Patterico's Pontifications


Patterico Weighs in on Today’s Medicinal Marijuana Decision

Filed under: Civil Liberties,Court Decisions,Crime — Patterico @ 9:47 pm

I have read Gonzales v. Raich. And I’m not happy, either with the decision, or with my (usual) hero Antonin Scalia, who wrote an unconvincing concurrence. But I’m more and more impressed with Clarence Thomas.

Almost no case disturbed me in law school as much as Wickard v. Filburn. To me, this decision held more potential for totalitarianism than any other.

Wickard ruled that the federal government may put a quota on how much food a citizen can grow for personal use on his own property. You know: like they did in Communist Russia. The theory was that the government has the right to control the supply and demand of goods on the open market. Allowing citizens to grow their own food would reduce demand for that food on the open market, creating undesirable surpluses.

When the government can tell you how much food you can grow for your own use, there’s little it can’t do. It would be difficult to imagine a more serious infringement on personal liberty.

The Supreme Court had a golden chance to overrule Wickard v. Filburn today, and it declined to do so. Apparently the parties did not even ask the Court to do so, and no Justice even discussed the possibility. To the contrary, in ruling that the federal government may limit citizens’ right to grow marijuana on their own land for their own personal consumption for medicinal purposes, the Court relied heavily on Wickard, cementing its ignominious place in our constitutional jurisprudence. That’s a shame. The biggest shame is that my favorite justice, Antonin Scalia, concurred with this decision.

As I read the decision, the basic theory is this: the federal government may limit purely personal cultivation and consumption of marijuana, because what is personal today could easily become commercial tomorrow. Once marijuana is grown, it can be easily sold to others. This will create a supply for a good that the federal government wants to eradicate entirely. As Justice Scalia explains in his concurrence:

Drugs like marijuana are fungible commodities. As the Court explains, marijuana that is grown at home and possessed for personal use is never more than an instant from the interstate market—and this is so whether or not the possession is for medicinal use or lawful use under the laws of a particular State.

Ergo, the government has the right to control such personal cultivation. My new hero Clarence Thomas has an excellent riposte to this argument:

[U]nder the CSA [Controlled Substances Act], certain drugs that present a high risk of abuse and addiction but that nevertheless have an accepted medical use— drugs like morphine and amphetamines—are available by prescription. 21 U. S. C. §§812(b)(2)(A)–(B); 21 CFR §1308.12 (2004). No one argues that permitting use of these drugs under medical supervision has undermined the CSA’s restrictions.

If getting morphine by prescription doesn’t undermine the federal government’s drug laws, why does carefully limited cultivation of marijuana for medicinal purposes pose such a threat?

In my view, Justice Thomas has it exactly right:

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.

. . . .

If the majority is to be taken seriously, the Federal Government may now regulate quilting bees, clothes drives, and potluck suppers throughout the 50 States. This makes a mockery of Madison’s assurance to the people of New York that the “powers delegated” to the Federal Government are “few and defined,” while those of the States are “numerous and indefinite.” The Federalist No. 45, at 313 (J. Madison).

My only problem with Thomas’s opinion is that he doesn’t argue that Wickard must be overruled.

I don’t like Justice O’Connor’s concurrence as much as I like Thomas’s, but I agree with this sentiment:

Relying on Congress’ abstract assertions, the Court has endorsed making it a federal crime to grow small amounts of marijuana in one’s own home for one’s own medicinal use. This overreaching stifles an express choice by some States, concerned for the lives and liberties of their people, to regulate medical marijuana differently. If I were a California citizen, I would not have voted for the medical marijuana ballot initiative; if I were a California legislator I would not have supported the Compassionate Use Act. But whatever the wisdom of California’s experiment with medical marijuana, the federalism principles that have driven our Commerce Clause cases require that room for experiment be protected in this case.

I entirely agree — and I did vote against Proposition 215. I think it cynically provides potheads an end run around the marijuana laws. If we’re going to legalize narcotics, let’s do it in a straightforward manner.

If you disagree with me, and you support medicinal marijuana, then take a cue from Justice Stevens’s language (quoted earlier by the Angry Clam) and write your Congresscreature. When it comes to the alleged benefits of medicinal marijuana to very ill people, the blame (if blame is to be assessed) for removing that option lies with Congress, not with the Supreme Court. If you want the law to change, Congress is where you should go.

But ultimately, this decision is not about medicinal marijuana; it’s about the power of the federal government. However you feel about medicinal marijuana, we should all agree that it’s not a good idea to give the federal government the power to do any damn thing it wants to.

