SCOTUS decision in Raich is out.

[MicroBalrog]

But you know what? You'll hardly hear a peep out of the conservative, States-rights crowd, because the ruling went against those dreaded pot smokers. Guess what? Sooner or later, your ox will get gored, too, and then we'll see lots of bewildered looks and Hank Hill-like "now wait just a cotton-pickin' minute" protests.

And vice versa, Marko. I am sure that if Stewart got decided first, not one of the liberal marijuana-legalization folks would have squeaked a note about it.

Sad world, we live in.

[Warbow]

All I can say is, "Ugh."

Thomas' quote in Antipitas' post sums it up simply and concisely. Too bad it's from the dissenting side.

[shaggy]

I can't imagine how anyone would be surprised by this outcome. If you read Wickard and the subsequent CC cases it should have been crystal clear how this would end. And Rich, with all due respect I don't think Raich will be any more basis for more unbridled federal intervention than had already been put in motion in 1942 with Wickard. I don't like the outcome here one bit, but anyone who was expecting the SCOTUS to eviscerate the constitutional basis on which 63 years of federal legislation and creation of numerous new federal agencies have been premised needs to remove the rose colored glasses. Especially when seen in light of the prior CC jurisprudence and stare decisis.

Antipitas - your concern about the 6 acre/200 bushel exemption in the AAA and the de minimis nature of certain activities seems to me to be a misunderstanding of the issues. The exemption in the AAA is the result of a Congressional choice to regulate interstate commerce in a certain fashion. IF congress has the power to legislate pursuant to the commerce clause, they also have the power to create exemptions in the legislation. In Wickard, however, the fact that a particular activity had a de minimis effect on the overall market was found to be of no consequence to the question of the overall constitutionality of the legislation if the aggregate effect of the de minimis conduct could have an impact on interstate commerce. You seem to be comparing apples to oranges, but maybe I've misunderstood. Additionally, I'm not sure what your point is with the court's reference to Lopez & Morrison, or how you relate it to the above.

[Rich Lucibella]

I don't think Raich will be any more basis for more unbridled federal intervention than had already been put in motion in 1942 with Wickard.

Shaggy-
Not from a judicial stand point, agreed. BUT, from a Law Enforcement standpoint?......recency matters. There are federal prosecutors all over this country salivating for an opportunity to make a name for themselves.

Rich

[Al Norris]

Shaggy, perhaps you did misunderstand my points.

The post I made was in fact notes I was taking as I read the syllabus. Those notes reflect my understanding of what Stevens was saying contrasted with O'Conner's and Thomas' dissent.

The usage of a 40 year old dictionary to define economy to consumption (which you will not find in current dictionaries) is cherry picking. And that is what O'Conner meant when she related Wickard to the regulated exceptions which the majority simply side stepped.

Of note is how Thomas relates the current opinion with how Lopez and Morrison turned... and how they would turn if ruled today.

I did not however, mention those cases, except as reference to what Stevens wrote, by clarification: "Moreover, even in the narrow prism of respondents' creation, they read those cases (Lopez and Morrison) far too broadly" The insertion of the two cases were to clarify "those cases" for those that hadn't yet read the decision. They were in no way meant to imply anything.

[MicroBalrog]

Antipitas: So does this essentially mean that Lopez and Morrison are overturned? Or can they still be relied on in appeals on other issues, such as US vs. Steward?

[Al Norris]

MicroBalrog asked:
Antipitas: So does this essentially mean that Lopez and Morrison are overturned? Or can they still be relied on in appeals on other issues, such as US vs. Steward?

Not being an attorney, I can only offer my non-educated opinion.

No, it doesn't mean that at all.

But the manner in which the majority decided today, I would hesitate to use them, if you expected the Court to go against precedent.

As for Stewart, with this decision in the bag, it is just a matter of time before they rule that the Commerce Clause rules the day there, also.

Stare Decisis, the altar of the Court and the bane of Justice.

