Patterico's Pontifications

6/6/2005

Now They Discover the Legislative Process

Filed under: General — Angry Clam @ 7:33 am



Here’s a quote from a recent Supreme Court decision:

but perhaps even more important than these legal avenues is the democratic process, in which the voices of voters allied with these respondents may one day be heard in the halls of Congress.”

Who wrote that? Let me tell you one thing: it wasn’t Justice Scalia, who did, however, make the same argument in dissent in Lawrence v. Texas.

Answer after the jump.

It was Justice Stevens, refusing to strike down marijuana regulations in Raich v. Ashcroft.

Remember, folks, that Commerce Clause challenges to laws means you need to go to Congress, but if you want an abortion, or gay marriage, or a ban on the death penalty, feel free to file a lawsuit.

Disclaimer: I think that there are very significant arguments that the Federal drug regulations are legitimate under the Commerce Clause, even as applied to Raich.

UPDATE: Patterico says: speak for yourself, Clam! I think Clarence Thomas is the hero of the day.

42 Responses to “Now They Discover the Legislative Process”

  1. Legislative supremacy is not a ready-to-wear answer to all questions of power between the branches. Does anyone argue that, under the Constitution, it is? I was under the impression that judicial power on occasion trumps legislative on such issues as individual liberty.

    And if not, why do we have a judicial system? Hopefully we can agree on the need for judicial competence, if not precisely on what that means, rather than selectively making arguments for stamping out judicial power on particular social issues under the pretext of “textualism,” “originalism,” and the like.

    To me, this is precisely the type of kulturkampf that Scalia mocked the Court for undertaking. Others may disagree on the merits, but ultimately your stance on the limits of legislative power probably depends entirely on whether the issue is guns and commandments, or marijuana and gays, etc. And, for that matter, on who is controlling the legislature at that moment.

    There is a reason that non-libertarian conservatives will not be sounding the alarm for states’ rights after Raich – and that reason is not their concern over the constitutional separation of powers.

    biwah (f5ca22)

  2. “why do we have a judicial system?”

    to clarify – why do we have a FEDERAL judiciary?

    biwah (f5ca22)

  3. Disclaimer: I think that there are very significant arguments that the Federal drug regulations are legitimate under the Commerce Clause, even as applied to Raich.

    Such as…? “Drugs are bad, mkay” doesn’t count. Then again, Justice Stevens wrote the lead opinion in this case, so maybe it does count.

    Xrlq (6c76c4)

  4. biwah, respectfully, you are missing the point. The issue isn’t whether the federal government should regulate marijuana, but rather, whether they can.

    It’s not an issue of legislative vs. judicial power. The Commerce Clause debate actually involves judges and congress working together, not against each other. The congress exercises some wacky power not found anywhere in the constitution, and the federal courts bend logic and reason to find a way to hang the power on the Commerce Clause. In this case, the Supreme Court found that the marijuana regulation fell within the scope of the Commerce Clause.

    The case presented a tough “Sophie’s Choice” for the liberals on the Court. They had to choose whether to support medical marijuana or whether to uphold their cherished long view of the Commerce Clause. They couldn’t do both. The irony here, and what sparked the original post, was the fact that pleas to the legislature are usually the province of textualists holding to a strict interpretation of a statute.

    In this case the liberal justices were hoisted on their own petard, so to speak. And Stevens saved the only baby he had the power to save — the “big tent” interpretation of the Commerce Clause.

    David Hiersekorn (49471d)

  5. If the court had sided with Raich, the Social Security Act would have been invalidated. Obviously, toking-up isn’t nearly as important to liberals as that sacred text.

    Richard Bennett (869893)

  6. “The case presented a tough “Sophie’s Choice” for the liberals on the Court. They had to choose whether to support medical marijuana or whether to uphold their cherished long view of the Commerce
    Clause. ”

    Did they make a substantive due process arguement?

    actus (cd484e)

  7. You don’t have a substantive due process right to medicine, and not to a specific type of medicine- the Court has made that clear, so they didn’t bother hammering it.

