Gonzales v. Raich (f/k/a Ashcroft v. Raich)

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.  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, 317 U. S., at 128. 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, 514 U. S., at 561. 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 pornographic 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 exasperated a circuit split concerning Congress' power to criminalize the intrastate creation and possession of child pornography.

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 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 pornography).  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.

Gonzales v. Raich's 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 pornographic 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 exasperated a circuit split concerning Congress' power to criminalize the intrastate creation and possession of child pornography.

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 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 pornography).  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.

The Court Still 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."

Gonzales v. Raich

The Court's full opinion in Gonzales v. Raich is now available online.  Go here.

Market Argument Prevailed

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, 317 U. S., at 128. 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.

Ashcroft v. Raich

Here's the core holding in Raich:

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.

Level of Review in Commerce Clause Cases

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, 514 U. S., at 561. That is sufficient to authorize the application of the CSA to respondents.

Scalia's concurring opinion at 10.

Ashcroft v. Raich

In a 6-3 opinion authored by Justice Stevens, the Supreme Court sided with the government in 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.  But that would not be.

The majority opinion is available here.  Justice Scalia's concurring opinion is here.  Justice O'Connor wrote a dissentening opinion.  Justice Thomas wrote a separate dissenting opinion.

If not Raich, then What?

The Court will be handing down one or more opinions tomorrow.  It very well could be Raich.  Those of you following other cases should please read on.

Using my limited abilities, I created a chart which does the following:

    * denotes the cases on the Court's docket
    * links to the respective briefs
    * provides the oral argument date
    * links to the respective slip opinion, if applicable.

In red font are those opinions which I think are likely to be handed down within the next couple of weeks. For those cases, I summarized the legal issues.  Please note that the chart is neither perfect in form or substance; but it's better than nothing.  If you spot any errors or omissions, please leave a comment. Better yet, download the file, improve it, and post it on your own blog.  Anyhow, click here to access the chart.

On Wednesday I expect to see Miller-El v. Dretke and either Granholm v. Heald or Veneman v. Likestock Marketing Ass'n.  The reason I don't expect to see both Granholm and Veneman is because they're both blockbusters.  The Court enjoys publicity: spreading out the "big" cases over the weeks ensures that all eyes remain on One First Street.  Of course, Ashcroft v. Raich could well be the Court's blockbuster.

If you don't trust my chart (and you shouldn't), you can search the docket here; the oral argument calendar here; and slip opinions here.

New Opinions on Tuesday and Wednesday

The Court will be issuing opinions on Tuesday and Wednesday.  How do I know this?  Simple.  I called the Court's "Opinion Announcements" line: 202-479-3360.  Since the phone number is single-use and is an automated message, you only need about 30-seconds to know when the Court will issue opinions.

Raich's Potential Aftermath

The government has petitioned for cert. in three recent cases, but has also 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 pornographic 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 exasperated a circuit split concerning Congress' power to criminalize the intrastate creation and possession of child pornography.

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 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 government has petitioned for certiorari in all three cases.  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.

If the Court sides against 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 pornography).  But it's worth keeping an eye on them.

Why the Government will Win in Raich

I had nightmares last night.  Today was going to be the day the Court handed down Raich.  The Court was going to side with Raich.  But I was going to oversleep, and before I could cover the case, everyone else would have made all of my points.  Yes, I would be denied my place as part of the chattering class.  I'm taking this blogging thing much too seriously. 

Anyhow, today was a disappointing day, since none of the three cases I was watching were given to us.  To dispel some anxiety, I am going to write why I think the government will win in Raich.

Some background.  United States v. Lopez was decided in 1995, the days of the Contract With America and the Republican Revolution.  Limiting federal intrusion into state and local affairs was chic.  Even I'm old enough to remember watching Newt Gingrich demand that Washinging focus only on truly national problems.  That the Supreme Court, for the first time since 1937, decided Lopez during the Republican Revolution is hardly coincidental.

Yet the lower-courts refused to implement Lopez, and the Court denied cert. in several significant crime and federalism cases.  Not once did a lower-court strike down a criminal law under the Commerce Clause post-Lopez, pre-Morrison.

