A draft of my forthcoming Cornell Journal of Law & Public Policy symposium article on Gonzalez v. Raich (the medical marijuana case) is now available at SSRN. Longtime VC readers and con law mavens may be interested to know that the article to some extent takes issue with the somewhat less pessimistic interpretation of Raich advanced by co-blogger Randy Barnett here.
Here's the abstract:
The Supreme Court's recent decision in Gonzales v. Raich marks a watershed moment in the development of judicial federalism. If it has not quite put an end to the Rehnquist Court's "federalism revolution," it certainly represents a major step in that direction. In this Article, I contend that Raich represents a major - possibly even terminal - setback for efforts to impose meaningful judicial constraints on Congress' Commerce Clause powers.
Raich undermines judicial enforcement of federalism in three interlocking ways: by adopting an essentially limitless definition of "economic activity" thereby ensuring that virtually any activity can be "aggregated" to produce the "substantial affect [on] interstate commerce" required to legitimate congressional regulation under Lopez v. United States and Morrison v. United States; by making it easier for Congress to impose controls on even "noneconomic" activity by claiming that it is part of a broader "regulatory scheme"; and finally, by restoring the so-called "rational basis" test . . . The Supreme Court's recent seemingly pro-federalism decisions in Gonzales v. Oregon and Rapanos v. Army Corps of Engineers actually do little or nothing to mitigate the impact of Raich.
I also contend that the Raich decision is misguided on both textual and structural grounds. The text of the Constitution does not support the nearly unlimited congressional power endorsed in Raich. Such unlimited power also undercuts some of the major structural advantages of federalism, including diversity, the ability to "vote with your feet," and interstate competition for residents.
Raich's undercutting of federalism by upholding the power of Congress to ban the possession of homegrown medical marijuana closely parallels legal developments during the Prohibition era of the 1920s. In both periods, the establishment of a nationwide prohibition regime greatly eroded decentralized federalism, in part because the Supreme Court accepted the government's claims that the power to regulate a market in prohibited substances necessarily required comprehensive regulation of virtually all sale or possession of the commodities in question.
The future of judicial federalism may depend not just on the precise doctrinal impact of Raich, but on the possibility that liberal jurists and political activists may come to recognize that they have an interest in limiting congressional power. A cross-ideological coalition for judicial enforcement of federalism would be far more formidable than today's narrow alliance between some conservatives and libertarians. Ironically, the Raich decision, in combination with other recent developments, may help bring about such a result.
The same is true for conservatives' supposed support for "getting government off our backs." The Cato Institute opposes governmental interference with our sex lives and with what drugs we take, but no prominent conservative politician ever has.
Sadly, none of these people--as ably discussed in the first two comments--make "policy" (if policy-making even takes place) in this administration or did so in the Reagan/Bush I years.
For example, IMO, the decision-makers in Bush II care about tort reform solely to shrink the contribution base for the Democrats. Values issues are discussed to move the base to the ballot box. Issues of terrorism are framed to marginalize Democrats.
We are watching the cynical discarding of the Constitution right now.
It is hard for me to take your reaction and Randy's reaction all that seriously. It reads more as bitterness over the Supreme Court refusing to legalize marijuana (in allowing individual states to do it) rather than a real concern about federalism.
You may be super-idealistic about the Court (although I think a trend on this blog is to be realistic about the Court) and I think we all know that outside the libertarian community drugs are seen as a very bad thing and something to be discouraged.
I mean, if you want strong evidence that our political branches take illegal drug use very seriously just look at the failed nomination of Douglas Ginsburg by Reagan.
Raich will have limited precedential value. The only possible thing stopping the expansion or continuation of Lopez/Morrison is the extent to which Roberts and Alito hold similar positions on federalism as their predecessors (I would wager they are equally pro-federalism).
Could you please show me where the constitution says "drugs are different"
Raich gutted federalism, conservatives realize this.
Hypocrites who call themselves conservatives ignore the gutting of federalism because the decision enforced a policy they liked. These same hypocrites also ignore the negative impact the ruling will have on a host of other conservative principles and policies.
It's not about legal reasoning and law; it's about power.
The ability to accept a defeated argument is the sign of a good person. The need to keep fighting is (often, not always) the sign of a monster-wannabe.
Being able to tell the difference is left to those of us at the ballot box.
Laissez-faire crap born of bitter experience of a government with said police powers.
Laissez-faire crap born of bitter experience of a government with said police powers.
Of course there have been many situations where the bitter experience is with state and local police power. Does the name "Bull Connor" ring a bell?
From an originalist point of view, though, this is an improper use of the NAP, which was designed to be no more than a rule of construction to clarify that the Constitution (unlike the Articles of Confederation) incorporated the common law doctrine of implied incidental powers. But the common law doctrine was limited by the rule that an incidental power couldn't be more important ("worthy" was the term sometimes used) than its principal, which, of course, cases like Raich have the effect of doing.
Doctrine aside, I'm somewhat more optimistic than several contributors are. You wouldn't know it to look at the U.S. but there really is a worldwide trend going on toward decentralization, and there are good underlying reasons for this to which the U.S., in the medium to long run, is not immune.
Those interested in the original scope of the Commerce Power are invited to check out my recently completed articles on SSRN: "The Legal Meaning of 'Commerce' in the Commerce Clause" and "It's Incidental: Fixing the Commerce Power."
I am not saying that the Constitution says "drugs are different." I am saying that Ilya, Randy, et al are being silly and that they know this case is going to be irrelevant to whether or not the Court in the future restricts the meaning of the Commerce Clause. If anything, they should've been heartened they got Rehnquist, O'Connor, and Thomas in dissent in Raich because of the subject matter of the case.
Did anyone doubt Rehnquist's conviction toward sovereign immunity after his opinion in Nevada v. Hibbs? Of course not. Only a person who wants to set up strawmen (if you do not vote my way in Raich then you are not cool enough to say you support a limited view of the Commerce Clause) would have said "since Rehnquist did not vote our way in Hibbs he must basically be like Souter in terms of the Amendment."
But it is not correct to say that it is ALWAYS just a cover for some other agenda. In Raich itself, Rehnquist and O'Connor dissented despite their distaste for drugs (O'Connor went out of her way to note this in here opinion). Stevens, by contrast, wrote the majority opinion despite his evident sympathy for the medical marijuana users.
In the article, I explain why both liberals and conservatives may, over time, have reasons to support consistent judicial limits on federal power. No one is likely to do so because they value federalism per se. But they may do so because a system of limited federal power serves their interests better over the long run than one where Congress can regulate pretty much anything it wants.
Even if hostility to drugs were the subjective motivation of the justices who voted in the majority (and it was probably only one of several motives), lower courts still have to follow the precedent as written. And they have already applied Raich to uphold fairly extreme assertions of federal power on matters far removed from illegal drugs. I cite several such examples in the article.
The majority justices could perhaps have written an opinion limiting Raich's impact to illegal drugs, but they clearly chose not to do so.