:: Ninomania ::

:: Wednesday, June 08, 2005 ::

Raich -- the morning after

Many thanks to the many who discussed my "Bad dream" post about Raich yesterday, e.g. Howard Bashman, Peter Sean of Lex Communis (also here), Eve Tushnet, and Marty Lederman, writing at Scotusblog.

Am I going to give this blog a new name? Marty suggested "Clarencemania." Hmm. How about "Better than Toast"? (Does anyone remember that Thomas's English Muffins ad campaign from about 20 years ago -- "Thomas's is better than toast"?) And you'll notice that there is, and always has been, a link in my margin to the Justice Thomas Appreciation Page.

But no -- no changes here. On issues concerning the scope of federal power, Scalia has in general been a consistent New Deal Justice, full of the Spirit of '37. His critique of Humphrey's Executor in his Morrison v. Olson dissent blasted H.E. as "considered at the time the product of an activist, anti-New Deal court," and nothing in that dissent suggests that he does not share that view. (To be sure, Humphrey's Executor can never be sufficiently condemned, but I'm not sure I, personally, would have listed its anti-New Deal nature as one of its vices. In fact, I don't think H.E. is "anti-New Deal" at all, though it was anti-FDR -- but I digress.)

Scalia's Raich concurrence is also unsurprising in light of his opinion for the Court in Whitman v. American Trucking. When I published a little reflection on that case myself -- 11 Baltimore J.Env.L. 25 (2003) -- I confined myself to its positive aspect, namely, its two-fisted rejection of the Sunsteinian "new non-delegation doctrine," under which the non-delegation doctrine leaves Congress free to delegate as much as it likes, while the agencies police their own use of those powers, and the courts police the agencies' self-policing.

But American Trucking also has what I might call a "dark side," namely, its uncritical reliance on New Deal-era delegation decisions that find that phrases such as "in the public interest" give agencies sufficient guidance so that we cannot say that lawmaking has been delegated. Uh huh, and blackbirds can fly to Jupiter.

My point here is, if those 1940s delegate-your-buns-off cases are good law, there's no reason by Wickard isn't too. Except -- they shouldn't be, and it shouldn't.

For further clarification on why I remain a Ninomaniac, come to SEAALS this year and listen to my paper on "Justice Scalia and the Jurisprudence of Tradition."

:: David Wagner 2:04 PM [+] ::
...

:: Monday, June 06, 2005 ::

The Court's other opinion today, Spector v. Norwegian Cruise Line, produced one of these:

Kennedy, J., announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, II—A—1, and II—B—2, in which Stevens, Souter, Ginsburg, and Breyer, JJ., joined, an opinion with respect to Parts II—A—2, II—B—1, II—B—3, and III—B, in which Stevens and Souter, JJ., joined, and an opinion with respect to Part III—A, in which Stevens, Souter, and Thomas, JJ., joined. Ginsburg, J., filed an opinion concurring in part and concurring in the judgment, in which Breyer, J., joined. Thomas, J., filed an opinion concurring in part, dissenting in part, and concurring in the judgment in part. Scalia, J., filed a dissenting opinion, in which Rehnquist, C. J., and O’Connor, J., joined, and in which Thomas, J., joined with respect to Part I—A.

And a good time was had by all.

:: David Wagner 10:46 PM [+] ::
...

On a happier note than just below, I've just returned from the 15th annual conference of University Faculty for Life, held this year at Ave Maria School of Law.

This is an organization that deserves to be better known. It is not just for law profs, and I benefited from interacting on pro-life issues with philosophers, nursing teachers, literary scholars, communications profs, and at least one Straussian!

:: David Wagner 4:04 PM [+] ::
...

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
powers.

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

:: Thursday, June 02, 2005 ::

For Smith and against wimpy Christians: a rant

I've just learned from a Foxfire book that Appalachian sheriffs rarely felt any need to take directly into custody the men they caught moonshining. They'd just ask the gentlemen in question to present themselves, at their convenience, down at the courthouse -- and they did. Then they would pay their fines and move on. The alternative -- absconding -- would cause them to lose face with their highly honor-conscious Scots-Irish communities.