    And, Xrlq, I believe that the negative commerce clause (that state regulation cannot substantially burden interstate commerce) supplies a non-objectionable (to a conservative) approach to validating the application of the law even to people like Raich- California cannot pass a law like Prop. 215, which substantially affects federal commerce enforcement.

    Angry Clam (f05866)

  8. All right, Clam, I’ll bite: how does a law that states people can grow marijuana in California and even sell it in California “substantially affect[] federal commerce enforcement?”

    Can Congress pass a constitutional law banning the possession of apples in Washington state?

    Dafydd

    Dafydd (df2f54)

  9. And if it can, is there any restriction at all on the power of Congress to legislate, in your opinion?

    Dafydd

    Dafydd (df2f54)

  10. And, Xrlq, I believe that the negative commerce clause (that state regulation cannot substantially burden interstate commerce) supplies a non-objectionable (to a conservative) approach to validating the application of the law even to people like Raich- California cannot pass a law like Prop. 215, which substantially affects federal commerce enforcement.

    Horse puckey. The most mileage you can get out of the negative commerce clause argument is that California law cannot generally discriminate against out of state marijuana unless Congress allows it to by statute. By expressly forbidding the importation of marijuana across state lines, Congress has done more than give them permission to do that. Besides, if it hadn’t the remedy would be to require California to allow importation of marijuana from other states.

    Any other (allegedly) constitutional excuses for this blatant power-grab by the federal government?

    Xrlq (ffb240)

  11. I’ll let Clarence Thomas answer dafydd’s question from above.

    “Respondents Diane Monson and Angel Raich use marijuana that has never been bought or sold, that has never crossed state lines, and that has had no demonstrable effect on the national market for marijuana. If Congress can regulate this under the Commerce Clause, then it can regulate virtually anything and the Federal Government is no longer one of limited and enumerated powers.”

    By the way if the government is going after citizens who grow PLANTS on THEIR PROPERTY what inter-state commerce are they effecting? The illegal drug trade?

    Are the courts now protecting the drug cartels who import this from Mexico, Columbia etc…? God knows we can’t harm an estimated 7+ billion dollar cartel run business.

    LibertarianLarry (71cab3)

  12. “You don’t have a substantive due process right to medicine, and not to a specific type of medicine- the Court has made that clear, so they didn’t bother hammering it.”

    Thats true, but it makes it less of a sophie’s choice for people who are against all drug war, not just the federal one.

    actus (cd484e)

  13. “By the way if the government is going after citizens who grow PLANTS on THEIR PROPERTY what inter-state commerce are they effecting? The illegal drug trade?”

    The common answer is that they would otherwise be on the market buying it. Its not that hard for an economist to perceive the effect on the market in that sense.

    actus (cd484e)

  14. Well, you guys are doofs for testing the extent of the commerce clause with weed instead of with wheat.

    If you expect judges to close their eyes to the differences between weed and wheat, you’ve got another think coming.

    See Dubya (a5db1c)

  15. There actually was a case involving wheat, C Dubya, and the outcome was the same; it was the Morrison case.

    Richard Bennett (869893)

  16. Commerce between states invariably affects commerce (and all other significant functions) within states and visa versa. This gives judicial activists open season to exploit their will throughout the depth and breadth of all societal affairs. All they need is a hook that seems plausible in reference to an ever shifting standard.

    So, the real regulator of these problems is not the processes of the Court in a vacuum, but by the political interplay between state and federal government through the representative process of legislative elections. This is why the Senate is what it is (2 per state w/ 6 year terms). Note that it is also the Senate that confirms these judges. Full interplay requires correction. Thus the legislature must feel free to remove justices from the bench when necessary. If they do not, then the electorate of the various states can chuck their representatives out.

    Our government works because it models closely the significant interactions between the citizenry in a simplified and accessible form (we know who to blame when things are amiss).

    The short and long of this observation is that the electorate is now a player in these decisions, thus the strange unprincipled results from the bench. (In this case it is a good thing–judges should have no principles/agenda other than integrity to the written law seasoned with logic, patriotism, and foresight. Yes, good judges should be good patriots).

    Paul Deignan (3e7736)

  17. The CITIZENS of Alaska, Colorado, Hawaii, Maine, Montana, Nevada, Oregon, Vermont , Washington and California all VOTED to support the medical use of marijuana.

