SCOTUS decision in Raich is out.

[shaggy]

And apparently the federal regulation of pot is not beyond the scope of the Commerce Clause. So much for Stewart.

I haven't been able to find a copy of the opinion yet, but if someone else can find it, please post it.

[dolanp]

Yup, growing some pot in your house for your own use is now 'interstate commerce'. Isn't that just grand? Supreme Court justices, bought and sold.

[shaggy]

Well, I wouldn't say bought & sold. If you look at the caselaw, its not a surprising outcome. I'm certainly not surprised, but I would like to see the opinion for the logic behind it. From what I understand they really had a hard time explaining away Wickard in oral arguments.

[dolanp]

They knew who their masters were so they had to keep in line with the conservative drug policy agenda. These are the same justices who overturned Gun Free School Zone Act on the basis that the feds don't have authority to regulate it since it isn't interstate. There is no explanation for the duality except allegiance to politics.

[shaggy]

Have you read Wickard v. Filburn?

[MicroBalrog]

Shaggy: Have you read Lopez vs. US?

I wonder if this means Stewart vs. US is screwed, too.

[shaggy]

Yes, I have read Lopez. Your point?


Don't misunderstand me; its not that I like the outcome here, but knowing the existing caselaw and being the cynic I am I really didn't see the Court making a radical departure from the current interpretation of the Commerce Clause.

[Wildalaska]

Untill someone reads the case, polemics are not useful


WildiwithholdjudgementAlaska

[shaggy]

Read it and weep...

SCOTUS opinion

[tyme]

To support their contrary submission, respondents rely heavily on two of our more recent Commerce Clause cases. In their myopic focus, they overlook the larger context of modern-era Commerce Clause jurisprudence preserved by those cases. Moreover, even in the narrow prism of respondents’ creation, they read those cases far too broadly. Those two cases, of course, are Lopez, 514 U.S. 549, and Morrison, 529 U.S. 598. As an initial matter, the statutory challenges at issue in those cases were markedly different from the challenge respondents pursue in the case at hand. Here, respondents ask us to excise individual applications of a concededly valid statutory scheme. In contrast, in both Lopez and Morrison, the parties asserted that a particular statute or provision fell outside Congress’ commerce power in its entirety. This distinction is pivotal for we have often reiterated that “[w]here the class of activities is regulated and that class is within the reach of federal power, the courts have no power ‘to excise, as trivial, individual instances’ of the class.” Perez, 402 U.S., at 154 (emphasis deleted) (quoting Wirtz, 392 U.S., at 193); see also Hodel, 452 U.S., at 308.

then later

Unlike those at issue in Lopez and Morrison, the activities regulated by the CSA are quintessentially economic. “Economics” refers to “the production, distribution, and consumption of commodities.” Webster’s Third New International Dictionary 720 (1966).

Nevermind that the constitution doesn't contain the word "economics" or "economic." It only talks about commerce, which to me is a much less theoretical word, and doesn't include production. Does anyone have an 18th century definition of "commerce" and "economics" handy?

The core of the decision is that marijuana production is somehow economic in a way that carrying a gun in a school zone, or rape, is not. It would be interesting if another case similar to Morrison came up, and it was argued that rape was production of foetuses (optionally to be aborted! :uhoh: )...

The contortions the SCOTUS goes through to make decisions these days would be laughable if they weren't so disastrous in their effects on honest citizens.

[publius42]

The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will, for the most part, be connected. The powers reserved to the several States will 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. The operations of the federal government will be most extensive and important in times of war and danger; those of the State governments, in times of peace and security.

...
If the new Constitution be examined with accuracy and candor, it will be found that the change which it proposes consists much less in the addition of NEW POWERS to the Union, than in the invigoration of its ORIGINAL POWERS. The regulation of commerce, it is true, is a new power; but that seems to be an addition which few oppose, and from which no apprehensions are entertained.

Few and defined = just about anything.

So much for the argument that Scalia is a strict constructionist, or that we need more like him, or that drug war precedents do not spread to affect gun rights. All are revealed as BS today.

[Spotted Owl]

If the Commerce Clause were to be interpreted in a logical fashion, the basis of much of the federal governement's power would collapse.

[shaggy]

If the Commerce Clause were to be interpreted in a logical fashion, the basis of much of the federal governement's power would collapse.

Which is in part why I am not surprised by the outcome. Wickard has been good law since it was decided in 1942. (And I mean "good" in the sense it hasn't been overruled, not that its how it should have been decided in the first place.) Anyone who thought the SCOTUS was going to radically change directions after 63 years of federal legislation and regulatory agencies premised on that interpretation of the Commerce Clause needs to remove the rose colored glasses.