Then in 2000, the Court handed down two decisions within one week of each other.  In U.S. v. Morrison, the Court said, "We meant what we said in Lopez."  In Jones, the Court said, "Start interpreting federal statutes narrowly, because we meant what we said last week in Morrison, and what we said five years ago in Lopez."

How did the lower-courts respond?  As I illustrated in this comprehensive post, they mostly ignored Lopez/Morrison/Jones.

Recognizing that the only enumerated power people care about is limiting Article III, the Court seems to have distanced itself from its Revolution-era decisions.  Orin Kerr cites several recent federalism cases where the federal government won.

And last Term, the Court seemed to have given up.  Sabri v. United States was a major - and unanimous - crime and federalism defeat.  See, e.g.,

• George, D. Brown, Carte Blanche: Federal Prosecution of State and Local Officials After Sabri,
• George D. Brown, New Federalism's Unanswered Question: Who Should Prosecute State an Local Officials,
• Richard W. Garnett, The New Federalism, the Spending Power, and Federal Criminal Law,
• Peter J. Henning, Federalism and the Federal Prosecution of State and Local Officials,
• Gary Lawson, Making a Federal Case out of It - Sabri v. United States.

Congress does not want its federal powers limited.  See L'Affaire Schiavo and this Federalist Society report.  Federal prosecutors do not care about federalism.  See Project Safe Neighborhoods and Project Exile.  And lower courts don't want to strike down criminal laws as exceeding Congress' commerce power.  See this post. ("Even though there are over 4,000 federal criminal laws, the circuits have only given 5 crime and federalism victories in ten years.")

So why in the hell would the Supreme Court rule against the government in Raich?  To ask the question is to answer it.
 

Will Tuesday be the Day?

The Supreme Court will issue one or more opinions on Tuesday.  Be sure to read SCOTUSblog for immediate coverage of Tuesday's decisions, which could include Raich.

Ashcroft v. Raich Still Pending

Today the Court handed down two decisions, neither of which were Ashcroft v. Raich.  According to SCOTUSblog, the Court will be in recess until April 18th.

Why the Market Argument Will Prevail in Raich

Why does Congress have power under the Commerce Clause to criminalize the intrastate, non-commercial use of medicianl marijuana? What the government has argued, and what the Court will accept (probably 9-0 or 8-1), goes like this.

    1.    Congress has chosen to enter the broader market of regulating controlled substances.  Once of these controlled substances is marijuana.
    2.    Every time a person purchases medical marijuana, he does not turn to the illicit drug market.  Because fewer people purchase drugs illegally, demand for illegal drugs decreases. This decreased demand causes the prices to go down.  In a similar vein, Judge Posner observed: "[L]aw enforcement activity raises the cost and hence price of illegal drugs and as a result of the price increase reduces their consumption."
  3.    Since the price of illegal marijuana has decreased, people who could not have afforded marijuana, can afford the reduced price.  Thus, there are more drug users.
    4.    Congress has a legitimate interest in keeping drug prices high (as part of its scheme to keep drug usage low).
    5.    Therefore, Congress may regulate non-commercial marijuana use to keep prices high, and thus demand, low.

There are obvious criticisms to this argument.  First, if more people turned to marijuana useage, wouldn't the price of marijuana increase to its previous levels?  And thus, wouldn't the new users quit using marijuana?  Well, maybe.  Or perhaps they would become addicted and unable to quit.

Then again, if Congress taxed marijuana, perhaps fewer people would use it.  After all, it's harder for most teenagers to obtain alcohol (regulated by legal) than it is for them to obtain illegal drugs.  But Congress, and not the Courts, has a better capacity to analyze these types of questions.  Again, I disagree with this reasoning, but it's the one that will prevail.

Granted, as Posner and Becker both note, allocating dollars from the war on drugs to other social problems would arise more utility.  But courts aren't supposed to make such policy determinations.

I think the market argument shares the same flaws present in Lopez and Morrison, but I'll adress that issue in a later post.

(Thanks to Tom Lincoln for the Becker-Posner post).