42 Responses to “Patterico Weighs in on Today’s Medicinal Marijuana Decision”

  1. I entirely agree — and I did vote against Proposition 215. I think it cynically provides potheads an end run around the marijuana laws. If we’re going to legalize narcotics, let’s do it in a straightforward manner.

    This is kind of surprising, Patterico, but this is exactly what I did — and for exactly the same reason. The only distinction (perhaps) is that I would have voted simply to decriminalize all drugs, including prescription drugs, with the only exception being antibiotics for the obvious reason.

    I read Orin Kerr’s discussion of this over on Volokh, and I am utterly appalled by the Wickard case. You really nailed it: if the feds can tell you what you can grow in your own vegetable garden, then there simply is no longer, not since 1942, any restriction whatsoever on the power of the federal Congress.

    But if so, what about the fairly recent Supreme Court case that struck down the federal Gun Free School Zones act? That law was struck down because there was no reasonable relation between banning guns within X feet of a school and interstate commerce. But using the Wickard reasoning, one could note that guns near a school could be sold to gang kids, and that those gang kids could then use the guns to engage in interstate criminal activities — running marijuana, just to pull an example out of my, er, hat. And that such activity would encourage a kind of interstate commerce that Congress was trying to stifle.

    Does that mean that the same people who overturned that law in the 1990s would now vote to uphold it? There has been not a single change on the Court since then, I believe — so who changed his mind?


    Dafydd (df2f54)

  2. The Justices who “changed their minds” are Kennedy and Scalia. They would tell you that today’s is a different case — but I think Justice O’Connor makes a good point that the only difference is the way the law was drafted:

    If the Court is right, then Lopez stands for nothing more than a drafting guide: Congress should have described the relevant crime as “transfer or possession of a firearm anywhere in the nation”—thus including commercial and noncommercial activity, and clearly encompassing some activity with assuredly substantial effect on interstate commerce. Had it done so, the majority hints, we would have sustained its authority to regulate possession of firearms in school zones.

    I think that’s the point you’re making as well. If so, then you and Sandra Day see eye to eye.

    Patterico (756436)

  3. Scalia was never a Constitutionalist. He merely took that tack because it seemed the best means for his ends. Bork is another of his ilk.

    I have been saying that for years.

    Many of my brothers on the right derrided my claims.

    Well no one is laughing now. Not even me.

    BTW science is beginning to show that chronic drug use is caused by chronic pain/fear. PTSD mostly.

    i.e. drug use is a symptom and drugs are not the cause. Which is why prohibition is such an abject failure. People in pain will not give up their meds no matter how draconian the law.


    Prohibition is a price support system for criminals. Heaven knows the criminal class needs all the help it can get. But I understand why Congress would favor such a regime.

    Professional courtesy.

    M. Simon (efcb45)

  4. Looking at this decision from the other side, I have to ask, “Isn’t the federal government able to regulate the private production of plutonium, anthrax, etc. (say if Rhode Island made such a thing legal)?”

    What if California decided to cultivate large amounts of MJ “for private use only”?

    Nationally, we decided to ban certain drugs. Can any state undermine a national effort to protect the nation from the corrosive threat of such drugs?

    There is no natural criterion that comes to mind to separate intrastate commerce from interstate commerce. Some state decisions do affect the national interests and may be legitimately restricted by the national government (immigration or plutonium production for example).

    This is a battle between state and national legislatures (i.e. states amongst themselves by extension), not necessarily a power grab by the court. We don’t need another opium epidemic. The court has rightly decided to remove itself from this situation and let the national legislature decide the situation.

    Paul Deignan (664c74)

  5. “When the government can tell you how much food you can grow for your own use, there’s little it can’t do. It would be difficult to imagine a more serious infringement on personal liberty.”

    but wickard wasn’t about liberty. It was a federalism case. It was about which level of government can tell you what to grow, not whether any of them can.

    actus (3be069)

  6. 1) Federalism isn’t related to liberty? But more importantly:

    2) [Wickard] was about which level of government can tell you what to grow, not whether any of them can.

    Not so. It’s about the extent of Congress’ power under the Commerce Clause. The Tenth Amendment isn’t discussed. The decision relates to federalism only to the extent that the scope of the Commerce Clause tells us how extensive is the federal government’s power to legislate, which tells us what powers have been retained by the people (which, under the structure the Constitution, means by the States. Read Clarence Thomas’s decision in the term limits case for a good exposition of that concept). That’s far more a question of liberty than it is about whether states could pass a similar regulation. Indeed, the opinion references that latter issue only in passing, and without rendering any judgment.

