an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman marty.lederman at comcast.net
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
The Supreme Court upheld Congress' power under the Commerce Clause to regulate small amounts of marijuana used for personal medical purposes. The vote was 6-3, with Justice Stevens writing the majority opinion, Justice Scalia writing an opinion concurring in the judgment, and Justice O'Connor writing a dissent, joined by the Chief Justice and Justice Thomas. Justice Thomas also wrote a separate dissent. The Court reaffirmed Congress's extensive power, recognized in Wickard v. Filburn, to regulate the cumulative effects of intrastate activities like growing marijuana for personal use on interstate commerce.
The case turned on an ingenious argument by the plaintiffs: they defined a class-- medical marijuana for personal use as authorized by state law-- and argued that because this class was analytically distinct and had no significant cumulative effects on interstate commerce it was not within Congress's Commerce power. The majority rejected the argument; the fact that one can imagine such carveouts does not require the Congress must exempt them, nor does the Constitution withdraw these carveouts from the Commerce Power. If purely intrastate activity comes within a more comprehensive general scheme of regulation, Congress may reach it under its Commerce Power. Justice Scalia puts the matter somewhat differently: he points out that Congress has the power under the Necessary and Proper Clause to reach intrastate activity, even if it is not economic in character, if failure to reach this activity would frustrate Congress's goals of facilitating, regulating, or prohibiting a more general class of interstate commerce. Thus, Scalia argues that even if homegrown medical marijuana for personal use is not commerce and is not even economic activity, Congress could reasonably conclude that including it in the general prohibition would facilitate Congress's general policy of regulating controlled substances, and that failing to include homegrown medical marijuana would frustrate Congress's policy objectives. In some ways Scalia's argument is more modest than that of the majority, but in other ways his point gives Congress even greater powers to reach noneconomic activity.
Raich distinguishes Morrison and Lopez on the grounds that the activities regulated in those cases (guns near schools and violence against women) were not part of a more general regulatory scheme that was primarily aimed at economic activity.
The effect of Raich's distinction of Lopez and Morrison is that Congress may not "grandstand" by picking out particular instances of non-economic local conduct and regulating them (a point that, I believe, applies more properly to Lopez than to Morrison). Instead, Congress must aim at and produce comprehensive schemes of regulation of economic activity. This "anti-grandstanding" rule may have interesting effects on the collations necessary to get legislation passed. The broader the scheme, the more likely there will be resistance, so what I am calling the "anti-grandstanding" doctrine puts a modest constraint on regulation.
If Congress does pass a comprehensive scheme, however, the Court will uphold it, even if it reaches intrastate activities, and clever plaintiffs like those in Raich may not come up with carveouts and assert that these are beyond the Commerce Power.
The problem, of course, is that clever logic chopping was all that was left, once the Supreme court with Filburn rejected the obvious: That the power to regulate interstate commerce is the power to regulate ...interstate commerce... and nothing else.
Either Filburn falls, or Congress is logically capable of regulating everything under the sun. And the current majority on the Supreme court aren't interested in repudiating Filburn, even if just about everybody understands that it eviserated the Constitution's whole scheme of enumerated powers.
They kinda like that aspect of the Constitution being defunct.
I understand that an early goal of Randy Barnett was to neutralize Scalia's slippery slope dissent in Lawrence v. Texas. While Scalia's concurring opinion in Raich did not seem to focus upon the slippery slope, perhaps it was in the back of his mind as he maneuvered around Stevens' reasoning. The LATimes has a good editorial this morning on Raich: It's time for Congress to provide relief.
Good news! See this quote from John Walters, the Bush administration's "drug czar," whose official title is Director of National Drug Control Policy:
"To date, science and research have not determined that smoking a crude plant is safe or effective," his official statement said. "We have a responsibility as a civilized society to ensure that the medicine Americans receive from their doctors is effective, safe and free from the pro-drug politics that are being promoted in America under the guise of medicine."
Know what that means? Why, the Drug Czar has _right there_ said that we need more science and research to prove smoking the crude plant is effective! Is he calling for federal funding? Suggesting that more studies be greenlit?
Well, no, he's probably just hiding behind the obvious result of decades of official disapproval for MJ: everyone can know the truth but almost no science gets funded that could prove the administration's claims to be overblown or false.
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