Gonzales v. Raich

Admittedly, my jurisprudential credentials are slimmer than JB’s hollow bird-bones, but can anyone honestly make the case that the Gonzales v. Raich decision is not another nail in the coffin of American federalism?

I’ve read the decision and dissents, and it seems to me the case could not possibly be any clearer. The medicinal marijuana in question was grown within the State of California, with no intent for sale, to be used for medical reasons by the grower. The lower courts drew from US v. Lopez to declare a certain class of local activities beyond the reach of federal power and ruled for Raich. If the matter of this case, homegrown medicinal marijuana never intended for any market, isn’t beyond the scope of federal power under the commerce clause, than what is?

Nothing, it seems, according to Justice Stephens and the majority. But it also seems that the substance in question is marijuana makes all the difference. Stephens rattles off a long laundry list federal controls on the substance dating back hundreds of years. Even marijuana that is grown for explicitly medicinal purposes has some attachment to drug markets, Stephens implies, which makes it subject to federal power under the commerce clause. Which is why the federal government, in theory, shouldn’t be able to regulate the tomatoes I grow in my back yard but they can kick down my door and destroy my cannabis plants

But wait, that’s not all. Taking a typically progressive tact, Stephens asserts that the understanding of the Commerce Clause has evolved over time. The commerce clause now applies not only to interstate commerce, as it reads in the Constitution, but to “things that substantially affect interstate commerce.” Who is to decide that? Well, who else but the court. Stephens goes on to destroy the boundary of the “outer limits” of the commerce clause and ends with this patronizing parting shot:

“As the Solicitor General confirmed during oral argument, the statute authorizes procedures for reclassification of Schedule I drugs. But perhaps even more important than these legal avenues is the democratic, in which the voices of voters allied with these respondents may one day be heard in the halls of Congress.”

Thanks, Justice Stephens. When the citizens of the United States get together and change the law through their elected representatives everything will be cool, but when the voters of the State of California try to do that same thing in their state you put them in a big sweaty commerce clause headlock and tell them to f--- themselves.

But beyond that the real mystery of this case is Justice Scalia’s concurring opinion. Scalia’s “more nuanced” (his words) reading insists that even in situations when the commerce clause does not cleanly apply (as in this one), the Necessary and Proper clause steps in and covers the remainder. This ridiculous claim adds insult to injury and further diminishes the scope of state power. We knew that federalism was on the endangered species list, but I never thought that Antonin Scalia would be one of the hunters. Is there anything in this country that a nimble tongued lawyer could not argue is beyond the scope of both the commerce clause *and* the necessary and proper clause?

The dissent offers up a view more consistent with my own (that this decision asserts a federal government with unlimited powers) and thankfully Thomas has the marbles to call Scalia out on his foolishness. Thomas then proceeds to beat on the majority with the Madison Hammer (a high level weapon forged from remains of the robot Madison and enchanted with Liberty +1 and Federalism +7) for a pleasing amount of wordage.

Pleasing, for a while, but ultimately unsatisfying.

“One searches the Court’s opinion in vain for any hint of what aspect of American life is reserved to the states,” Thomas writes in his dissent.

Indeed we do. Still searching.