    The decision is linked above in the post, if you want to read it.

    Patterico (756436)

  7. Generally, it appears that Scalia is being given a bad rap in the blogosphere after Raich. This is undeserved.

    If the regulation of Controlled Substances in interstate commerce falls within the commerce clause, the question of whether or not Congress can regulate possession of controlled substances will turn on whether that regulation is necessary and proper. It seems somewhat clear to me that the interstate regulation of controlled substances virtually requires the regulation of intrastate possession and cultivation for it to be effective. Bringing the CSA within the N&P power to implement the Commerce Clause.

    Joel B. (3243ec)

  8. My problem is that, after 1942, there appear to be no more real limitations on the power of the federal government. This case simply reaffirms that. I would have hoped that Scalia would be against such a concept.

    Patterico (756436)

  9. “Not so. It’s about the extent of Congress’ power under the Commerce Clause. ”

    Right. Federalism. Nothing in wickard tells you about the liberty interests in growing wheat. If growing wheat was a liberty interest, states couldn’t ban it either. Can they?

    actus (cd484e)

  10. My problem is that, after 1942, there appear to be no more real limitations on the power of the federal government.

    There are some, a few of which I’ve suggested in Xrlq’s comments. But importantly, if the realm of Interstate Commerce has vastly increased since 1800, and also, what’s N&P for the regulation of Interstate Commerce has increased is it any surprise that the enumerated powers limitation has lessened. I do readily concede that limits on federal power are much more limited than they use to be, but that’s the way it has to be.

    It may be depressing, but is that the fault of the court? As much as fault my be determined it would seem to lie more with the establisment of efficient markets, the automobile, and airplane.

    Joel B. (3243ec)

  11. I didn’t say it was a “liberty interest,” Actus. I said that a decision that expensively construes the federal government’s power is a decision that infringes on our liberty.

    You countered by saying that Wickard was “about which level of government can tell you what to grow, not whether any of them can.” I say that’s wrong. Just where in Wickard does the Court hold that states can tell you how much food you can grow?

    Patterico (756436)

  12. Patterico, I have to agree with Actus on this one. Wickard didn’t explicitly state that states can pass wheat control laws, but ever since the courts ditched Lochner v. N.Y., no one seriously doubted that they could. Remember, the general is that states can do everything the Constitution doesn’t prohibit, while the federal government can only do what it explicitly allows. That’s why the federal power to regulate wheat production was at issue in Wickard; the Constitution doesn’t say anything about wheat.

    If an identically worded state law had been at issue, Wickard would have been a wickedly easy case.

    Xrlq (e2795d)

  13. So much for the Constitution

    Want to smoke some home-grown dope?

    Silicon Valley Redneck (af7df9)

  14. I agree with M. Simon and I’ve been making this same argument for years. Scalia is not really an originalist, he’s an originalist when originalism leads to the result he likes. When it doesn’t, he discards it and uses a different tool of judicial analysis to reach the result he prefers. Clarence Thomas is a far more consistent originalist than Scalia, which is why I get so annoyed when I hear people claim that Thomas is Scalia’s lapdog (which is the conventional wisdom among those who don’t actually bother to read the opinions these men write). And that’s coming from someone who is generally critical of conservative originalism in the first place.

    Ed Brayton (0add86)

  15. ” Just where in Wickard does the Court hold that states can tell you how much food you can grow?”

    It doesn’t. But do you really think that it is unknown?

    actus (cd484e)

  16. Ed, I think that’s sorta right, but sorta not right. I don’t believe Antonin Scalia is a big fan of flag burning, but he wrote the lead opinion in the case that upheld it. I do think he has an unfortunate tendency to rely too heavily on precedent, however. Justice Thomas’s style (and mine) is more along the lines of “follow the Constitution, precedent be damned.”

    Xrlq (5ffe06)

  17. Patterico,

    If you look at the decisions the fatal error was not in 1942 but in the 1870s when the meaning of Commerce was changed to promote some “progressive causes”.

    Sound familiar?

    M. Simon (efcb45)

  18. Hi Xrlq,

    Spot on, man! Justice Thomas’ style is exactly what the style should be for all nine. Government isn’t God, isn’t absolutely good or noble; and therefore, must be strictly limited.

