Oh JM, my dear. I have waited nearly a month for this response, and I have to say, you did not disappoint. I haven't seen you this fired up since the Citizens United thread!
Anyways, for clarity's sake, I'm organizing this reply into the 3 main areas of discussion:
A. Scalia and Raich
B. Wickard and Raich
C. Wickard and Obamacare A. Scalia and Raich
Yes, Stevens wrote the opinion in Raich
, I know this. First, a note on Kennedy. Kennedy voted with Stevens, with no concurring opinion, which suggests that either a) he disagreed with Stevens but was too lazy to write an opinion, or b) he agrees with Stevens' reasoning. Otherwise, he would've wrote a concurring opinion, or something, and as such, I expect to see Kennedy explain how he gets out of applying Raich
, if he writes an opinion on Obamacare.
Now as far as Scalia goes. First off, while he may not have gone on about Wickard
in the same way that Stevens did, that is no less damning. Yes, he wrote a concurring opinion, but it was a concurring
opinion, not a concurring opinion in part, and a dissent in part, or a straight out dissent. Obviously Scalia doesn't disagree completely with Stevens in this case. And besides, don't you find it rather curious that, just years after Lopez
, we have a case that brings back Wickard
, which is perhaps the most expansive reach of federal power in the history of US jurisprudence, and an opinion that's written by Stevens
of all people? Jesus Christ, JM, Scalia jumped on Stevens for probably 20 years at every given opportunity, especially when it came to 4th amendment cases... and yet here.. totally chill with Stevens.
We don't see anything like Thomas' opinion, where he writes:
"Certainly no evidence from the founding suggests that "commerce" included the mere possession of a good or some personal activity that did not involve trade or exchange for value. In the early days of the Republic, it would have been unthinkable that Congress could prohibit the local cultivation, possession, and consumption of marijuana...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."
And O'Connor, discussing federalism and the laboratories of states:
"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."
What of Scalia, JM? Well, he doesn't seem to have any problem with this whatsoever. Keep in mind Rehnquist dissented as well, and given that he WROTE Lopez
, I think that says something. Admit it man, Scalia is pulling some shuck and jive here. Scalia, indeed, isn't really a conservative. He is, rather, a Republican, and an unprincipled one at that- conservative when it suits his ideology, and all for big government when it does not. Look, I don't like pot smoking hippies either. They smell bad, are poor dressers, and are generally pretty retarded. But I know an overreach of federal power when I see it, and Raich
Yes, I do know Scalia tries to make a distinction. And while you label my last post pathetic, what is truly pathetic is Scalia's attempts to weasel his way out of this. First, yes indeed Scalia just discusses Wickard
in a footnote, but that footnote is all I really need to make my point, as in the footnote Scalia seems to have no problem whatsoever with Wickard
. You say he suggests a limitation to Wickard
. May I ask, excatly how? I'm not seeing it.
Second, Scalia is unfair to, and inadequately responds to, O'Connor's dissent. I understand completely his argument JM- that the necessary/proper gives birth to the substantially effects test; and that the test reaches non-economic intrastate activity. My question for you is two-fold: a) how in the world is Scalia's opinion a limitation upon substantial effects, and b) how can Scalia's application of substantial effects in this case, not be seen as complete undercutting of the primary thrust in Lopez
In other words JM, I think O'Connor is on to something when she states that Scalia's view of substantial effects reduces Lopez
to a "drafting guide."
I'm not buying your argument that Scalia actually limits substantial effects in any way. He says in one paragraph that proper application of the test would not undercut what is truly national and local, and then in the next paragraph, basically uses the test to reach a non-econoimc, purely local activity... because why? Well, it would undercut national regulation. And how? Because a small bag of pot is a moments notice from the interstate market? SERIOUSLY?
Go back and look JM- that's his justification, and we both know it's retarded. Whether Scalia admits it or not, this is the same sort of reasoning that the government relied upon in Lopez
.. that bullsh-t about how non-economic activities in the aggregate, somewhere down the line, you know... eventually get to interstate commerce. It's too attenuated, and if you give O'Connor's dissent a fair reading, I think you'll agree.
Of particular note is her quotes here: "the Court sanctions an application of the federal Controlled Substances Act...without any proof that the personal cultivation, possession, and use of marijuana for medicinal purposes, if economic activity in the first place, has a substantial effect on interstate commerce...the case before us is materially indistinguishable from Lopez and Morrison."
And note: "Today’s decision allows Congress to regulate intrastate activity without check, so long as there is some implication by legislative design that regulating intrastate activity is essential (and the Court appears to equate “essential” with “necessary”) to the interstate regulatory scheme."
Don't you see what she's on to here? Scalia, by implication, seems to agree with the natural consequence that O'Connor fears and he basically seizes the opportunity to expand federal power in just this way. If you think about it, Morrison
could've been drafted in a way that would implicate some fictional "interstate market," but that would be an instance of form over substance. Scalia, by virtue of his concurrence, seems to be ok with that. O'Connor echoes that point here: "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."
Finally, note where O'Connor f-cking schools Scalia right here: "something more than mere assertion is required when Congress purports to have power over local activity whose connection to an intrastate market is not self-evident. Otherwise, the Necessary and Proper Clause will always be a back door for unconstitutional federal regulation....Indeed, if it were enough in “substantial effects” cases for the Court to supply conceivable justifications for intrastate regulation related to an interstate market, then we could have surmised in Lopez that guns in school zones are “never more than an instant from the interstate market” in guns already subject to extensive federal regulation...There is simply no evidence that homegrown medicinal marijuana users constitute, in the aggregate, a sizable enough class to have a discernable, let alone substantial, impact on the national illicit drug market–or otherwise to threaten the CSA regime."