    I don’t expect the courts to close their eyes to anything. I do expect them to listen to the CITIZENS of these states who have decided for THEMSELVES what is best….BY VOTING ON THE SUBJECT!

    LibertarianLarry (71cab3)

  18. “By the way if the government is going after citizens who grow PLANTS on THEIR PROPERTY what inter-state commerce are they effecting? The illegal drug trade?”

    The common answer is that they would otherwise be on the market buying it. Its not that hard for an economist to perceive the effect on the market in that sense.

    That would indeed be the common answer, but it’s also an uncommonly silly application of the same. After all, it’s one thing to make that argument to protect a licit market, e.g., wheat, which the government does not want undermined by unwanted private, ostensibly noncommercial competition. It’s quite another to raise the same argument where the affected market is an illicit market the federal government supposedly wants to stamp out. Is the federal government really losing any sleep over the possibility that too much much home-grown pot will make the national drug dealing industry unprofitable?

    Xrlq (5ffe06)

  19. I am Enjoying your effort to make sense out nonsense. However, let us face facts. The Supreme Court mostly cares about the Supreme Court and its perogatives. If anyone had any belief in the idea that the Court is interpreting the Constitution, that belief was eviscerated when they decided that European/International law would be a basis to decide what the Constituion means. The Supreme Court decides what the result in the case should be and then decides how to contort the constitution to match the desired result. The general guiding principle in all decisions is to expand the Court’s authority and power to do whatever social engineering the Justices find pleasing. Witness the “speech” codes on college campuses and the Court’s unwillingness to protect freedom of speech because the majority on the Court doesn’t want that particular speech protected. The Court picks and chooses not according to any connection to the Constituion, but according to their political prefernces. Which is precisely why the Democrats are so angry, fearful, and aggressive in trying to get their nominees on the Court. The liberals lawyers know the above truth even if all other lawyers are fooled into thinking that there is some sense or organized theory that explains the “off the wall” constituional interpretations.

    john (fc4860)

  20. So, Mr. John Know-it-all Cynic, it’s not possible that the Justices were acting in good conscience and simply saw the law differently than you?

    As far as it goes, I think the remedy they suggest – changing federal drug law – is a good one and should be done; we shouldn’t rely on the courts to make political decisions for us.

    Richard Bennett (869893)

  21. mu point has nothing to do with this particular interpretation. I personally don’t care one way or the other about this issue. I do care that the “Judicial” branch of the government has ceased interpreting the Constitution and has decided to rewrite the constitution. This fact can be deduced both by the Courts actions over many years and the Liberals political fanatacism on Supreme Court nominees. For further consideration see the recent post at Power Line.com concerning the State of Kansas Supreme Court which is just doing at the State level what the U.S. Supreme Courts is doing at the Federal level.

    john (fc4860)

  22. The Powerline bloggers are idiots and you shouldn’t take anything they write seriously.

    I happen to disagree with the decision in Raich, but I think it falls within the parameters of reasonable interpretation of the Commerce Clause. It’s certainly well-grounded in history, and it doesn’t mark any new direction for the courts. This business about the limits of federal power has been fairly squishy since 1936, and it’s not like Moses tells us where they are.

    Richard Bennett (869893)

  23. Richard Bennet, actually, the wheat case was Wickard v. Filburn in 1942. That’s actually the case that knocked us completely off track with respect to the Commerce Clause.

    Actus, there was no substantive due process argument, because there is no fundamental right to a particular treatment. Think about it. If they found an SDP right to any medication, they’d have to shred the FDA.

    In Wickard, the USSC held that a small crop of wheat grown on a dairy farm — for the farmer’s private use — had a substantial impact on interstate commerce. The rationale is that every pound of flour the farmer uses is a pound that he doesn’t buy from interstate commerce sources.

    LibertarianLarry suggests a good point. I’m not sure that the incedental impact theory would apply to an illegal activity. However, LL, I think you’ve missed the point when you argue that the citizens of the states voted to make marijuana legal. The question in the case is whether the feds can regulate marijuana in spite of the people’s vote. So, you’ve really only just restated the question.