    Charles D. Quarles (593219)

  19. Patterico – while it’s true that Thomas didn’t explicitly call for the overrulling of Wickard, I thought it was pretty clear from his opinion that he would prefer that Wickard be overturned. There is no easy way to read his opinion as supporting Wickard, at any rate.

    aphrael (e0cdc9)

  20. Xrlq,

    Read Actus’s statement again:

    It was about which level of government can tell you what to grow, not whether any of them can.

    How was Wickard about which level of government can tell you what to grow?

    I’m not going to get into an argument about whether states could enact the same laws; that’s not the point — and you and Actus both admit that issue wasn’t addressed in Wickard. The point is that, all other things being equal, the decentralization of power gives citizens greater liberty, because it gives them greater control over the legislative process.

    Yes, Actus, I know you can come up with snarky examples of oppressive state laws. Save them. Both state and federal governments are equally capable of passing oppressive laws. I said “all other things being equal.”

    The point is that citizens can more easily lobby their state governments to change the law than they can lobby the federal government. That’s why one of the basic concepts of the Constitution is that the “people” (meaning the States) retain the political authority that is not granted to the federal government. In my opinion, that structure (if the Supreme Court were actually to respect it) leads to far greater individual liberty than a structure that centralizes all lawmaking power in a single federal government.

    To make my point concrete, I’ll bet you that if Wickard had come out differently, the states of the Union would not have unanimously passed similar laws within their own jurisdictions. And the governments of those states that did be more responsive to the local political pressure of any citizens dissatisfied with the law.

    Net effect, in my opinion: more liberty.

    Patterico (f389c7)

  21. Aphrael:

    I agree.

    Really, this opinion is an extension of Wickard — a case that didn’t need to be extended, but overruled.

    Now for the $64 question:

    How do y’all think Supreme Court Justice Janice Rogers Brown would rule on a case like this? And would that be a good thing or a bad thing?

    Patterico (f389c7)

  22. Where liberals have gone wrong is in relying upon an expanding and mysterious group of “rights” the existence of which is subject to the whims of unelected judges. Conservatives would rather stake their claim to liberty on the premise that the authority granted to a centralized government is limited in scope. If that leaves power to the States, I’d rather trust the electorates of the States. At least they can change their minds. When judges read made-up rights into the Constitution, that can’t be easily changed.

    Patterico (f389c7)

  23. Joel B.,

    One must look at purposes. What was the purpose of The Interstate Commerce Clause: to increase interstate commrece.

    How you can square that with limitations on the amounts of a commidity that can be produced is a wonder.

    BTW the market in question (pot) is acknowledged to be a black (unregulated) market. So here you have California trying to bring some regulation into the market (for the sick) and the Feds are against it.

    And the arguments on the Federal side explicitly stated that the Feds had an interest in making a black market and making sure that any one wanting pot had to go to that market. An odd way to regulate interstate commerce to be sure.

    The Feds all but explicitly stated that they had an interest in creating a criminal distribution system.

    What is the Federal interest in creating criminals? The more criminals the greater need for government services. Police, prisons, etc.

    This all happened before during alcohol prohibition.

    Well you know what “they” say: “but drugs are different”.

    Basically we have socialized a criminal class through a Federal price support system. Socialism at work. Well you know how it is with conservatives: socialism is fine if it supports their policy goals and gets them votes. Otherwise it is real bad.

    M. Simon (efcb45)

  24. Patterico is correct about rights which are essentially unlimited. However, I think his point of view need tweaking.

    We have gone from unlimited rights to enumerated rights because there are no limitations on government.

    To keep some semblance of freedom Judges have to keep “inventing” rights as a check on government power. In that respect Patterico is absolutely correct. However, the rights are not really invented. We always had them. Individuals have rights that not even State Governments can abrogate.

    Our founding document The Declaration explicitly so states. The Constitution is merely implimenting legislation.

    M. Simon (efcb45)

  25. Patterico,

    I think Brown would side with Thomas.

    We could really use about 4 or 5 more libertarian justices on the Supreme court.

    M. Simon (efcb45)

  26. One must look at purposes. What was the purpose of The Interstate Commerce Clause: to increase interstate commrece.

    It’s worth noting, that Scalia, is not an “originalist,” as much as a textualist the two are different. Very different. Quite frankly the intent or purpose behind the constitutional text is wholly irrelevant where the text is clear, if the purpose was so manifest that it should limit the clause, the drafters should have written it so. They did not.

    As it is written, the Commerce Clause gives the power to regulate interstate commerce. That includes (given no restriction on the power within the constitution) the power to forbid the entrance of something into interstate commerce. If, then the power to regulate interstate commerce of pharmas makes it necessary and proper to regulate home-grown production of certain substances than it squarely falls within the N&P power. Easy, done deal, but apparently this is lost on many.

