Crime & Federalism

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.

Gonzales v. Raich

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 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.

UPDATE: Don't miss my comprehensive post on Raich, which is available here.

Who's Writing Raich

A contributor of a message board asked:

Per SCOTUSblog: "For the December sitting, decisions are outstanding in Raich (medical marijuana) and Miller-El (Batson). Neither Justice Stevens nor Justice Souter has issued a majority opinion for the sitting, so they presumably are the authors."

If the Chief participated, why would he assign the majority opinion to Stevens or Souter when, presumably, Raich is a 9-0 opinion? Why not let Kennedy or Scalia write it?

Marty Lederman has an interesting response located here.

UPDATE: Mr. Lederman has another intriguing possibility here.

Gonzales v. Raich

[Other Gonzales v. Raich sources and material are available here.]

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 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.

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.,

• 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.

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.

Ashcroft v. Raich and Common Sense

Pete Guither has a post entitled, "Why the Market Argument is Bogus in Raich," available here.

New Post at Ashcroft v. Raich Blog

I have a new post up at the rarely updated - but still viable - Ashcroft v. Raich Blog entitled: "Why the Market Argument Will Prevail in Raich."