Thursday, February 23, 2006

Defending Scalia: A Reasonable Commerce Clause

Ever since his concurring opinion in Raich, the medical marijuana decision from last term, Justice Scalia has taken more than a few shots like this one from the Volokh Conspiracy's David Bernstein.

As someone who has delved into Raich in detail as part of my paper challenging the Safe Drinking Water Act under the Commerce Clause, I have no problem refuting Bernstein, and sticking up for Scalia. Bernstein's post was in response to Scalia's public criticisms of the Constitutional Scalia's public criticism of the living Constitution theory of Constitutional interpretation. Taking a jab at Scalia's Raich concurrence, Bernstein responded:

Unless you were an advocate of the "argument of flexibility" and the idea that the Constitution "has to change with society like a living organism," you would have to be an idiot to believe that the Necessary and Proper Clause somehow allows Congress to also regulate noncommercial intrastate activity [locally cultivating medicinal marijuana] with no substantial effect on interstate commerce, no?

No you wouldn't have to be an idiot to think that. When Raich was decided, I was firmly in the camp of those who believed it had been wrongly decided. However, in my analysis of Raich, I believe my initial impressions were mistaken, and have entrenched myself firmly in the Scalia view of Commerce Clause jurisprudence. Here's why Scalia is right, and David Bernstein is wrong (Non-legal readers beware):

Raich dealt with the Controlled Substance Act (CSA), a regulatory scheme which was clearly economic in nature. The question at issue dealt with how far such a regulatory program could be extended. Scalia was correct in utilizing the necessary and Proper Clause, which is the Constitutional articulation of Rehnquist's assertion in U.S. v. Lopez that the Commerce Clause could implicate purely intrastate activities, provided that such activities were essential parts of larger regulatory schemes of economic activity. The idea being that the obviously Constitutional aspect of the regulation would fail in the absence of the inclusion of the purely local activity. This falls right in line with John Marshall's articulation of the necessary and Proper Clause in McCulloch v. Maryland in 1816.

In Raich, the issue was whether or not the CSA could include locally grown, medicinal marijuana that did not travel in commerce. Applying the logic stated above, the answer is yes. If Congress is to effectively ban an item from commerce, it can not effectively do so without criminalizing all instances of that item's possession. Allowing the states to carve out exceptions to the general federal rule would wreak havoc on the federal goal of complete control over the market.

Raich is interesting not so much for what it says, but for what it doesn't say. It's crafted to fit within the Court's current Commerce Clause framework, and does not repudiate Lopez or Morrison (the Courts previous two big Commerce Clause cases, striking down federal laws dealing with guns in schools and violence against women). Raich stands for the assumption that Congress has unlimited authority to craft broad economic regulations, an assumption which hasn't changed since the 1940's. It does not close the door on Commerce Clause challenges to non-economic regulations (say perhaps environmental regulations).

My views on Raich represent a stubborn willingness to accept that broad Congressional power over economic regulation is unlikely to change anytime soon. With the exception of Clarence Thomas, no justice is willing to return to pre-New Deal Commerce Clause jurisprudence. The interesting issue that is not addressed in Raich (not even by Thomas) is whether or not Congress has the power to ban items in commerce in the first place. Seemingly, such bans go against the historical roots of the Commerce Clause, which was created to open, not close markets. But again, such positions are so far outside the mainstream, they remain at best, an academic footnote. There are Commerce Clause battles to be won, but mounting those challenges outside the economic realm seems to be the best formula for success.


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