[tyme]

I agree on Stewart, but I think Lopez and Morrison are still good law. Nothing is produced or consumed by carrying a firearm in a school zone, or by raping someone. (my earlier sarcastic comment about rape being production of foetuses notwithstanding) Lopez is a really weak case, because it might be that the only reason the GFSZA was unconstitutional was that Congress didn't specify that the gun had to have travelled in interstate commerce beforehand. Nobody's challenged the new version, have they?

Stewart, OTOH, is concerned with production of machineguns. Since production is economic in nature, and since according to the Court the Constitution allows Congress to regulate economics as long as it has a rational basis for doing so, virtually all of the NFA and FFL scheme is unassailable.

Originally Posted by Majority Opinion

In assessing the scope of Congress’ authority under the Commerce Clause, we stress that the task before us is a modest one. We need not determine whether respondents’ activities, taken in the aggregate, substantially affect interstate commerce in fact, but only whether a “rational basis” exists for so concluding.

Someone please open the doors to the supreme court. It must stink in there.

"It's okay if Congress isn't really regulating intrastate economics, we mean intrastate commerce... no, wait, it's interstate commerce that the Constitution talks about, right? All that's important is whether Congress thinks that it's doing something affecting economics, err, we mean commerce, yeah, commerce."

Originally Posted by Scalia's 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.

The brilliant stupidity of Scalia shines through. Congress can marginalize or ban any product, and very simply: they devise an interstate commerce regulation scheme, such as the FFL scheme with firearms; then they declare that intrastate production and sale would interfere with their interstate regulation because people could simply drive the products between states subject to no controls whatsoever. That seems to be the argument with respect to drugs. The Horror! People driving products across state borders without getting licenses from the federal gestapo! Unacceptable! Production must be regulated as well to combat this possibility.

Here's Thomas's take, which I happen to agree with, on the commerce definition issue:

As I explained at length in United States v. Lopez, 514 U.S. 549 (1995), the Commerce Clause empowers Congress to regulate the buying and selling of goods and services trafficked across state lines. Id., at 586—589 (concurring opinion). The Clause’s text, structure, and history all indicate that, at the time of the founding, the term “ ‘commerce’ consisted of selling, buying, and bartering, as well as transporting for these purposes.” Id., at 585 (Thomas, J., concurring). Commerce, or trade, stood in contrast to productive activities like manufacturing and agriculture. Id., at 586—587 (Thomas, J., concurring). Throughout founding-era dictionaries, Madison’s notes from the Constitutional Convention, The Federalist Papers, and the ratification debates, the term “commerce” is consistently used to mean trade or exchange–not all economic or gainful activity that has some attenuated connection to trade or exchange. Ibid. (Thomas, J., concurring); Barnett, The Original Meaning of the Commerce Clause, 68 U. Chi. L. Rev. 101, 112—125 (2001). The term “commerce” commonly meant trade or exchange (and shipping for these purposes) not simply to those involved in the drafting and ratification processes, but also to the general public. Barnett, New Evidence of the Original Meaning of the Commerce Clause, 55 Ark. L. Rev. 847, 857—862 (2003).

Originally Posted by Majority Opinion again - Stevens

One need not have a degree in economics to understand why a nationwide exemption for the vast quantity of marijuana (or other drugs) locally cultivated for personal use (which presumably would include use by friends, neighbors, and family members) may have a substantial impact on the interstate market for this extraordinarily popular substance.

One need not have a criminal justice and law degree to understand why laws against possession of concealable items are rarely enforceable without violating federal and state constitutions, but that doesn't seem to stop Congress from passing such laws, the Court from validating them, or the executive from enforcing them.

[publius42]

I will look at Thomas later

WildanalyzethatAlaska

Don't forget Madison in Federalist 45.

Also interested in whether you believe Madison and the gang intended for homegrown cannabis and machine guns to be among the "few and defined" powers of the federal govt, or whether those are things that "extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State" and are thus properly State govt concerns?

[publius42]

James Madison to Joseph C. Cabell

13 Feb. 1829 Letters 4:14--15

For a like reason, I made no reference to the "power to regulate commerce among the several States." I always foresaw that difficulties might be started in relation to that power which could not be fully explained without recurring to views of it, which, however just, might give birth to specious though unsound objections. Being in the same terms with the power over foreign commerce, the same extent, if taken literally, would belong to it.