    Finally, xrlq, I don’t agree with your negative commerce clause analysis that it would only prohibit discrimination against out of staters. That’s the privileges and immunities clause, not the negative commerce clause.

    David Hiersekorn (49471d)

  24. Congress can pass a law making apples illegal nationwide, then apples are illegal in Washington state. Congress can pass a law making marijuana illegal nationwide, then marijuana is illegal in California. Where is the problem? Why the fuss.

    RJN (2b8289)

  25. I think the Court got caught in an awkward posture on this because it was actually trying to find some marijuana for the lady, but just could not

    RJN (2b8289)

  26. I thought for sure that the SCOTUS would discover an “emerging consensus” in the states for medical marijuana. Silly me.

    Ray Zacek (118026)

  27. Yes, Wickard was about the wheat, and Morrison was about feminism. Silly me.

    Richard Bennett (869893)

  28. “It’s quite another to raise the same argument where the affected market is an illicit market the federal government supposedly wants to stamp out. Is the federal government really losing any sleep over the possibility that too much much home-grown pot will make the national drug dealing industry unprofitable?”

    I don’t see anything in the commerce clause — or the wickard type reasoning — that tells me they can only get jurisdiction when they are making things profitable, rather than un-profitable. Or whether the commerce that is regulated is legitimate or not. Meeting a need yourself still takes you out of the interstate commerce, and still affects it, whether it is legal or not. That’s whats needed for jurisdiction — if you accept wickard.

    “Actus, there was no substantive due process argument, because there is no fundamental right to a particular treatment. Think about it. If they found an SDP right to any medication, they’d have to shred the FDA.”

    I’m sure it wouldn’t have to be a maximal right, but the point is that liberals aren’t against the federal drug war, but against all the drug war.

    actus (3be069)

  29. I’m still waiting and hoping that Clam — the only person so far to claim that a case can be made for this decision under the negative (or dormant) commerce clause doctrine, though I don’t think that is the argument that Stevenson used — will show up and defend it.

    As it is, it sounds completely ridiculous.

    FAIR WARNING: I am not a lawyer. I am not a law-school grad. I have never been to law school. I know only what a reasonably well educated layman knows about the law. Therefore, I feel eminently qualified to make pronouncements about the law. So there.

    The point of the doctrine is to prevent states from enacting legislation that would have a significant impact on (legal) interstate commerce, on the theory that interstate commerce is the responsibility of Congress — even if Congress hasn’t exercised that option in a particular case.

    I cannot imagine that the Court would rule that negatively impacting a commerce that is already completely banned (interstate sale of marijuana) violates the regulatory powers of Congress. So what commerce could Clam mean?

    The only thing that springs to mind is the legal interstate commerce in antiemetics: perhaps the Court frets that if marijuana turns out to be better at relieving nausea and increasing appetite than prescription drugs, the use of dope might interefere with that industry.

    But this, too, is so absurd it would be hard to imagine anyone but, say, Judge Thelton Henderson writing it in an opinion. This would mean, for one obvious example, that the Court could also strike down state laws allowing the sale within the state of some local peppermint-based product to settle the stomach, since that too could interfere with interstate commerce of antiemetics.

    Look, either Article I, Section 8 has some meaning — that an enumeration of powers implies a restriction to those powers — or else, if those powers are assumed from the git-go because Congress has ALL power, then you have to assume the framers of the Constitution were just rambling on to no purpose, and they could have added other powers: the Congress shall have power to regulate the size of ponies for kiddie rides; the Congress shall have the power to engage in Morris dancing on alternate Thursdays, and so forth.

    The way Clam phrased his point —

    I believe that the negative commerce clause (that state regulation cannot substantially burden interstate commerce) supplies a non-objectionable (to a conservative) approach to validating the application of the law even to people like Raich- California cannot pass a law like Prop. 215, which substantially affects federal commerce enforcement.

    — clearly implies not that he thinks a court might reason that way, but rather that he, personally, thinks it’s correct to reason that way.

    The other alternative interpretation of Clams’s claim is that he meant that the doctrine of the negative commerce clause should be used as an analogy to extend congressional legislative power to trump any state law that might make it harder to enforce any federal law.

