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:: A constitutional law blog by Scalia/Thomas fan David M. Wagner, M.A., J.D., Research Fellow, National Legal Foundation, and Teacher, Veritas Preparatory Academy. Opinions expressed here are those of the author and do not reflect those of the NLF or Veritas. :: bloghome | E-mail me ::

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    :: Monday, June 06, 2005 ::
    Bad dream: in Gonzalez v. Raich, Court turns Lopez and Morrison into outliers, bolsters the nonsensical "aggregation" doctrine of Wickard -- and does all this with a Scalia concurrence!

    Dissents are provided by Justices O'Connor and Thomas, with the Chief and Thomas concurring in most of O'Connor's dissent.

    This is the much-discussed "medical marijuana" case, but I am one of those who have seen it along as primarily a Commerce Clause case, posing not the question, is medical marijuana a good idea, but the question, will the Court's recent rediscovery of judicially enforceable limits on Congress's Commerce Clause powers continue, or be halted? The answer: halted, with a Scalia concurrence.

    Keep in mind that the case deals with the federal Controlled Substances Act as applied not only to economic transactions, but also to acts that the Court and Justice Scalia admit are non-economic, such as personal possession of marijuana, analogously to the possession of firearms in Lopez.

    So, what does Our Hero have to say for himself?
    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. This statement referred to those cases permitting the regulation of intrastate activities “which in a substantial way interfere with or obstruct the exercise of the granted power.” Wrightwood Dairy Co., 315 U.S., at 119; see also United States v. Darby, 312 U.S. 100, 118—119 (1941); Shreveport Rate Cases, 234 U.S., at 353. As the Court put it in Wrightwood Dairy, where Congress has the authority to enact a regulation of interstate commerce, “it possesses every power needed to make that regulation effective.” 315 U.S., at 118—119.
    Now, it's one thing to accept the Shreveport Rates doctrine that a proper federal regulatory scheme may reach intrastate economic activity, but another, imho, to accept supinely the New Deal add-on to Shreveport, as Our Hero does:
    As the Court said in the Shreveport Rate Cases, the Necessary and Proper Clause does not give “Congress … the authority to regulate the internal commerce of a State, as such,” but it does allow Congress “to take all measures necessary or appropriate to” the effective regulation of the interstate market, “although intrastate transactions … may thereby be controlled.” 234 U.S., at 353; see also Jones & Laughlin Steel Corp., 301 U.S., at 38 (the logic of the Shreveport Rate Cases is not limited to instrumentalities of commerce).
    O.H. then addresses the dissenters:
    Today’s principal dissent objects that, by permitting Congress to regulate activities necessary to effective interstate regulation, the Court reduces Lopez and Morrison to “little more than a drafting guide.” Post, at 5 (opinion of O’Connor, J.). I think that criticism unjustified. Unlike the power to regulate activities that have a substantial effect on interstate commerce, the power to enact laws enabling effective regulation of interstate commerce can only be exercised in conjunction with congressional regulation of an interstate market, and it extends only to those measures necessary to make the interstate regulation effective. As Lopez itself states, and the Court affirms today, Congress may regulate noneconomic intrastate activities only where the failure to do so “could … undercut” its regulation of interstate commerce. See Lopez, supra, at 561; ante, at 15, 21, 22. This is not a power that threatens to obliterate the line between “what is truly national and what is truly local.” Lopez, supra, at 567—568.
    If there's anything I like less than Justice Scalia being wrong, it's Justice O'Connor being right. But imo her response to the foregoing is spot-on:
    Until today, such arguments have been made only in dissent. See Morrison, 529 U.S., at 657 (Breyer, J., dissenting) (given that Congress can regulate “ ‘an essential part of a larger regulation of economic activity,’ ” “can Congress save the present law by including it, or much of it, in a broader ‘Safe Transport’ or ‘Worker Safety’ act?”). Lopez and Morrison did not indicate that the constitutionality of federal regulation depends on superficial and formalistic distinctions. Likewise I did not understand our discussion of the role of courts in enforcing outer limits of the Commerce Clause for the sake of maintaining the federalist balance our Constitution requires, see Lopez, 514 U.S., at 557; id., at 578 (Kennedy, J., concurring), as a signal to Congress to enact legislation that is more extensive and more intrusive into the domain of state power. If the Court always defers to Congress as it does today, little may be left to the notion of enumerated
    I could do without the scornful references to "superficial and formalistic distinctions." Law as such is full of those, and Justice O'Connor's tendency to belittle them is not her most endearing habit. But today she's right.

    Justice Thomas, for his part, reiterates the prophetic view from his concurrence in Lopez, that a clear commerce/manufacture distinction is key to the original meaning of the Commerce Clause, as the Court held in 1895 in E.C. Knight:
    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).

    :: David M. Wagner 1:37 PM [+] ::

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