Yet it is very certain that it grew out of the abuse of the power by the importing States in taxing the non-importing, and was intended as a negative and preventive provision against injustice among the States themselves, rather than as a power to be used for the positive purposes of the General Government, in which alone, however, the remedial power could be lodged.

Based on this, Federalist 45, and other readings, I think that if you took a copy of Raich back to the Constitutional Convention and showed it to the Founders, the proposed Constitution would get ZERO votes.

[dolanp]

It's just so illogical, you could say on the same basis, that making cookies from scratch in your kitchen can be regulated under the commerce clause because Nestle won't make as much money....insanity!

[Al Norris]

Dolanp, Justice O'Conner made just those observations in her dissent.

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. Lopez, supra, at 564.

Thomas concurred with:

In Lopez, I argued that allowing Congress to regulate intrastate, noncommercial activity under the Commerce Clause would confer on Congress a general police power over the Nation. 514 U. S., at 584, 600 (concurring opinion). This is no less the case if Congress ties its power to the Necessary and Proper Clause rather than the Commerce Clause. When agents from the Drug Enforcement Administration raided Monson s home, they seized six cannabis plants. If the Federal Government can regulate growing a half-dozen cannabis plants for personal consumption (not because it is interstate commerce, but because it is inextricably bound up with interstate commerce), then Congress' Article I powers as expanded by the Necessary and Proper Clause have no meaningful limits. Whether Congress aims at the possession of drugs, guns, or any number of other items, it may continue to appropria[te] state police powers under the guise of regulating commerce. United States v. Morrison, 529 U. S. 598, 627 (2000) (THOMAS, J., concurring).

[Rich Lucibella]

On reflection, I think one of the Founders' only errors was in the appointment of lifetime Supremes by the Federal Executive. Obviously, the intent was sound: to provide a check which was immune to political or election pressures.

Unfortunately, we now see that this power can be subverted, either thru activist interpretation of the Constitution, ignorance of the document or the mere need for convenience in maintaining an "orderly" society.

Perhaps a better model would have been to populate SCOTUS with 10 year termed judges, nominated by each State Governor and selected by lottery. I no longer believe SCOTUS requires the brightest legal minds; it requires only the ability to read history in an impartial and non-passionate manner, recognizing that we are a federation of States, not a centralized monolith.
Rich

[Al Norris]

Rich,

I believe it was Jefferson that had some rather scathing remarks about the tyranny of the judiciary, and that after the opinion of Marbury v. Madison, which decision the Supreme Court gave itself the power of Judicial Review.

Regardless, it was during the Civil War when Lincoln suspended habeas corpus when he jailed political opponents for writing dissenting editorials about him. When the Court told Lincoln that he had no power to do that and that the publishers must be released, Lincoln told the Court, "It's your ruling, you enforce it!" Or words to that effect, IIRC.

The upshot is that the Court has never forgotten this slap in the face, because it truly has no power if the Executive will not enforce its rulings.

Current day example: Last Fall the 2nd Circuit Court sustained a writ of habeas corpus by the prisoners on Gitmo . The Government appealed to SCOTUS which denied cert. By law, the Circuit Courts order should have been followed. It wasn't (ahem, they are still there!) and the Courts are not making any more noise about this "little" item.....

Hmmmm...[places tin foil hat on head]... Could this current ruling be the tit-for-tat for compliance?... Nah, they would never do something like this... Would they?

[tyme]

This is even scarier than the court decision:
http://www.washingtonpost.com/wp-dyn...700284_pf.html

Gonzales and his aides were silent on the ruling Monday, but several Bush administration officials said individual users have little reason to worry. "We have never targeted the sick and dying, but rather criminals engaged in drug trafficking," Drug Enforcement Administration spokesman Bill Grant said.

"Even though we've gotten carte blanche to enforce federal laws banning evil items, don't worry. We're not going to go after you, just the scary people down the street. Nothing to see here. Move along."