BAM. I need say no more. So much for Scalia's f-cking retarded "pot is a moment away from the interstate market" bullsh-t. B. Wickard and Raich
You state that Wickard
necessitates the decision in Raich
. My my my, JM... to what lows you will go to defend your home boy Scalia. I have two responses, and two responses are all I need.
First, even if that was the case, one could use the opportunity to OVERRULE the case. Wickard
was, to borrow a phrase of Kennedy: "not correct when it was decided, and it is not correct today. It ought not to remain binding precedent."
Second, O'Connor deals rather nicely with Wickard
. There are two arguments here-
actually involved an effect on the interstate market: "consumption of homegrown wheat was the most variable factor in the size of the national wheat crop, and that on-site consumption could have the effect of varying the amount of wheat sent to market by as much as 20 percent," contrast to Raich
: "Nor has it shown that Compassionate Use Act marijuana users have been or are realistically likely to be responsible for the drug’s seeping into the market in a significant way."
carved out an exception for small producers, whereas Raich
was sweeping in scope: " The AAA itself confirmed that Congress made an explicit choice not to reach–and thus the Court could not possibly have approved of federal control over–small-scale, noncommercial wheat farming. In contrast to the CSA’s limitless assertion of power, Congress provided an exemption within the AAA for small producers." C. Wickard and Obamacare
Let me point out, as a preliminary manner, that politically speaking, I am lukewarm on Obamacare at best. Although I am Republican in the moderate/liberal sense, and recognize that Obamacare really is just Bob Dole's old health plan, I am not particuarly convinced that the individual mandate will have much of an effect on the health care costs.. primarily for the reason that I don't think the tax penalty serves as a sufficient disincentive to economically shape the market.
But. As a constitutional matter, I am having difficulty seeing exactly why this case is substantially different from Wickard
. If I was on the bench, I would probably rule Obamacare unconstitutional, but I would do so by overruling Wickard
. You go on and on... and then go on and on some more... about one point really. The difference between buying something and being prohibited from doing something. Yeah sure, I'll agree that distinction is one of first impression, but Wickard
, assuming its not overruled (which it should be), provides ample guidance to the Court and has to be dealt with.
You state this is a fundamental difference. I really don't think so JM. It's a semantic difference. I'll agree with you that it's different in "kind," but not really in type and certainly not in degree. You write that "Commerce clause jurisprudence, thankfully, is not predicated upon considerations of intrusiveness."
No no NO, JM. That's a central consideration.. in fact, one could say the third prong of Lopez
, i.e. the substantial effects test, essentially turns on a degree of intrusiveness. Consider Lopez
.. one of the biggest problems the Court had was that the statutes were essentially criminal laws that affected activity that was non-economic, and only reached an interestate market in some attenuated, aggregate fashion. Essentially the court is saying the federal govt is intrusive- i.e. over-reaching into a traditionally state role of government, and coming close to enacting a federal police power. Florida
seems to echo my point there, by stating "two overarching considerations within the Supreme Court’s Commerce Clause jurisprudence: (1) preserving the federal-state balance and (2) withholding from Congress a general
So yes, while Lopez gives us a three-prong test, we must also consider the crux upon which all Commerce Clause rests upon, those two principles above.
Now let's look at the recent decision in Florida v. US
, JM. A couple of key quotes I think you should consider.
"Whereas the parties and many commentators have focused on this distinction between activity and inactivity, we find it useful only to a point. Beginning with the plain language of the text, the Commerce Clause gives Congress the power to “regulate Commerce."...The nature of Chief Justice Marshall’s formulation presaged the Supreme Court’s tendency to describe commerce in very general terms, since an attempt to formulate a precise and all-encompassing definition would prove impractical...we are not persuaded that the formalistic dichotomy of activity and inactivity provides a workable or persuasive enough answer in this case. Although the Supreme Court’s Commerce Clause cases frequently speak in activity-laden terms, the Court has never expressly held that activity is a precondition for Congress’s ability to regulate commerce.
...Simply put, the individual mandate cannot be neatly classified under either the “economic activity” or “noneconomic activity” headings."
Read, and re-read that bolded sentence JM. You're gonna have to do better than just saying OMGLOL THIS IS NON-ACTIVITY. My response, and the response of the Court in Florida
, is.. uh.. so f-cking what?
The fact that it is non-activity does not automatically render it unconstitutional, and if you think so, you're gonna have to explain to me why. Instead, we have to look at cases that are perhaps the most similar, such as Wickard
and general principles of federalism and what not.
, the Court distinguishes Wickard
by saying "The wheat-acreage regulation imposed by Congress, even though it lies at the outer bounds of the commerce power, was a limitation—not a mandate—and left Filburn with a choice. The Act’s economic mandate to purchase insurance, on the contrary, leaves no choice and is more far-reaching."
I'm not sure I agree with that. What choice did Filburn really have? To stop growing wheat and buy it all on the market? That seems to be what the Court is saying, which is a Faustian choice really. In essence, the Court is saying Filburn had a choice to stop farming, but in reality, what they're saying is the govt was basically forcing him to either face a penalty or to buy on the market. In other words, Filburn had to purchase wheat
, just like under the mandate, citizens have to purchase insurance
. I think these two cases are much more similar than the court gives them credit for.
More on this part later... I gotta get back to work.
Edited by Amidala777, 12 September 2011 - 08:56 AM.