Congress and Noncommerical Activity

Alex Kreit has an article not to be missed entitled "Why is Congress Still Regulating Noncommercial Activity?"  Here is the abstract:

This essay considers the Commerce Clause broader regulatory scheme doctrine. Lower courts have adopted this doctrine, mentioned twice in United States v. Lopez, to uphold a wide range of federal noncommercial regulation from statutes that cover drug, gun, and child pornography possession to environmental and endangered species regulations. As a result, Lopez and United States v. Morrison thus far have not turned out to be the landmark cases they first seemed. Despite the central role the broader scheme doctrine has played in defining post-Lopez Commerce Clause power in lower court decisions, commentators surprisingly have overlooked it almost entirely. The one academic article to focus on the doctrine correctly argues that it creates perverse legislative incentives for Congress but makes only that limited contribution. As broader scheme cases work their way toward the Supreme Court, the oversight is especially significant.

This essay provides the first thorough examination of the broader scheme doctrine, argues that the prevailing interpretation by lower courts is misguided, and proposes a new framework for analyzing broader scheme questions. The analysis reveals that lower courts have upheld noncommercial activity by mistakenly relying on Wickard v. Filburn in their interpretation of the broader scheme doctrine. Instead, the broader scheme doctrine finds its roots in cases like Maryland v. Wirtz and Hodel v. Virginia Surface Mining & Reclamation Association. I propose a new framework for analyzing broader scheme questions based on the Wirtz and Hodel enterprise theory. This framework adheres to Lopez's substantive limits against federal regulation of purely local, noncommercial activity by permitting Congress to regulate noncommercial activity only when performed as part of an economic enterprise.

Crime and Federalism

Timothy Sandefur has an excellent post on the Commerce Clause, crime, and a case in which he filed an amicus brief, here.

Federalism...

is for liberals, too.

(via Volokh Conspiracy)

Taking Dibs

For reasons I'll discuss in the next week or so, I predict that the government will win this case 9-0 (with Justice Thomas concurring) - the same result as in Sabri.  Anyhow, I'm taking dibs on this phrase (or any variations thereof):

The federalism revolution went up in smoke.

Oral Argument Transcript

The oral argument transcript for Ashcroft v. Raich is available here.

Raich in the Opinion Pages

At Findlaw's Writ, Professors Vikram Amar and Alan Brownstein ask, "What, if anything, does federalism offer liberals?"

Pejman Yousefzadeh argues that Bush is fumbling federalism.

(Via How Appealing)

Is federalism for the left?

Marci Hamilton suggests, "yes," in this column:

The truth is that federalism is neither left nor right politically; rather, it is a politically neutral structural principle embedded in our Constitution. Many law professors - such as Reva Siegel and Robert Post -- have claimed that federalism is inherently a political tool for the right and, even more indefensibly, that the Supreme Court's federalism jurisprudence is judicial activism gone wild. Apparently, they reached this conclusion because conservative Justices pioneered the recent federalism revival. (The pro-federalism Justices include Chief Justice Rehnquist, Justice O'Connor, Justice Scalia, Justice Kennedy, and Justice Thomas.)

Cases affected by Raich

Since United States v. Morrison, there have been many federalism defeats, and only four federalism victories.  Should the Court reverse the Ninth Circuit's decision in Raich, McCoy (CA9), Stewart (CA9), and Maxwell (CA11) will certainly be reversed.  Indeed, as Marty Lederman notes here, the government has already petitioned for cert. in Stewart.

Anyhow, a summary of federalism victories is set forth below.

In United States v. McCoy, 323 F.3d 1114 (9th Cir. 2003), a 2-1 panel wrote:

[This child pornography law is] unconstitutional as applied to simple intrastate possession of a visual depiction (or depictions) that has not been mailed, shipped, or transported interstate and is not intended for interstate distribution, or for any economic or commercial use, including the exchange of the prohibited material for other prohibited material.

In McCoy a mother was convicted under federal child pornography laws for taking pictures of herself and her daughter with their genital areas exposed. The government could not prove that mom took these pictures for commercial gain; and the pictures never crossed state lines.