[Wildalaska]

Hmm Ive briefly perused the decsion and see no reason to weep as it appears sound

Will analyze it more later

WildneedstostudyAlaska

[shaggy]

Hmm Ive briefly perused the decsion and see no reason to weep as it appears sound

Sound based upon the principle of stare decisis? Yes, but troubling nonetheless. You do know the ramifications this will have with respect to US v. Stewart and 922(o) (ie. the 1986 machinegun ban)?

[dolanp]

In a nutshell they basically said that marijuana sales are a lucrative market (wait, how can that be if it's illegal?? oh yeah...), that they wouldn't be able to tell the source of the marijuana (and that matters how...?), and that it is 'too close' to the market in that personal marijuana could be injected into the illegal market without much effort (uh oh, guns anyone?)... so through a bunch of legalese and saying 'well this part is similar to this other decision, which was similar to this other decision, etc', they have decided non-commercial intrastate marijuana is now affecting interstate commerce. The commerce, mind you, which is illegal. This is illegal because it could affect illegal interstate commerce.... just think about that.

As Justice Thomas pointed out in his dissent, they have basically given the government carte-blance to regulate anything.

Sad thing is most people won't care about this at all. They will read the article briefly and say 'Yeah well of course marijuana is illegal! Duh did these California hippies think the law doesn't apply to them??' because the average sheeple doesn't know anything about the Constitution except 'I plead the 5th, where's my phone call!'

[tyme]

U.S. v. Stewart is dead in the water. A federal law against carrying machineguns into state courthouses might be unconstitutional, because carrying something around isn't [yet] considered to be commerce [by the supremes], but manufacture of goods is, and thus can be regulated sayeth the majority of the 9 black-robed clowns in D.C.

Wildalaska, in your studies, you may wish to return to the text of the Constitution, which sayeth thusly:

[Congress has the power] To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;

In 1789, the word "regulate" did not mean "ban or do whatever else we feel like," though the word has taken on that meaning today. The dictionary definition of "commerce" does not include manufacture/production of goods, as the term "economics" does; the fact that the majority quoted the definition of "economics" in their decision shows that they are not able to comprehend differences in meaning among quasi-synonyms (if the were real synonyms, they would have more similar definitions). Commerce is limited to buying and selling. Even if something affects commerce (and just about everything does, including the phase of the moon), it cannot be constitutionally regulated unless it is commerce.

The commerce clause when written was intended to prevent states from setting up import/export monopolies, tariffs, and things of that nature that could give states an economic advantage over other states, or that could be used vindictively to hurt other states. It was not meant to be a hammer the federal government could use to smash any commercial transactions they didn't like.

Federal jurisprudence is completely out of control, and the fact that anyone, particularly intelligent people, accept it at all is a sign of how intellectually bankrupt society has become.

[publius42]

Will analyze it more later

WildneedstostudyAlaska

While you're at it, I'd be interested in what was wrong in Thomas' dissent.

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?

[Al Norris]

Gonzales v. Raich

Held: Congress' Commerce Clause authority includes the power to prohibit the local cultivation and use of marijuana in compliance with California law.
352 F. 3d 1222, vacated and remanded.

Stevens delivered the opinion with Kennedy, Souter, Ginsburg, and Breyer joined. Scalia concurred in a separate opinion.

O'Conner dissented in which Rehnquist and Thomas joined. Thomas filed a separate dissenting opinion.

The Court explicitly acknowledges that for the first century, use of the Commerce Clause was to preclude the states from discriminating against one another and affecting real interstate commerce, and then goes on to show how this morphs into discriminating against the states by the feds, as it reaches further and further into intrastate commerce.

Once again, the Court dances around what it calls "the power to regulate activities that substantially affect interstate commerce" to include the absolute minimal affect of activities and that these activities (the de minimus character) are of no consequence (see Westfall v. United State, 274 U.S. 256, 259 [1927]) and also Wickard v. Filburn). Yet the Court specifically avoids that part of the Agricultural Adjustment Act (see Wickard) that explicitly kept from Government action those private farmers that harvested less than 200 bushels or farmed 6 acres or less (Filburn did not fall into this category). Completely disingenuous, when arguing the merits of "substantial effects" as applied to the Controlled Substances Act.

Then, in part IV (page 23 of the slip opinion PDF, 1st paragraph) the court intones, "In thier (the respondents) myopic focus, they overlook the larger context of modern-era Commerce Clause jurisprudence preserved by those cases. Moreover, even in the narrow prism of respondents' creation, they read those cases (Lopez and Morrison) far too broadly." Excuse me? Pot, meet kettle!

