Gonzales v. Raich's Aftermath
Thoughts on Thomas’ Raich dissent

Gonzales v. Raich (Omnibus Post)

In a 6-3 opinion authored by Justice Stevens, the Supreme Court sided with the government in Gonzales v. Raich (formerly Ashcroft v. Raich).  Supreme Court experts had predicted a 9-0 or 8-1 victory for the government, so in a sense, this is a victory for enumerated powers advocates and social justice.

Justice Stevens and the other liberals on the Court have continually overlooked the fact that the federal criminal justice system falls disparately upon blacks.  A win for Raich would have meant fewer federal criminal laws, and thus, a lesser burdened on an already oppressed class of people.  Moreover, federal federal criminal laws would mitigate any bad Fourth Amendment opinions.  Fewer laws to enforce means fewer opportunities to violate civil rights.  But that is not be - at least not yet. 

Raich reaffirms my support of President Bush's judicial nominations.  It is crucial for individual liberty that the Court have more members like Justice Thomas. 

The Raich opinion is available here.  Here's the core holding:

Wickard thus establishes that Congress can regulate purely intrastate activity that is not itself “commercial,” in that it is not produced for sale, if it concludes that failure to regulate that class of activity would undercut the regulation of the interstate market in that commodity.  

The similarities between this case and Wickard are striking. Like the farmer in Wickard, respondents are cultivating, for home consumption, a fungible commodity for which there is an established, albeit illegal, interstate market.28 Just as the Agricultural Adjustment Act was designed “to control the volume [of wheat] moving in interstate and foreign commerce in order to avoid surpluses . . .” and consequently control the market price, id., at 115, a primary purpose of the CSA is to control the supply and demand of controlled substances in both lawful and unlawful drug markets. 

Slip op. at 15.

The "Market Argument" Prevailed
The Court accepted the goverment's "market argument:"

More concretely, one concern prompting inclusion of wheat grown for home consumption in the 1938 Act was that rising market prices could draw such wheat into the interstate market, resulting in lower market prices. Wickard.  The parallel concern making it appropriate to include marijuana grown for home consumption in the CSA is the likelihood that the high demand in the interstate market will draw such marijuana into that market. While the diversion of homegrown wheat tended to frustrate the federal interest in stabilizing prices by regulating the volume of commercial transactions in the interstate market, the diversion of homegrown marijuana tends to frustrate the federal interest in eliminating commercial transactions in the interstate market in their entirety. In both cases, the regulation is squarely within Congress’ commerce power because production of the commodity meant for home consumption, be it wheat or marijuana, has a substantial effect on supply and demand in the national market for that commodity.

Slip op. at 16.

Rational Basis Rules.
After Lopez and Morrison, some wondered what level of review would apply in Commerce Clause decisions.  It seems that rational basis rules. Per Justice Stevens, writing for a 6-3 Court:

In Wickard, we had no difficulty concluding that Congress had a rational basis for believing that, when viewed in the aggregate, leaving home-consumed wheat outside the regulatory scheme would have a substantial influence on price and market conditions. Here too, Congress had a rational basis for concluding that leaving homeconsumed marijuana outside federal control would similarly affect price and market conditions.

Slip op. at 16.  More to the point:

In assessing the scope of Congress’ authority under the Commerce Clause, we stress that the task before us is a modest one. We 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.

Id. at 19.  Justice Scalia agreed:

I thus agree with the Court that, however the class of regulated activities is subdivided, Congress could reasonably conclude that its objective of prohibiting marijuana from the interstate market “could be undercut” if those activities were excepted from its general scheme of regulation. See Lopez. That is sufficient to authorize the application of the CSA to respondents.

Scalia's concurring opinion at 10.

The Court Doesn't Get Federalism
In her dissenting opinion in Gonzales v. Raich, Justice O'Connor wrote:

We enforce the “outer limits” of Congress’ Commerce Clause authority not for their own sake, but to protect historic spheres of state sovereignty from excessive federal encroachment and thereby to maintain the distribution of power fundamental to our federalist system of government.

James Madison would have disagreed:

In the compound republic of America, the power surrendered by the people is first divided between two distinct governments, and then the portion allotted to each subdivided among the distinct and separate departments.  Hence a double security arises to the rights of the people.  The different governments will control each other, at the same time that each will be controlled by itself. 

The Federalist No. 51, p. 323 (C. Rossiter ed. 1961) (J. Madison).  By limiting the states and Congress to their proper prerogatives, the People would enjoy greater freedom since the structure of federalism would prevent Congressional overreaching into local affairs.  The people would have two servants, not two masters.  Federalism is concerned with individual liberty, not "state sovereignty" or "power."

Gonzales v. Raich's (Immediate) Aftermath
Gonzales v. Raich will have an immediate effect on three lower-court opinions in which the government had petitioned for cert. in three recent cases, but had asked that the Court hold the cert. petitions pending the outcome of Raich.  I'll summarize the cases and then link to the cert. petitions.

United States v. Maxwell and United States v. Smith are two important Commerce Clause decisions from the Eleventh Circuit Court of Appeals.  In Maxwell a unanimous three-judge panel held that 18 U.S.C. 2252A(a)(5)(B), which makes it a federal crime to posses child p*rnography on materials that traveled in interstate commerce, was an invalid exercise of Congress' commerce power.  Judge Tjoflat wrote for the panel that since Maxwell's possession of the p*rnographic images was non-commercial, it would not apply Wickard v. Filburn's aggregation principle.  Slip op. at 37 ("We believe this aggregate approach cannot be applied to intrastate criminal activity of a non-economic nature.")

In Smith, another Tjoflat opinion, a unanimous three-judge panel of the Eleventh Circuit, applying plain error review, reversed another conviction obtained under Sec. 2252A(a)(5)(B).  Maxwell and Smith exacerbated a circuit split concerning Congress' power to criminalize the intrastate creation and possession of child p8rnography.

Another important case testing the limits of Congress' commerce power is United States v. Stewart.  In Stewart, a 2-1 panel of the Ninth Circuit, per Judge Kozinski, held that Congress could, under the Commerce Clause, criminalize the possession of homemade machine guns. The defendant in Stewart used parts that traveled in interstate commerce to convert his semi-automatic rifle with the capability to fire automatically, i.e., Stewart's rifle would fire repeatedly without his having to continually pull the trigger.

The Maxwell cert. petition is available here; the Smith cert. petition is available here; the Stewart cert. petition is available here.  The government has requested that all three petitions for a writ of certiorari be held and then disposed of in light of Ashcroft v. Raich.

Post-Raich, it's unlikely that Maxwell, Smith, or Stewart will stand.  All three cases, like Raich, involve the intrastate production or possession of materials for which there is a national market (machine guns and child p*rnography).  The Court will likely GVR (grant cert., vacate the judgment, and remand for reconsideration) these cases.    But it's worth keeping an eye on them.