In United States v. Stewart, 348 F.3d 1132 (9th Cir. 2003) (Kozinski, J.), a 2-1 panel held that Congress lacked authority under the Commerce Clause to criminalize possession of a home-made machine gun. In Stewart the defendant rigged his semi-automatic gun to fire automatically. The Ninth Circuit reversed his conviction, even though some of the parts used to modify his gun moved through interstate commerce. Wrote Judge Kozinski:

Indeed, some of the machinegun parts did move in interstate commerce. At some level, of course, everything we own is composed of something that once traveled in commerce. This cannot mean that everything is subject to federal regulation under the Commerce Clause, else that constitutional limitation would be entirely meaningless. As Lopez reminds us, Congress’s power has limits, and we must be mindful of those limits so as not to obliterate the distinction between what is national and what is local and create a completely centralized government. Id. at 1135 (quotation marks omitted)

In Raich v. Ashcroft, 352 F.3d 1222 (9th Cir. 2003), cert. granted, 124 S.Ct. 2909, 72 (U.S. Jun 28, 2004), a 2-1 panel held that the Controlled Substance Act, to the extent that it criminalizes the use of marijuana not purchased nor obtained interstate, was an unconstitutional exercise of power under the Commerce Clause. Wrote Judge Pregerson:

The cultivation, possession, and use of marijuana for medicinal purposes and not for exchange or distribution is not properly characterized as commercial or economic activity. Lacking sale, exchange or distribution, the activity does not possess the essential elements of commerce. Id. at 1229-30.

Finally, we have United States v. Maxwell, 2004 WL 2191801 (11th Cir., Oct. 1, 2004) - digested here - where a unanimous three-judge panel held that Congress may not criminalize the intrastate possession of child pornography, even if the child pornography is kept on items that moved through interstate commerce. In Maxwell, the defendant kept his child pornography on diskettes that moved through interstate commerce. However, the prosecution could not establish that the pictures on the disks were taken outside of Maxwell's home state of Florida. Thus, the law was unconstitutional as applied to him.

Ashcroft v. Raich oral argument

[Editor's note: Timothy Lynch of the Cato Institute co-authored an amicus brief in Raich.  Mr. Lynch attended the oral argument today and has graciously agreed to share his impressions.]

This morning the Supreme Court heard arguments in Ashcroft v. Raich (No. 03-1454).  There was a lot of interest in the case--a long line of people waiting to get in to see the case.   And lots of media, TV crews set up outside for interviews afterward.

By way of background, this case involved a constitutional challenge to the federal drug law--the Controlled Substances Act.  There have been many mistaken reports that say the case is about a challenge to California's "Compassionate Use Act." Incorrect.  The legal issue before the Court is whether the federal law is an unconstitutional exercise of Congress's power to regulate commerce in the circumstances of this case.  (It is an "as applied" challenge.)  In other words, can someone be hauled into federal court and then sent to federal prison for the intrastate possession of marijuana for medicinal purposes?

Justice Stevens opened the session with an announcement that Chief Justice Rehnquist would be participating in this case even though he could not be present for the argument.  Rehnquist would read the briefs and a transcript of the oral arguments.

Paul Clement, the acting Solicitor General, argued first.  He was immediately challenged by O'Connor, who wanted to know how the feds could square its assertion of power in light of Lopez  and Morrison.  Clement's response was that those two cases preserved, and did not overrule, Wickard v. Filburn.  From that point forward, it was pretty much smooth sailing for Clement.

He said marijuana was fungible and the police would not be able to tell which stuff was legal and what was illegal.  Clement also was allowed to go on and on about how unhealthy it is to smoke marijuana.  Smoking, whether it's tobacco or marijuana, is a horrible delivery device, etc etc.  In one fleeting moment, Justice Stevens brought Clement back to the constitutional issue.  Stevens asked the SG if he could conceive of a situation where the federal drug law might go too far.  Clement allowed that it was "conceivably possible," but, in a flash, he moved on to some other point and there was no follow-up.

Randy Barnett, law professor from Boston University, argued on behalf of Raich.  He was allowed a minute to introduce his argument and was then continually peppered with hostile questions.  Barnett said there was no "economic activity" in the case, but one justice after another would challenge that statement.  "If the feds could reach the wheat used on a farm in Wickard," Scalia kept asking, "why not marijuana consumed by patients in California?" Instead of urging the Court to repudiate Wickard, Barnett tried to argue that that precedent could stand and that Raich could still prevail.