    But this, for example, would mean that if the citizens or legislature of a state were to enact legislation authorizing, for example, same-sex marriage — which would seem to be a state issue, at least within the state itself — that a federal court should strike this down because it makes enforcement of the federal Defense of Marriage Act harder: after all, suppose a woman named Robin Smith marries Marilyn Jones in Massachusetts; if they filled out a federal 1040, filing jointly under the names “Robin and Marilyn Smith.” If audited, their attorney could present a marriage certificate with those names, making it unlikely that the IRS would challenge the claim, not realizing that Robin is another female.

    (That would, by the way, fly directly in the face of the debate about that very law… wherein the Republicans argued that it only set federal standards for marriage for federal programs and to determine whether other states had to honor a particular marriage; they argued rather emphatically that the law would not prohibit any state from enacting same-sex marriage… which is one reason the law passed so overwhelmingly.)

    Are conservatives really willing to go this far, saying that states should have essentially no power whatsoever to regulate anything within their own borders? Does Clam really want America run more like France, where Paris decides everything for everybody?

    I eagerly await his return to this discussion!

    Dafydd

    Dafydd (df2f54)

  30. Dafydd, you’ve done a pretty good job for a non-lawyer, but your analysis could use a little tweaking. First, you have to think of commerce as a thing in its own right — not as a collection of separate industries. In other words, they wouldn’t have to identify — as you have — the particular industry that would be affected.

    The doctrine is expressed in two ways. First, the commerce clause vests congress with the power to regulate commerce between the states. Under Wickard v. Filburn and subsequent cases, the Court has held that the commerce power extends to private activities that, in the aggragate, have a substantial impact on interstate commerce. As in Wickard, the reasoning would be that people growing private-use marijuana would not be purchasing it elsewhere, and by extension, it would have an impact on interstate commerce. We could go nuts trying to resolve one particular issue, but I don’t believe that it matters that a person cannot legally purchase marijuana in interstate commerce. (Otherwise, the commerce clause would only apply to affirmative regulation and not to the banning of any practice or substance.)

    The dormant commerce clause basically says that states cannot make regulations that interfere with regulations that congress has already made. The question is whether congress intended to “occupy the field” or whether they intended to leave room for further regulation. When, as here, congress has initiated a wholesale ban on a substance, that would be a per se expression of an intent to occupy the field. (Note, that Thomas and Scalia have both questioned whether there is any such doctrine as the dormant commerce clause.)

    To answer your closing question, today’s opinion doesn’t affect a state’s general ability to regulate activities within its borders. It only holds that the commerce clause extends to private-use marijuana. It would be a huge stretch to draw a comparison to same-sex marriage, for example.

    David Hiersekorn (49471d)

  31. Actus:

    I don’t see anything in the commerce clause — or the wickard type reasoning — that tells me they can only get jurisdiction when they are making things profitable, rather than un-profitable. Or whether the commerce that is regulated is legitimate or not. Meeting a need yourself still takes you out of the interstate commerce, and still affects it, whether it is legal or not. That’s whats needed for jurisdiction — if you accept wickard.

    As a mechanical jurisdictional hook, it does seem to get applied that way these day, but IIRC it was not the reasoning laid down in Wickard itself. There, Congress’s objective was to protect and subsidize the wheat industry, so there’s a certain logic to restricting certain otherwise noncommercial activities that tended to undermine that objective. Those arguments make no sense where the industry in question is one Congress wants to undermine.

    David:

    Finally, xrlq, I don’t agree with your negative commerce clause analysis that it would only prohibit discrimination against out of staters. That’s the privileges and immunities clause, not the negative commerce clause.

    It’s both, with the caveat that one applies to goods and the other to people. You, on the other hand, appear to have confused the dormant commerce clause with preemption:

    The dormant commerce clause basically says that states cannot make regulations that interfere with regulations that congress has already made.

    Nope. The dormant commerce clause says that where Congress is silent, it is presumed to have prohibited state activities that substantially burden interstate commerce, usually (though not necessarily always) in a discriminatory fashion. Take, for example, the recent wine case, which held that the dormant commerce clause prohibits states from barring direct wine shipments from out of state while allowing them in-state.