    Consider also, say we were talking about the family who purchases land in Nevada, and is engaged wholly within the intrastate possession and mining of Uranium. Would we truly say that it is beyond the power of Congress to regulate it? I think not, I think absolutely not. That’s because Congress’ desire to regulate the interstate commerce of uranium includes the N&P power to regulate pretty much wholly intrastate activities.

    Joel B. (3243ec)

  27. Joel, you’ve tot it exactly backwards: Justice Scalia rejects the label “textualist” in favor of “originalist.”

    Xrlq (5ffe06)

  28. My impression is, that where the text is clear Scalia takes that as it is written. It is when the text is unclear, that we look to the “original intent.” I could be wrong, that is just my understanding of his writings and speeches. Or perhaps better put Scalia’s use of the term originalist does not mean that one can go willy nilly past the text, unless it is “a matter of interpretation.”

    Joel B. (3243ec)

  29. Xrlq, I am fairly certain you are wrong about that. I think Scalia goes by both labels, but primarily the “textualist” label. He rejects original “intent” as expressed by things like legislative history, but supports reading the text as augmented by how that text would be *objectively* understood by reasonable people at the time.

    Patterico (3b77ed)

  30. My only problem with Thomas’s opinion is that he doesn’t argue that Wickard must be overruled.

    I think this might have to do with the factual reappraisal that the Respondent’s brief gave to Wickard and exactly how much acreage Fillburn was using for wheat production.

    If you read Respondent’s brief, Wickard isn’t as “Wickard-y” as is commonly thought–Fillburn wasn’t just baking bread for himself. He was several thousand pounds over the (presumably) constitutional limits set in the law passed by Congress. He was then using that excess wheat in his commercial farming operation. Including selling some of that excess wheat.

    You can still uphold Wickard insofar as those facts are concerned–but obviously the language about the non-economic aspect of Wickard’s business amounts to a “substantial effects” test which Thomas wants to get rid of.

    But I think Thomas probably thought it wasn’t necessary to gut Wickard just yet…

    Anyway…back to bar prep…

    Christopher Cross (618486)

  31. Right. And if we have no more constitutional freedom of contract (and we don’t) then *selling* it can be controlled (though I don’t like it). But using it for your own purposes, including commercial farming, should not be regulated on the theory that you should have to buy it at the store. That, to my mind, is totalitarianism.

    Patterico (3b77ed)

  32. Does anybody here have an OED? I am curious what the word “to regulate” meant in 1787. Clearly it means something different in the Second Amendment (“a well-regulated militia,” 1789) than people here — and the Court — appear to be using it anent the Commerce Clause… though it’s possible it had both meanings even 200+ years ago.

    Can one of youse look it up and see what meanings the word had then? That should make a difference to both a textualist and an originalist.


    Dafydd (df2f54)

  33. You’re right; I mixed up the word “textualist” with the phrase “strict constructionist,” which Scalia hates.

    Xrlq (ffb240)

  34. “The point is that, all other things being equal, the decentralization of power gives citizens greater liberty, because it gives them greater control over the legislative process.”

    Other things being equal, moving power to the state level moves power to the people powerful at the state level. Whether they are interested in liberty or not determines whether this move increases liberty or not. Effectively federalizing murder in Philadelphia Mississipi increased liberty because the state was allowing terrorists to run amuck in that place. It didn’t depend on how “close” the authority was but on what the authority was interested in.

    actus (3be069)

  35. Of course you realize that if Wickard were to be overruled, it would pull the rug out from under an awful lot of what Congress has done since – not just drug laws!
    Once a bad decision has stood for a few decades, and more policy has been built on it, and bureaucracy has grown up in support of that policy, undoing the original bad decision gets very disruptive.
    How much of current federal law is based on the premise that Congress has authority over anything six degrees removed from interstate commerce? How many “vital” government programs are built on this?
    Suddenly start enforcing the Tenth Amendment, and the whole grand edifice built up since the New Deal comes tumbling down. Personally, I’d like to see most of it dismantled, but in an orderly fashion.

    Eric Wilner (3936fd)

  36. See, I think using it for commercial purposes (incl. commercial farming) is less “defensible” under Commerce Clause grounds than is the purely non-economic use.

    Is/Should the gov’t be precluded from regulating commercial activity even if wholly within a state?