Breyer said he was ill-positioned to make the call on the medicinal value of marijuana.  He said Raich should make her case to the FDA.  If her case had merit, the FDA would change the rules. Breyer said "Let the experts decide medical questions, not the voters."  Barnett referred Breyer to an amicus brief that would show how government agencies are not immune from drug war politics, but Breyer did not seem interested in that inquiry.

Souter, Stevens, and Kennedy pressed Barnett to acknowledge an "economic impact" on the overall "market."  If the federal law were invalidated in these circumstances, they wanted to know what would happen to the black market price of marijuana.  When Barnett said the impact would be trivial, Souter would not let go of it ... what if the number of patients opting for marijuana turns out to be much, much higher, what then?!

Clement got a few minutes of rebuttal time and he related a Ninth Circuit case where some guy was arrested for marijuana possession.  The police also found a scale in his car.  The arrestee told the improbable tale that his stash was strictly for medicinal purposes.  Clement suggested that these are the absurd cases that are now taking up valuable time in our courts.

The Department of Justice should have had a rough morning.  Clement suggested that if people like Raich could legally smoke marijuana, the government's drug control strategy would somehow be "threatened."  That policy argument is a real stretch.  But, returning to the constitutional issue, Clement also said that the power to regulate commerce must encompass the power to prosecute people who grow marijuana in their basement or garage. Another stretch.  And yet, the Court seemed much more skeptical of Raich's legal claim.

Supreme Court watchers know that oral argument is not the end of the game--so Raich may still win.  Of the "Federalism Five," the one most likely to waver is Kennedy.  Stevens might cross-over on some narrow, technical ground.  Maybe.  This case should not be a close call, but it is going to be.  We should know the outcome by mid-March.

*******
Timothy Lynch is the director of the Cato Institute's Project on Criminal Justice.  His writings on the war on terrorism, drug policy, the federalization of crime, and the militarization of police tactics are voluminous and influential. 

In 2000, he served on the National Committee to Prevent Wrongful Executions. Since joining Cato in 1991, Lynch has published articles in the New York Times, the Washington Post, the Wall Street Journal, and many others.  He has also appears on many television programs.  His full biography, which includes links to many of his articles, is available here.

Congress and crime

At my other blog, Crime & Federalism, I have a new post entitled "Our first Congress and crime," where I show how our understanding of Raich can be informed by looking at the first federal criminal laws.  You can read the post here.

Summary of the legal issues

Available at SCOTUSBlog is an excellent summary of the legal issues in Raich.  You can read the summary here.

The news media on Raich

Goldstein & Howe's SCOTUSBlog has collected all the articles and op-eds touching Raich here.

Crime and federalism experts

Any news outlets seeking a quote for an article on Raich should contact Professor Richard Garnett at Notre Dame Law School; or Professor Kmiec from Pepperdine Law School. 

Prof. Garnett has been involved with many significant federalism cases, including, from last Term, Sabri v. United States.  He has also written a substantial amount of scholarship on the constitutional infirmities of many federal criminal laws.  See, e.g., The New Federalism, the Spending Power, and Federal Criminal Law.

Prof. Kmiec has published two Constitutional Law casebooks, including one on federalism and separation of powers.  He also wrote an amicus brief, supporting Angel Raich, on behalf on the CATO Institute.

Both are thoughtful and friendly: Your article will be better - and your spirits higher - after speaking with either of them.

Prof Garnett's full contact information and qualifications are available here; Prof Kmiec's, here.

Federalism and freedom

Federalism is not good because it creates "states rights." Federalism is good because it furthers individual liberty.  I pray the Court will remember that Ashcroft v. Raich is about freedom.  Is a woman free to use the only life-saving medicine available, or should her body rot to death?

In considering whether Congress can trump California's decision to decriminalize medicial marijuana, the Court should remember James Madison's words:

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 will enjoy greater freedom since the structure of federalism would prevent Congressional overreaching into local affairs.  The people will have two servants, not two masters.  See also, Gregory v. Ashcroft, 501 U.S. 452, 458-459 (1991) ("Just as the separation and independence of the coordinate branches of the Federal Government serve to prevent the accumulation of excessive power in any one branch, a healthy balance between federal and state power lies at the heart of liberty.")

I pray the Court does not pretend that Congress has the authority to regulate Ms. Raich's conduct, especially when such a fiction would lead to loss of liberty.

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)