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Why Raich Will Lose

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 membership in 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.  That way I won't have to awaken at (or, more likely, stay up until) 6 a.m. on the next decision day.

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.,

I was so convinced that Sabri would extend Lopez and Morrison's reasoning that I wrote this mock dissenting opinion on behalf of Justice Kennedy (whom I pretended to be for my S.Ct. Seminar).  Yet even Justice Thomas did not side with Sabri.  Hint: If Thomas isn't willing to extend Lopez and Morrison, no one is.

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.