    I think so long as the activity is economic (leaving aside for the moment whether it is sufficiently “commerce” under Thomas’ view), then Congress is on pretty solid originalist constitutional footing in regulating it.

    If Congress could completely ban all direct commercial uses of a given commodity as well as the use of any product having moved in interstate commerce from being used in connection with this banned commodity (presumably they can do this), or ban from traveling on any channel of interstate commerce said commodity, it’s hard to argue that they somehow cannot also prohibit certain indirect commercial uses (the commercial farm for instance)

    Wheat for personal consumption? Non economic and not regulable.
    Wheat for use as feed in cattle which you intend to sell on the market? Economic and regulable.

    Christopher Cross (618486)

  37. Hmmm, WARNING! Non-lawyer here.

    I think the average American has no idea that the government can regulate what (otherwise legal vegetable or fruit) can be grown in the garden whether it is eaten, fed to their own cattle, or left to rot in a silo. (Except in the context of zoning laws, or specific laws for specific plants threatening the local ecology, etc.)

    The idea that legal debate over medical marijuana law is seen in context of interstate commerce like growing too much wheat is not what I would have expected either.

    I have seen few patients in my 21 year career as a physician who claimed they could get relief only by smoking pot, and all of them impressed me as not really interested in trying a multitude of legally available alternatives. That said, for those who really don’t find relief otherwise there is a product being developed in Canada (other than hockey and Northern Pike Fishing) which is a sublingual spray of multiple compounds found in marijuana, not just the synthetic THC (sold as “Marinol”). Apparently this produces satisfactory results for those who have claimed they only get relief from smoking. Hence, any legitimate argument for medical marijuana will be moot and mute.

    Any substance that is linked to a craving so strong that a professional football player (Ricky Williams) cannot stay away from it to save his career and salary of millions of dollars a year doesn’t seem to be harmless to me.

    MD in Philly (b3202e)

  38. As to Wickard: One really should read the whole opinion as it is both impressive and illuminating. The enactment of the relevant statute, and its amendment, were for the purpose of controlling a nationwide wheat glut, and also were an effort to reduce storage costs and prop up prices. The effort had to be national as the whole world was facing surpluses, and ruinous prices.
    Wickard was about a closely encircled specific; it was not about cabbages, or yams. To put things in perspective; at the time of this decision Congress had enacted draft laws that were snatching men, complete with their lives and persons, off of America’s streets and sending many off to die. Did Congress have the authority to do this? It seems, yes, they did.
    I think SCOTUS did its job well, and wrote an elegant and pertinent decision.

    RJN (81fb99)

  39. WICKARD, Secretary of Agriculture, et al.
    No. 59.
    Reargued Oct. 13, 1942.
    Decided Nov. 9, 1942. Following is the last paragraph of the ruling.

    The penalty provided by the amendment can be postponed or avoided only by storing the farm marketing excess according to regulations promulgated by the Secretary or by delivering it to him without compensation; [317 U.S. 111, 133] and the penalty is incurred and becomes due on threshing. 38 Thus the penalty was contingent upon an act which appellee committed not before but after the enactment of the statute, and had he chosen to cut his excess and cure it or feed it as hay, or to reap and feed it with the head and straw together, no penalty would have been demanded. Such manner of consumption is not uncommon. Only when he threshed and thereby made it a part of the bulk of wheat overhanging the market did he become subject to penalty. He has made no effort to show that the value of his excess wheat consumed without threshing was less than it would have been had it been threshed while subject to the statutory provisions in force at the time of planting. Concurrently with the increase in the amount of the penalty Congress authorized a substantial increase in the amount of the loan which might be made to cooperators upon stored farm marketing excess wheat. That appellee is the worse off for the aggregate of this legislation does not appear; it only appears that if he could get all that the Government gives and do nothing that the Government asks, he would be better off than this law allows. To deny him this is not to deny him due process of law. Cf. Mulford v. Smith, 307 U.S. 38 , 59 S.Ct. 648.

    RJN (d09258)

  40. […] Xrlq’s argument, however, predates the terrible Raich v. Gonzales case, which defanged the Lopez and Morrison cases on which Xrlq relies. Raich v. Gonzales breathed new life into Wickard v. Filburn, which I have previously argued “held more potential for totalitarianism than any other” case I read in law school. After Raich, I think it’s clear that the federal government can do just about anything it likes, if there is even a tenuous arguable relationship to interstate commerce. […]

    Patterico’s Pontifications » The Commerce Clause and the Partial-Birth Abortion Ban (421107)

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