The amount of power the government has amassed but is not exercising due to its.. what, benevolence? patience?... is staggering. One truly evil administration and a congressional majority too blind or scared to hold the line, and the few rights we seem to still have would disappear overnight.

[Rich Lucibella]

The ruling does not strike down California's law, or similar ones in Alaska, Colorado, Hawaii, Maine, Montana, Nevada, Oregon, Vermont and Washington state. However, it may hurt efforts to pass laws in other states because the federal government's prosecution authority trumps states' wishes.

Now, we all know the emphasized part to be the case. But how's that for a bit of NewSpeak. "The States are still Sovereign; except when the Federal Government disagrees."

Answer:
"Your legal activity in California is illegal in the United States. But don't worry, we won't enforce it."
Rich

[dolanp]

It really is disheartening. I've always thought 'If only a case like this could get to the Supreme Court, they would do the right thing and put an end to this federal policing power...' I guess I was way off base thinking this. Too much policy tied up in the decision.

I wonder, since this court doesn't want to touch the 2A, but will overturn GFSZA, yet won't touch drugs... would a court packed with liberals have allowed the marijuana but then turned around and legalized every federal gun-grabbing attempt?

Scary either way, but the tides may turn eventually.

[MicroBalrog]

The new version of the GFSZA baiscally cut highway funding for states that did not ban students from carrying guns in the school zones. It is still legal to allow, say, licensed adults to carry guns in them or such.

Cutting highway funding for states in case they refuse to do X or Y is not considered a violation of the 10th Amendment by the courts, and in fact states often refuse said funding if they want to do the thing the FedGov doesn't like. For example, note seatbelt laws in NH.

[Long Path]

Again, the Court brings up the feasibly of the Medical Necessity defense. Lord. It first mentioned that in the Oakland Cannibas Buyers Coop case in the '90s, and for some reason everyone pinned their hopes on it. Then Morrison confirmed the viability of Lopez (so we thought), and we ran with the Commerce Clause argument.

Dammit, it's a GOOD argument!

She grew it at home, smoked it at home, and never sold nor intended to sell a gram of it, yet because it's possibly a fungible item, the Wickard standard prevails.

Nevermind that Filburn actually DID barter some of his ill-grown wheat, that he was in fact a wheat farmer, who did in fact make his livelyhood off of that particular commidity that the Government was trying to prop up the prices of! Frankly, the Fed had a case (a weak one) with Wickard. But the dadgummed Aggragetion Principle ("think of the impact to the economy if EVERYONE did it!") just doesn't frickin' apply when the activity at bar is NOT economic, doesn't involve a person in that economy, and there is no "stream of commerce" (Swift)!

I may just work myself into a rant, here.

Damn, I'm furious.

And I still have to turn in a brief on this crap, from Raich's side, by August.

[shaggy]

But the dadgummed Aggragetion Principle ("think of the impact to the economy if EVERYONE did it!") just doesn't frickin' apply when the activity at bar is NOT economic, doesn't involve a person in that economy, and there is no "stream of commerce" (Swift)!

Yes, but if its part of a larger regulatory scheme that bears a substantial relation to commerce, it can still fall within the power of the commerce clause. In Raich, that regulatory scheme was the CSA. For Stewart its the NFA. No doubt mere possession (of pot, handguns in a school zone, or machineguns) is not an economic event that would not, without more, bring it under the power of congress to regulate through the commerce clause. The sticking point is that if mere possession of pot or machineguns was not able to be regulated through the commerce clause, it would frustrate the ends of the CSA (or NFA) which are both rationally related to the regulation of commerce. Since there was no overarching federal regulatory scheme rationally related to the regulation of commerce that would have been frustrated by allowing the mere possession of a handgun in a school zone that was beyond the scope of congress to legislate under the guise of the commerce clause.

And again, not that I like it, but I do understand it and think it was a completely foreseeable outcome.

[Al Norris]

Shaggy, as we both know, the Court could just have easily exempted Medical Marijuana use from the bounds of the CSA, as it pertains to the states themselves. Justice Thomas pointed this out, which I posted earlier. The Court was in no way bound to this rather sweeping power grab.