This made me think of the fracas over Employment Division v. Smith. One of the reasons this decision is the greatest thing since sliced bread is that it treats religious believers with the level of respect with which those sheriffs treat the moonshiners. And it pains me that so many religious believers do not want that level of respect -- glorying in being less respectful of the community's laws than moonshiners are! -- and instead prefer to believe that the Constitution requires that they be treated differently from other citizens, not just as regards worship (as to which they are right), but across the board.

Contrary to the propoganda, Smith does not mean you can't follow your conscience. It just means that, in certain circumstances, if you do so, you may go to jail. For the life of me I can't see the biggie about that. Do you have these convictions, or not? If you do, why aren't you glad to suffer for them? (Act 6:41).

When Christians face jail for refusing to violate their consciences, the proper course of action is to agitate for changes in the law, not to sue for an exemption from it -- an exemption, not incidentally, that leaves the offending law standing.

The early Christians often went to far worse than jail. They would be sick to see that their spiritual descendants are such whiners. Even Thoreau knew that committing civil disobedience meant accepting the consequences of civil disobedience. Christians less courageous than Thoreau? No wonder we're behind the eight ball in the culture wars.

:: David Wagner 10:13 PM [+] ::
...

:: Tuesday, May 31, 2005 ::

Justice Thomas: Establishment Clause is a federalism provision

The Court has unanimously upheld the prison section of RLUIPA against an Estabishment Clause challenge. Justice Ginsburg wrote for the entire court, but Justice Thomas concurred to add:

Even when enacting laws that bind the States pursuant to valid exercises of its enumerated powers, Congress need not observe strict separation between church and state, or steer clear of the subject of religion. It need only refrain from making laws “respecting an establishment of religion”; it must not interfere with a state establishment of religion. For example, Congress presumably could not require a State to establish a religion any more than it could preclude a State from establishing a religion.

Now, before you conclude that Thomas would give a bright-green light to state establishments of religion, note that he also says, concerning the challenged section of RLUIPA, that it

does not prohibit or interfere with state establishments, since no State has established (or constitutionally could establish, given an incorporated Clause) a religion.

Otoh, he does not endorse the notion of "an incorporated [Establishment] Clause."

:: David Wagner 12:13 PM [+] ::
...

:: Wednesday, May 25, 2005 ::

More on the deal

Well, the Washington Post is sure -- and wants you to be sure -- that the fight over the legitimacy of the judicial filibuster is over and the Democrats have won. ("With the Senate filibuster dispute behind it, the White House is bracing....") With that, it lists the potential nominees President Bush could send into the 35-vote Minority of Death:

Among those most often mentioned by insiders are Judges J. Michael Luttig and J. Harvie Wilkinson III of the U.S. Court of Appeals for the 4th Circuit; John G. Roberts of the D.C. Circuit; Michael W. McConnell of the 10th Circuit; Emilio M. Garza of the 5th Circuit; former solicitor general Theodore B. Olsen; and former deputy attorney general Larry D. Thompson.

Meanwhile, The Union-Leader, the conservative daily in the key presidential primary state, takes Frist to the woodshed.

The filibuster's honorable history is in the arena of controversial legislation. Its use against judicial nominations, at any level, is virtually unprecedented and utterly illegitimate.

:: David Wagner 12:35 AM [+] ::
...

:: Tuesday, May 24, 2005 ::

The deal

First: Nothing that gets Owen, Brown, and Pryor through is all bad. There are more nominees being inexcusably blocked, but these three were well-chosen for frontloading.

Second: A game can be won by repeated goal-line stands that result only in a field-goal (three points, three judges, get it?). The key word, though, is repeated. Frist has to charge to goal line again, and it's not clear that he will. NRO says: "The Republicans who signed the deal appear to have committed to allowing filibusters throughout this Congress."

They just better had not, especially if, as seems increasingly likely, there is a Supreme Court resignation this summer.

