make the Courts rationale more readable and therefore more understandable.

As for the dissent by Justice O'Conner, I can best sum it up by quoting this portion of her dissent: "If the Court always defers to Congress as it does today, little may be left to the notion of enumerated powers."

O'Conner goes on to write: "The Court's definition of economic activity is breathtaking. It defines as economic any activity involving the production, distribution, and consumption of commodities. And it appears to reason that when an interstate market for a commodity exists, regulating the intrastate manufacture or possession of that commodity is constitutional either because that intrastate activity is itself economic, or because regulating it is a rational part of regulating its market.... Most commercial goods or services have some sort of privately producible analogue. Home care substitutes for daycare. Charades games substitute for movie tickets. Backyard or windowsill gardening substitutes for going to the supermarket. To draw the line wherever private activity affects the demand for market goods is to draw no line at all, and to declare everything economic. We have already rejected the result that would follow--a federal police power." Brilliant!

Then there is the dissent from Justice Thomas, which starts off with: "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."

In the majority opinion, Stevens claims that the states have long been unaccountable in enforcement of their own laws, yet cites no cases to base this presumption upon. Yet both dissents cite Riley v. National Federation of Blind of N.C., Inc., 487 U.S. 781, 705 [1988] as establishing that the Court does indeed presume that the states enforce their own laws.

All in all, I believe that Justice Thomas and to a lessor extent, Justice O'Conner, have it correct. The Majority has simply shredded the Constitution and Federalism may now run amok.

June 6, 2005, 05:04 PM	#19
Al Norris Moderator Emeritus Join Date: June 29, 2000 Location: Rupert, Idaho Posts: 9,660	Gonzales v. Raich Held: Congress' Commerce Clause authority includes the power to prohibit the local cultivation and use of marijuana in compliance with California law. 352 F. 3d 1222, vacated and remanded. Stevens delivered the opinion with Kennedy, Souter, Ginsburg, and Breyer joined. Scalia concurred in a separate opinion. O'Conner dissented in which Rehnquist and Thomas joined. Thomas filed a separate dissenting opinion. The Court explicitly acknowledges that for the first century, use of the Commerce Clause was to preclude the states from discriminating against one another and affecting real interstate commerce, and then goes on to show how this morphs into discriminating against the states by the feds, as it reaches further and further into intrastate commerce. Once again, the Court dances around what it calls "the power to regulate activities that substantially affect interstate commerce" to include the absolute minimal affect of activities and that these activities (the de minimus character) are of no consequence (see Westfall v. United State, 274 U.S. 256, 259 [1927]) and also Wickard v. Filburn). Yet the Court specifically avoids that part of the Agricultural Adjustment Act (see Wickard) that explicitly kept from Government action those private farmers that harvested less than 200 bushels or farmed 6 acres or less (Filburn did not fall into this category). Completely disingenuous, when arguing the merits of "substantial effects" as applied to the Controlled Substances Act. Then, in part IV (page 23 of the slip opinion PDF, 1st paragraph) the court intones, "In thier (the respondents) myopic focus, they overlook the larger context of modern-era Commerce Clause jurisprudence preserved by those cases. Moreover, even in the narrow prism of respondents' creation, they read those cases (Lopez and Morrison) far too broadly." Excuse me? Pot, meet kettle! Page 28 of the PDF, the majority begin to attack the dissenting opinions! Isn't it normally the job of dissent to attack the majority? Is the majority so unsure of themselves that they fall prey to ad hominems? Unbelievable. Besides my opinion that the Court has allowed such overbroad interpretation of the Commerce Clause, I find it odd that they would argue ad hominems against the petitioners and the dissenting opinions! Such broad swipes at fellow justices (even in dicta) are not germane to their cause de jure. Just my opinion and that may not be the reality of the Court. I will give Scalia a big thumbs up, even though I disagree with his opinion. At least he has made the attempt to be civil to his colleagues and to make the Courts rationale more readable and therefore more understandable. As for the dissent by Justice O'Conner, I can best sum it up by quoting this portion of her dissent: "If the Court always defers to Congress as it does today, little may be left to the notion of enumerated powers." O'Conner goes on to write: "The Court's definition of economic activity is breathtaking. It defines as economic any activity involving the production, distribution, and consumption of commodities. And it appears to reason that when an interstate market for a commodity exists, regulating the intrastate manufacture or possession of that commodity is constitutional either because that intrastate activity is itself economic, or because regulating it is a rational part of regulating its market.... Most commercial goods or services have some sort of privately producible analogue. Home care substitutes for daycare. Charades games substitute for movie tickets. Backyard or windowsill gardening substitutes for going to the supermarket. To draw the line wherever private activity affects the demand for market goods is to draw no line at all, and to declare everything economic. We have already rejected the result that would follow--a federal police power." Brilliant! Then there is the dissent from Justice Thomas, which starts off with: "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." In the majority opinion, Stevens claims that the states have long been unaccountable in enforcement of their own laws, yet cites no cases to base this presumption upon. Yet both dissents cite Riley v. National Federation of Blind of N.C., Inc., 487 U.S. 781, 705 [1988] as establishing that the Court does indeed presume that the states enforce their own laws. All in all, I believe that Justice Thomas and to a lessor extent, Justice O'Conner, have it correct. The Majority has simply shredded the Constitution and Federalism may now run amok. Last edited by Al Norris; June 6, 2005 at 09:27 PM. Reason: Changed name of Souter to Stevens... Ideological error!