The ruling itself was simple. It was in the majorities dicta that the details become the devil. And this same dicta will be used as the basis for every subsequent usurpation of power by the Congress. The Court has laid out the road map upon which they have told the Congress how to enact law, that the Court will abide by, that will become ever more encompassing.

Part of the problem, if not the main problem itself, is the doctrine of Stare Decisis. The Courts hold this to be sacrosanct, when it is not. Precedence is good, only if used for the good.

But precedence has long been used to expand a little here, a little there, until we reach what we did yesterday. This is just the most glaring example of judicial activism yet. The Supreme Court, with its power of Judicial Review, is not bound by stare decisis, when such action conflicts with the Constitutional principles of enumerated federal powers as opposed to the powers and authorities of the states. The Court has shown that it no longer plays a part in the system of checks and balances, whether that balance is between the feds and the states or between the federal authorities themselves, or in protecting the rights of the people.

As Justice Thomas implied, the Constitution has been rewritten, not by Constitutional means, but by Judical fiat.

[publius42]

"In the first place it is to be remembered that the general government is not to be charged with the whole power of making and administering laws. Its jurisdiction is limited to certain enumerated objects, which concern all the members of the republic, but which are not to be attained by the separate provisions of any. The subordinate governments, which can extend their care to all those other subjects which can be separately provided for, will retain their due authority and activity."

[publius42]

More from Mr. Madison:

"With respect to the two words ‘general welfare', I have always regarded them as qualified by the detail of powers connected with them. To take them in a literal and unlimited sense would be a metamorphosis of the Constitution into a character which there is a host of proofs was not contemplated by its creators."

[Shorthair]

Main Entry: com·merce
Function: noun
1 : the exchange or buying and selling of goods, commodities, property, or services esp. on a large scale and involving transportation from place to place : TRADE 2 —see also COMMERCE CLAUSE Fair Labor Standards Act in the IMPORTANT LAWS section
Source: Merriam-Webster's Dictionary of Law, © 1996 Merriam-Webster, Inc.

I don't recall there ever being any exchange here, or buying or selling, just that the plaintiffs wanted to grow their own pot for medicinal consumption.
Forgive me, but if the SCOTUS accepts the notion that the substance is part of larger stream of commerce, it seems that they would have a difficult time squaring a conflict re: Wickard. Wheat was a regulated, legal substance, in the stream of regulated commerce (I have a hard time accepting the ruling from a philosophical perspective but understand how they got there) but commerce in pot is specifically prohibited. Any attempt to introduce it into the stream of commerce is simply not acceptable under current statute, and this exposes a weakness in the government's case. The gov't, in arguing the stream of commerce theory, creates a dichotomy by saying prohibited substances are part of a larger commerce stream. If the substance is to be regulated as commerce, then perhaps they should remove the prohibitions and tax it like they do the rest of the economy.
Are the prohibitions against and regulation of fully automatic firearms found in the, say GCA of '68, upheld only under the commerce clause? It seems to me that the stare decisis argument and ruling in this case is intellectually lazy and rife for further controversy, and that it demonstrates the weak legal and logical underpinnings of the prohibition of pot. In fact, it seems to reject the limits on the CC found in Lopez and Morrison.
I agree with Clarence Thomas here. As such, I'm determined to make an egg and sausage muffin this morning, no matter how much it may potentially hurt McDonald's, and I will even customize my own Mauser, just so I don't have to give Remington any $ for a new one.

[publius42]

In fact, it seems to reject the limits on the CC found in Lopez and Morrison.

Certainly seems that way to me. In Lopez, they said that being near a school w/a gun was an activity too far removed from commerce to be regulated as commerce. OK, makes sense.

But if growing a cannabis plant or building a machine gun for yourself are close enough to interstate commerce to be a national concern, and not "objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State," why were both originally regulated under the power to tax, not the commerce clause? And why did alcohol prohibition require an amendment, when clearly the same commerce clause argument used in Raich would apply to moonshiners?