Page 28 of the PDF, the majority begin to attack the dissenting opinions! Isn't it normally the job of dissent to attack the majority? Is the majority so unsure of themselves that they fall prey to ad hominems? Unbelievable.

Besides my opinion that the Court has allowed such overbroad interpretation of the Commerce Clause, I find it odd that they would argue ad hominems against the petitioners and the dissenting opinions! Such broad swipes at fellow justices (even in dicta) are not germane to their cause de jure. Just my opinion and that may not be the reality of the Court.

I will give Scalia a big thumbs up, even though I disagree with his opinion. At least he has made the attempt to be civil to his colleagues and to make the Courts rationale more readable and therefore more understandable.

As for the dissent by Justice O'Conner, I can best sum it up by quoting this portion of her dissent: "If the Court always defers to Congress as it does today, little may be left to the notion of enumerated powers."

O'Conner goes on to write: "The Court's definition of economic activity is breathtaking. It defines as economic any activity involving the production, distribution, and consumption of commodities. And it appears to reason that when an interstate market for a commodity exists, regulating the intrastate manufacture or possession of that commodity is constitutional either because that intrastate activity is itself economic, or because regulating it is a rational part of regulating its market.... 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." Brilliant!

Then there is the dissent from Justice Thomas, which starts off with: "Respondents Diane Monson and Angel Raich use marijuana that has never been bought or sold, that has never crossed state lines, and that has had no demonstrable effect on the national market for marijuana. If Congress can regulate this under the Commerce Clause, then it can regulate virtually anything--and the Federal Government is no longer one of limited and enumerated powers."

In the majority opinion, Stevens claims that the states have long been unaccountable in enforcement of their own laws, yet cites no cases to base this presumption upon. Yet both dissents cite Riley v. National Federation of Blind of N.C., Inc., 487 U.S. 781, 705 [1988] as establishing that the Court does indeed presume that the states enforce their own laws.

All in all, I believe that Justice Thomas and to a lessor extent, Justice O'Conner, have it correct. The Majority has simply shredded the Constitution and Federalism may now run amok.

[Wildalaska]

Wildalaska, in your studies, you may wish to return to the text of the Constitution, which sayeth thusly:

Having written a petiton for cert on the issue years ago, I know what it says

Ive only had a chance to again scan the decision, I find Scalias concurrance compelling (as I indeed find most of his thoughts)

I will look at Thomas later

WildanalyzethatAlaska

[Paul B.]

Tyme said, "Federal jurisprudence is completely out of control, and the fact that anyone, particularly intelligent people, accept it at all is a sign of how intellectually bankrupt society has become."

Tyme. Here's a quote from Adolf Hitler. "What good fortune for government that the people do no think." All I can say to that is, ain't that the truth?
Paul B.

[MicroBalrog]

"I'm a little bit stunned with the decision," Raich said in a morning press conference, adding that she has no choice but to continue to use marijuana to combat a wasting disease from which she suffers.

"If I stopped using cannabis, I would die," she said.

It's all I have to add.

[Rich Lucibella]

Antipitas-
Yours is one of the most brilliant and incisive commentaries I've seen on TFL since we reopened a year ago.

Seriously. I'm blown away by the extent to which you've captured the absurdity of the majority and the warnings of the minority. Great job.

SCOTUS has declared Interstate Commerce as the watershed for all of our personal activities and the Federal Control of those activities omnipotent. This ruling will scarcely receive notice; but it will be the basis for unbridled Federal intervention into every private activity from now to the end of the Republic.
Rich

[Marko Kloos]

Gee, what a surprise. A branch of the federal government decided that there are no limits to the regulatory powers of the federal government, Constitution be damned.

The Interstate Commerce clause....the clause for the cause of unlimited government.

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.

[USP45usp]

to the end of the Republic.

Damn, I always wished that I wouldn't read these words, and feel them as true.

In Oregon, all this means that that the feds can try to bust people smoking pot, the area LEO's and Sheriff's, will not. If brought up into court, the MM card is what they call an "afirmative defense", as in, in the state you can use that to defend yourself against having/growing marijuana. Nothing more. Unless the feds wish to take the case after an aquittal by the state, that is when you will be brought up on charges at federal level.

Personaly(sp), I think that the federal government has used the commerance clause as a loophole to remove each and every Right in the Bill of Rights and to ensure that they have total control over everything.

I'm not a pot head, the things make me sick, but I still can't find myself able to tell another what to do. All I can tell or say to them is to believe and follow God, that's all I have the right to do. I and no one else has the right to tell others what to do, or to try to control them.

Wayne

*yeah, yeah, the poll will say to ban me soon but until then.