Frist thinks he can be a serious presidential candidate in 2008. For that, he needs A+ on judges. The deal is not his doing, but if he fails to charge the goal-line again -- bring the Senate to the brink of serious filibuster, and over it if need be -- he will have failed on this issue.

:: David Wagner 9:56 PM [+] ::
...

The Perfect Storm:

* Rehnquist goes to nurse's office
* Supreme Court takes its first abortion case in five years
* Senate leaves judicially filibuster mostly untouched but still challengeable

:: David Wagner 9:23 PM [+] ::
...

:: Monday, May 23, 2005 ::

What will I blog about when I have time to blog again?

* Granholm v. Heald, the wine decision
* The latest on Dr. Filibuster's All-Heat No-Vote Fireworks
* Briefs and arguments in the Ten Commandments cases

:: David Wagner 10:56 AM [+] ::
...

:: Wednesday, May 18, 2005 ::

A (temporary) deal on judges?

In the proposal under discussion, Democrats would agree to allow up-or-down votes on as many as five of the seven nominees they previously blocked. That would require the six Democrats to vote with Republicans to end debate on each nominee in a procedural move known as cloture, which requires 60 votes.

The Democrats would reserve their right to filibuster future nominees -- including a potential Supreme Court nominee -- but would agree that they would use that right only in the most extreme cases. In exchange, six Republicans would agree to vote against Frist's rule change during this congressional session.

OK, as long as (1) that's five, not "as many as five"; (2) Republicans do not agree in principle that any judicial nomination, least of all one to the Supreme Court, may be filibustered; and (3) the Democrats vote first.

:: David Wagner 12:48 AM [+] ::
...

:: Tuesday, May 17, 2005 ::

For my sins, I've just been on NPR again.

Look, the Death-Left should make up its mind: either the Bible says nothing about abortion, in which case legislating against abortion has nothing to do with "enforcing Biblical morality," or it does, in which case Christians who favor a liberal abortion regime have some explainin' to do.

On this broadcast, Paul Simmons, of Americans United for the Separation of Church and State, and a true lightweight, went out of his way to assert that the Bible says nothing about abortion. If he ever got around to explaining how, in that case, the pro-life movement represents an illicit mixing of religion and politics, I sure didn't hear it. I would very much have liked to, and said so more than once.

I know the Biblical pro-life texts fairly well, but somehow I think that getting drawn into a proof-text-fest is a trap. Instead, if you hear the "Bible doesn't condemn abortion" meme, come back with "Well in that case, pro-lifers can't be accused of mixing religion and politics." Keep doing it until they stop.

Oh, and the part about how we want to revive Puritan Massachusetts? Familiarize yourselves with some of the seemier side of that regime (e.g. they burned a Quaker or two), and express how angry you are that you're being accused of wanting to revive that. Your opponent will reel backwards, as Mr. Simmons did, even to the point of denying, as Mr. Simmons did, that he did, in fact, just accuse you of wanting to revive Puritan Massachusetts.

(Ironically, Massachusetts is still puritanical, in a way: it just does it in service of a different religion. The "we're the elect" mindset doesn't go away, even when the underlying worldview does a 180.)

Several of our callers were people who just "know" Christianity is a lot of hooey, because of their "experience" with it. I guess this is one style of postmodern epistemology: we can know only our own experiences, but we can generalize freely from them. One of my young colleagues in marketing was visibly upset. "I've never put my faith in men," she said (meaning human beings!), "so when a minister or a youth pastor messed up, I wasn't surprised, and I certainly didn't think it meant God had messed up. But some of these people...."

:: David Wagner 1:57 PM [+] ::
...

:: Monday, May 16, 2005 ::

According to this blogger, Hugh Hewitt said on his radio show:

Benedict the Sixteenth announced opening of the cause for Beatification of John Paul the Second. He is waiving the normal waiting period of five years - which means you can now become a saint quicker then you can be confirmed a federal judge.

:: David Wagner 12:44 AM [+] ::
...