The New York Times on Raich

The New York Times editorial board has stated its position on Ashcroft v. Raich.  Its conclusion:

Although the California women should win, it is important that they win on narrow, fact-specific grounds. Advocates of states' rights have latched onto this case and are urging the court to use it to radically rewrite its commerce clause rulings, reviving ancient precedents that took a more limited view of Congressional power. This is where the greatest danger lies in this case. If this sharply restricted view prevails, it could substantially diminish the federal government's ability to protect Americans from unsafe work conditions, pollution, discrimination and other harms.

The theme of this editorial is: Liberals are afraid of Raich?

I'm not sure whose version of the Commerce Clause would prevent Congress from regulating unsafe work conditions, pollution, and discrimination.  Pollution usually involves toxins travelling interstate, and thus would be covered under a narrow version of the Commerce Clause.  Congress can prevent private discrimination against blacks under the Civil Rights Amendments, which allow Congress to eliminate "badges of slavery," which almost certainly gives Congress the power to prevent unequal, but private, treatment based on race.  Perhaps Congress would still lack the power to prevent mom and pop stores from discriminating based on other classifications, though it likely could, under its commerce power, deny Subchapter S treatment to small businessness that adopt discriminatory practices.

And let's not forget about the Spending Clause.  Congress can compel states to do any number of things using its power under the Spending Clause. This would include the power require states to enact and enforce anti-discrimination laws as a condition to the reciept of federal funds.

Congress may attach conditions to the recipient of federal funds allowing Congress to do indirectly what it may not do so directly. South Dakota v. Dole, 483 U.S. 203 (1987) (requiring states to raise minimum drinking age to 21 or lose millions of dollars in federal highway funds); Oklahoma v. Civil Service Comm’n, 330 U.S. 127 (1947) (requiring state to take adverse employment action against potentially corrupt civil service employees).  Just as Congress could "nudge" South Dakota to raise its minimum drinking age to 21, and persuade Oklahoma to fire a civil service employee engaged in political activities, it could also require states to adopt anti-discrimination laws.  Inded, the Religious Land Use and Institutioanlized Persons Act (requiring States to accommodate religion in a way Congress could not directly require them to) is premised on the Spending Clause.

Thus, even a major federalism win in Raich would not likely kill efforts to end irrational discrimination.  But major win might prevent Congress from further expanding the federal criminal code.  And that should be something to make liberals happy.

(Hat tip: OK@VC)

Comments

[Chip Venie]

Two different views of federalism: possible O'Connor replacements Wilkinson and Luttig debate the outer reaches of the commerce clause.

Judges M. Luttig and J. Harvie Wilkinson of the Fourth Circuit are often mentioned as possible replacements for Justice O'Connor. Federalism, and what it means in the wake of the Raich decision is an important distinction between Wilkinson and Luttig.

It seems like Luttig's reasoning in the dissent below (Gibbs v. Babbitt) would suggest that he would have voted to invalidate the marijuana regulation in question in Gonzales v. Raich.
In Gibbs, Judge Luttig dissented from a decision holding that a Fish and Wildlife Service regulation limiting the killing of endangered wolves on private land was within the commerce power. Judge Luttig argued that the killing of a small number of wolves did not have a "substantial effect" on interstate commerce required by Lopez and Morrison. The case has received media attention because of the criticism of Judge Luttig's views in the majority opinion written by Judge Wilkinson. Judge Wilkinson argued that Judge Luttig "would rework the relationship between the judiciary and its coordinate branches" by allowing courts to invalidate laws based on "a judge's view of the wisdom of enacted policies."

Judge Luttig's view of the substantial effects test cannot be reconciled with his mentor, Scalia's opinion in Gonzales v. Raich. For starters, the grey wolf taking regulation in question in Gibbs IS part of a larger regulation, the Endangered Species Act. This is the specific reason why the marijuana regulation was upheld by Scalia, because the Congress is allowed to make regulations that reach purley intrastate activities if regulation of those intrastate activities is part of a larger scheme of interstate commerce regulations. Under Scalia's reasoning in Raich, the grey wolf taking regulation would have been valid.

So is Luttig in favor of medical marijuana? The Fourth Circuit has not ruled directly on the medical marijuana issue (none of the states in the Fourth Circuit have passed medical marijuana laws), see Raich at fn1. See e.g. United States v. Dash (10th Circuit 1997)(maufacturing controlled substance can be reached by the commerce clause based legislation). Proyect v. United States (2nd Cir. 1996) (manufacturing marijuana can be reached by commerce clause based legislation).

However, in United States v. Leshuk, 65 F.3d 1105, 1111-12 (4th Cir. 1995), Judges Russell, Hall, and Widener upheld the CSA's application to the growing of thirty three marijuana plants. Judge Luttig did not participate in the decision. The Leshuk decision itself simply says that because Congress made explicit findings that the manufacture of marijuana substantially affects commerce (and Congress failed to make the findings in the Gun Free Schools Zones Act), the CSA is valid. However, there were findings made by Congress in the VAWA, and they are explicitly discussed in Luttig's dissent in Brzonkala.

Luttig specifically criticizes finding an act of Congress contitutional against a commerce clause challenge just by making conclusory "findings." Luttig states: "Ignoring entirely the overarching change in Commerce Clause analysis wrought by Lopez, the majority merely recites several statements from House and Senate committees on the general problem of violence against women and the effect of that violence on the national economy, together with a sentence from a House Report stating that violence against women substantially affects interstate commerce (incidentally, never mentioning that the Senate, as opposed to the House, did not conclude that such violence substantially affects interstate commerce) and then simply states, without more, that the Act is constitutional."

Luttig suggests that he could have found differently on the issue in Leshuk:

"The majority's wholesale deference to a committee finding would at least be understandable if that committee had made extensive findings deserving of deference. However, the majority ultimately sustains the constitutionality of the Act literally on the basis of a single sentence appearing in that committee report, which sentence is, itself, entirely conclusory."

United States v. Leshuk:
http://www.law.emory.edu/4circuit/sept95/945839.p.html

See Gibbs v. Babbitt, full case available here:
http://pacer.ca4.uscourts.gov/opinion.pdf/991218.P.pdf

Brzonkala v. Virginia Tech, full text here:
http://pacer.ca4.uscourts.gov/opinion.pdf/961814A.P.pdf

Luttig is a true federalist and seems willing to examine the sum and subtance of Congressional findings vis-a-vis the substantial affect any given activity may have on interstate commerce. He probably would have bucked his mentor Scalia and voted with Thomas in Gonzales v. Raich.

Chip Venie is a private criminal defense attorney in San Diego, California. He is admitted to practice before state and federal courts in California, Washington, D.C., and Michigan. Mr. Venie graduated from The University of Virginia School of Law and clerked as a staff Attorney to the United States Court of Appeals for the Fourth Circuit in Richmond, Virginia. Mr. Venie has litigated over 700 trial level felony matters and over 150 appeals. Mr. Venie can be reached at (619) 235-8300, or chipesq@hotmail.com.