Unconstitutional Commerce Clause powers upheld
"The Congress shall have power... To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes."
Fellow PHC students are familiar with the Federal government's ability to do almost anything based on an absurdly broad interpretation of the Commerce and General Welfare clauses of the Consitution. Yesterday's Supreme Court decision Gonzales v. Raich, decided on a 6-3 vote, has further stated that Congress can use the Commerce clause to pass any law that they can link to the economy in any way. To cite Justice Thomas's dissent,
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.
Thomas, Rehnquist and O'Connor agreed with the Ninth Circuit Court, which argued that Supreme Court precedent did somewhat limit Congress's commerce clause powers. Specifically, in U.S. v. Lopez, the SCOTUS held that Congress could not create gun-free school zones under the Commerce Clause, and in U.S. v. Morrison, in which the court held that Congress could not regulate gender-motivated violence (rape) under the clause. Both were non-economic activity.
Justice Stevens, speaking for the majority (himself, Kennedy, Souter, Ginsberg, and Breyer; Scalia, concurring) argued that
regulation is squarely within Congress’ commerce power because production of the commodity meant for home consumption, be it wheat (Wickard v. Filburn) or marijuana, has a substantial effect on supply and demand in the national market for that commodity. In assessing the scope of Congress’ Commerce Clause authority, the Court need not determine whether respondents’ activities, taken in the aggregate, substantially affect interstate commerce in fact, but only whether a “rational basis” exists for so concluding.
This decision is not primarily about marijuana, but the regulatory authority of Congress, but its immediate effects are on drug policy, and basically maintain the status quo. The Constitutional, federalist position rejects the status quo and calls into question part of the authority of Congress to regulate prescription drugs.
Political Animal notes that this ruling will find conservatives and liberals switching their normal positions on constitutional interpretation, proving that they are more concerned with getting their way in specific issues than the bigger picture of principles. How about the justices? SCOTUSblog notes that the "liberal" justices put their permissive reading of the commerce clause above the specific issue at hand, while the conservatives varied. In her opinion, Scalia's decision was not, an inconstistency as some said; the distinction is between activity that is part of a web of interstate commercial activity (wheat and marijuana distribution) and activity is not (carrying a gun). I don't agree with her argument, and at any rate, the Wickard decision was wrong.
O'Connor makes an excellent argument that this is not economic activity decision strips Lopez and Morrison of all significance. All Congress has to do to pass a gun-free school zone law or anti-rape law, in spite of the court's decisions, is to adjust the wording, she says. O'Connor is not courageous enough to take issue with Wickard, instead arguing that the effect of homegrown wheat on interstate commerce was far more significant than the effect of a few marijuana growers.
For an excellent, non-partisan, detailed analysis of the decision, see Lawrence Solum's Legal Theory Blog.
(article expanded and edited 13:30 June 8)
Fellow PHC students are familiar with the Federal government's ability to do almost anything based on an absurdly broad interpretation of the Commerce and General Welfare clauses of the Consitution. Yesterday's Supreme Court decision Gonzales v. Raich, decided on a 6-3 vote, has further stated that Congress can use the Commerce clause to pass any law that they can link to the economy in any way. To cite Justice Thomas's dissent,
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.
Thomas, Rehnquist and O'Connor agreed with the Ninth Circuit Court, which argued that Supreme Court precedent did somewhat limit Congress's commerce clause powers. Specifically, in U.S. v. Lopez, the SCOTUS held that Congress could not create gun-free school zones under the Commerce Clause, and in U.S. v. Morrison, in which the court held that Congress could not regulate gender-motivated violence (rape) under the clause. Both were non-economic activity.
Justice Stevens, speaking for the majority (himself, Kennedy, Souter, Ginsberg, and Breyer; Scalia, concurring) argued that
regulation is squarely within Congress’ commerce power because production of the commodity meant for home consumption, be it wheat (Wickard v. Filburn) or marijuana, has a substantial effect on supply and demand in the national market for that commodity. In assessing the scope of Congress’ Commerce Clause authority, the Court need not determine whether respondents’ activities, taken in the aggregate, substantially affect interstate commerce in fact, but only whether a “rational basis” exists for so concluding.
This decision is not primarily about marijuana, but the regulatory authority of Congress, but its immediate effects are on drug policy, and basically maintain the status quo. The Constitutional, federalist position rejects the status quo and calls into question part of the authority of Congress to regulate prescription drugs.
Political Animal notes that this ruling will find conservatives and liberals switching their normal positions on constitutional interpretation, proving that they are more concerned with getting their way in specific issues than the bigger picture of principles. How about the justices? SCOTUSblog notes that the "liberal" justices put their permissive reading of the commerce clause above the specific issue at hand, while the conservatives varied. In her opinion, Scalia's decision was not, an inconstistency as some said; the distinction is between activity that is part of a web of interstate commercial activity (wheat and marijuana distribution) and activity is not (carrying a gun). I don't agree with her argument, and at any rate, the Wickard decision was wrong.
O'Connor makes an excellent argument that this is not economic activity decision strips Lopez and Morrison of all significance. All Congress has to do to pass a gun-free school zone law or anti-rape law, in spite of the court's decisions, is to adjust the wording, she says. O'Connor is not courageous enough to take issue with Wickard, instead arguing that the effect of homegrown wheat on interstate commerce was far more significant than the effect of a few marijuana growers.
For an excellent, non-partisan, detailed analysis of the decision, see Lawrence Solum's Legal Theory Blog.
(article expanded and edited 13:30 June 8)
posted by Derby at 14:34
2 Comments:
Hey, this is true. I was shocked when I saw the news story about the ruling too. The question is, what do we do about it? I'm not a government major, so I don't have a clue what my options are, besides writhing in impotent fury. :P
I'm thinking of writing a post eventually about what we can do about the government; here's my thoughts so far. Immediately, we need to vote for our principles. But to do this, especially medium and long-term, we need education. The fact is that people either don't vote because they don't care, or vote on a few unimportant issues because they don't know what the important ones are. An example is voting for a congressman because he's against "evil drug use!" and will violate the principles of our government to fight it. People in today's schools and society are not taught to think critically or about what the long-term consequences of an action are, and proper education (not necessarily in school/homeschool; writing/art and living a well-ordered life are a great methods to teach about what is important) will fix that.
Post a Comment
<< Home