    Xrlq (6c76c4)

  32. Xrlq,

    “It’s both, with the caveat that one applies to goods and the other to people. You, on the other hand, appear to have confused the dormant commerce clause with preemption.”

    I misspoke. You are correct.

    David Hiersekorn (49471d)

  33. I’ve already semi-layed out why I think Raich was correctly decided in comments at Xrlq’s blog. I think Scalia had the right idea in fleshing out the necessary and proper idea. I don’t quite understand how the negative commerce clause would allow for regulation here, there’s either a power, or there isn’t.

    Joel B. (3243ec)

  34. Can a Canadian layman offer a thought or two (and can said thought be legally transported interstate; only your SCOTUS knows for sure)? Anyway …

    Time for a constitutional amendment re the commerce clause? Perhaps a clarification that it applies only to goods and services directly, and not tangentially, related to interstate commerce? Or one allowing the Senate to determine what is, and is not, interstate commerce in cases where, say, 25 or more Senators request a vote on the matter?

    You get the idea.

    ras (f9de13)

  35. In theory that would be a good idea, ras; but in practice, it’s really, really hard to pass a constitutional amendment.

    The last one enacted was first sent round in 1789, as one of the original twelve amendments — ten of which became the Bill of Rights. This one was not ratified until it was resurrected recently, finally winning enough states in 1992 to become the 27th Amendment.

    The one before that was sent to the states in 1971, lowering the voting age from 21 to 18. So no amendment has been proposed and ratified in the past thirty-four years, with at least one significant failure, the Equal Rights Amendment.

    I think it would be difficult to get, say, an anti-same-sex-marriage amendment through the House and Senate with 2/3rds support; if it did, I think it would be much easier to get thirty-eight states to ratify it… but that first hurdle is a doozy. And that’s with an amendment that enjoys significant support here!

    For a “commerce clause” amendment, the first hurdle would be getting past the “huh?” reaction.

    Dafydd

    Dafydd (df2f54)

  36. Xrlq:”Those arguments make no sense where the industry in question is one Congress wants to undermine.”

    That’s why we don’t make the argument that congress is trying to promote the industry. We make the one that it is simply trying to regulate the interstate commerce.

    But apparently Scalia went into necessary and proper. Which we’re ignoring.

    actus (3be069)

  37. […] and you support medical marijuana, then take a cue from Justice Stevens’s language (quoted earlier by the Angry Clam) and write your Congresscreature […]

    Patterico’s Pontifications » Patterico Weighs in on Today’s Medical Marijuana Decision (0c6a63)

  38. Congress has the right to make laws forbidding importation of things into the US, taxing things imported into the US and regulate how things are exchanged among citizens of the several (different) States. That is what Interstate Commerce means. Affecting commerce is not what Art. I, Sec 8 says; so Congress has no right to ban production, possession, use, and/or trade among citizens of any single state. If that was what the writers wanted, then they would have explicitly said so. The Harrison Narcotic Act and its successors are all unconstitutional unless they are limited to importation into the US and exchanges among citizens not from the same state.

    Social Security, Medicare, Medicaid, and a long list of current Federal expenditures are all unconstitutional. If I were President, the total budget would be on the order of $600 billion, not the $2.6 trillion it is currently.

    Charles D. Quarles (593219)

  39. For a “commerce clause” amendment, the first hurdle would be getting past the “huh?” reaction.

    The second would be persuading Congress to give up its extraconstitutional powers and pass it.

    Xrlq (717f9d)

  40. After all, it’s one thing to make that argument to protect a licit market, e.g., wheat, which the government does not want undermined by unwanted private, ostensibly noncommercial competition.

    What are you doing, Xrlq? Defending Wickard??

    It’s “one thing,” indeed: one totalitarian thing.

    Patterico (756436)

  41. By the way, if anyone wants to read my take (not sure why you would), it’s here.

    Patterico (756436)

  42. No, I’m not defending Wickard. I don’t see it as a blueprint for totalitarianism, as you seem to, but there’s no question it’s a horrible case for federalism. My only point here is that even if we were to concede the basic premise of Wickard, yesterday’s ruling would still have been unnecessary.

    Xrlq (e2795d)


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