Sunday, July 09, 2006

More Commerce Clause Ramblings

The lonely libertarian has been hard at work, preparing his upcoming paper " A Commerce Clause challenge to the Safe Drinking Water Act" for publishing. In the process I've been re-reading a great deal of academic analysis of the post-Raich state of the commerce clause. As I've mentioned previously, I believe that most of the criticism from conservative and libertarian circles is unfounded- or at least, it stems from a political point of view about the balance of state and national power rather than any sort of Constitutional perspective. But really, Raich wasn't about states rights or federalism- it was about the commerce clause. The real question, the one that modern Constitutional scholars have yet to adequately answer, is just what the commerce clause means today.

While the issue in Raich seemed to be whether or not states could legislate their own piece-by-piece exceptions to federal regulatory programs (in the form of a state-by-state medicinal marijuana exception to the Controlled Substance Act), the real commerce clause issue of Raich actually was the CSA itself. After all, the purpose of the CSA is to control the market of specifically identified drugs, and to effectuate that control in certain circumstances with bans on both the sale and possession of those drugs. And no one, not the dissenters in Raich, nor the critics, actually questioned the Constitutionality of the CSA as a whole.

As mentioned before, the petitioners in Raich were arguing for the rights of states to craft medicinal marijuana exceptions to the CSA- but if these exceptions were found to be Constitutionality permissible, there's no reason why other exceptions wouldn't be equally Constitutionally permissible. There's no reason a state couldn't permit possession of other homegrown drugs for recreational purposes. In fact, there's no reason why a state couldn't allow an intrastate market in drugs produced and sold solely within state boundaries. The point is, if state's could craft their own exceptions, then the federal government would only have jurisdiction over drugs actually crossing state lines.

And this is why the Court relied on what's been called the larger regulatory scheme doctrine in upholding these local applications of the CSA in Raich. If a purely local activity (such as possession of homegrown medicinal marijuana) is an essential part of a larger regulatory scheme of economic activity, then the federal regulation of that local activity is permissible under the commerce clause.

So just what does the commerce clause mean today? Many scholars have urged that an originalist approach to the commerce clause is uninformative because the commerce clause was crafted at a time when both commerce, and the regulation of commerce had completely different meanings. While that is true, it's also important to remember that the commerce clause was included in the Constitution in order to eliminate the barriers to trade that the states had erected under the Articles of Confederation. The original crafters of the commerce clause may not have contemplated wage legislation, product safety laws, or even comprehensive drug bans on the federal level, but they wouldn't have thought about these sorts of laws on the state level either. Even when the Constitution was written, it certainly seems that the point was that Congress had the right to legislate in the economic realm, and the point of any commerce clause inquiry should be into the economic nature of the regulation.

This economic sort of inquiry is not completely alien to the Supreme Court's previous commerce clause jurisprudence. After all, any regulation of an activity which is substantially related commerce is certainly going to be economic in nature. And just as the majority argued in Raich, local non-activities can be captured in a larger economic regulation, if those local activities are essential to the larger regulation. After Raich, what still remains outside of Congressional power under the commerce clause are regulations of non-economic activities. Or at least, given the Constitution, and given Supreme Court precedent, non-economic regulations should remain outside of Congressional power under the commerce clause.

This is an answer that may not please the conservative and libertarian critics of Raich, but it is really the only logical way of reconciling the modern regulatory state with the commerce clause. Not only that, but it provides a workable framework for actually discussing these controversial commerce clause issues.


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