Raich, Raich, Against the Dying of a Right

Julian Sanchez | June 6, 2005

With the help of international law, the Supreme Court psychically communed with the American zeitgeist and discovered some sort of latent consensus that executing juvenile criminals is "cruel and unusual." Letting people suffer because pot is baaaad, mmkay? Apparently, in light of the 6-3 decision in the Raich case today, that's cool. It's also, mystifyingly (though, given Wickard v. Filburn, not at all surprisingly) the government's prerogative under the Interstate Commerce Clause, even when the medical marijuana in question is grown and consumed within the borders of one state.

Update: The opinions are here. Thomas lays it out pretty succinctly in line one of his dissent:

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.

Of course, he could've written precisely the same thing about Wickard. NORML has a response up with links to further information.

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|6.6.05 @ 11:25AM|#

So, since the Feds can apparently regulate anything they want to via the Commerce Clause, why do we have State Government?

|6.6.05 @ 11:27AM|#

It's not all that mystifying when you consider the last 100 years of commerce clause interpretation. In the established way of thinking, "To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes" and "To stop sick people from inhaling the smoke of certain leaves" are virtually identical statements.

|6.6.05 @ 11:29AM|#

"It's not all that mystifying when you consider the last 100 years of commerce clause interpretation. "

Right. Hence the clause right after that: "though, given Wickard v. Filburn, not at all surprisingly"

|6.6.05 @ 11:30AM|#

Remind me again who was surprised by this. From Yahoo: http://tinyurl.com/bv5av

The most sickening part of the article is this gem from Justice Stevens: "Our cases have taught us that there are some unscrupulous physicians who overprescribe when it is sufficiently profitable to do so." Individual personal rights are fucking dead.

|6.6.05 @ 11:33AM|#

Thomas and Rehnquist joined O'Connor in the dissent. We might be losing two of those three this year.

This is the most unbelievable load of horseshit I've ever seen. What the fuck are they thinking? There is absolutely no way to read the Commerce Clause to permit it to regulate medical marijuana in this case. None. This makes me throw up in my mouth.

|6.6.05 @ 11:34AM|#

The Supremes took the highly principled position that the federal government may only regulate activity that involves interstate commerce, or is something they personally disapprove of.

Can anyone report on any efforts in the US Congress to respond to this?
Surely somebody there will.

R C Dean|6.6.05 @ 11:37AM|#

The Congressional response will be something along the lines of "Woohoo! The Supremes said go to it, boys! Lets see who can get the most draconian bill on the docket!"

fyodor|6.6.05 @ 11:43AM|#

It always pisses me off when judges use the kind of logic dave b quotes from Justice Stevens. Where the hell do they get the idea that they're supposed to judge a case based on whether a law is good legislation or not? That's up to the damn voters and their damn representatives! Justice O'conner gets it right (from the NY Times): O'Connor said she would have opposed California's medical marijuana law if she was a voter or a legislator. But she said the court was overreaching to endorse "making it a federal crime to grow small amounts of marijuana in one's own home for one's own medicinal use."

Also from the NY Times:

The legal question presented a dilemma for the court's conservatives, who have pushed to broaden states' rights in recent years, invalidating federal laws dealing with gun possession near schools and violence against women on the grounds the activity was too local to justify federal intrusion.

Thus, the slim thread of hope we had. Still, as others have said (including Julian), it was hardly surprising. From what I understand of the case, I'm guessing there was no way to rule in favor of medical marijuana without throwing out all federal drug enforcement, and it's hard to imagine the Court having the cajones to take on that sacred cow.

|6.6.05 @ 11:44AM|#

Scalia wrote his own concurring opinion. It'll be interesting to see how he justifies a decision that seems to go against his entire judicial philosophy. Of course, this isn't the first time he's done that.

Adam|6.6.05 @ 11:48AM|#

Ruthless, the Marijuana Policy Project is going to introduce another Hinchey-Rohrabacher bill again this year to stop the justice department from using federal funds in medical marijuana enforcement cases in the states with medical marijuana laws on the books, and it'll go down in flames again this year.

From the decision (Courtesy of Volokh):
Thus, as in Wickard, when it enacted comprehensive legislation to regulate the interstate market in a fungible commodity, Congress was acting well within its authority to "make all Laws which shall be necessary and proper" to "regulate Commerce . . . among the several States."

Any legal scholars want to explain why the law passed that brought Wickard to court was "necessary and proper"? Wasn't the whole idea that the federal government raised the price of wheat in order to help wheat farmers at the expense of everybody else? Could a brotha get some equal protection?

|6.6.05 @ 11:49AM|#

Here's the decision, along with the majority opinion, Scalia's concurrence, and dissents from O'Connor and Thomas.

Eric|6.6.05 @ 11:49AM|#

Our judicial masters have spoken. Case closed, end of debate. So people voted for this in several states? Tough.

Don't forget that many of you applaud when the Supremes override legislative acts and referendums that you don't agree with. Don't hear any applause now.

Adam|6.6.05 @ 11:49AM|#

Yeah, in flames.

|6.6.05 @ 11:51AM|#

My favorite part:

Stevens said there are other legal options for patients, "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."

*HOW*???
How many states have voted to let patients smoke? Have we even gotten one inch closer to making Marijuana a schedule II drug?

"Don't forget that many of you applaud when the Supremes override legislative acts and referendums that you don't agree with. Don't hear any applause now."

And how often do they do that compared with how often they vote to rescind your rights, shit on the Constitution, and broaden the nanny state?

|6.6.05 @ 11:52AM|#

From Thomas' dissent:

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.

Eric|6.6.05 @ 12:08PM|#

"And how often do they do that compared with how often they vote to rescind your rights, shit on the Constitution, and broaden the nanny state?"

They do that way too often, which is why I (and many conservatives) object to judicial supremacy in this country.

I'm with everyone on this. It's a crappy ruling. But other than bitching and moaning, what can be done about it? Go to Congress? Supremes can overrule that. This is where judicial supremacy has taken us. It's not pretty.

fyodor|6.6.05 @ 12:18PM|#

Eric,

You have it all ass-backwards. Nothing about this case has anything to do with Judicial supremacy. In fact, the Judiciary decided not to act! One could argue that it's about federal supremacy, but even in that respect, no one here is (to my knowledge) disputing federal supremacy on matters where the federal government has legitimate authority. What most of us (or at least me) are arguing is that federal drug enforcement is justified on an overbroad reading of the Commerce Clause. This has nothing at all to do with Judicial supremacy.

fyodor|6.6.05 @ 12:21PM|#

What most of us (or at least me) are arguing is that federal drug enforcement is justified on an overbroad reading of the Commerce Clause.

Allow me to clarify that I meant that federal drug enforcement is being justified by the court based on an overly broad reading of the Commerce Clause.

Eric, if you think that this is a bad decision, wouldn't you be supporting Judicial supremacy over the will of Congress?

|6.6.05 @ 12:29PM|#

The excerpts in Orin Kerr's post on the Volokh Conspiracy seem to admit the rough summary that "interstate commerce" is synonymous with "commerce". Unsurprising after Wickard, yes, but still painful...:-(

And I predict more pain, metaphorical and physical, from the way that as one hand of the ACLU works tirelessly to document the flagrant lawlessness of violating what anti-torture laws and treaties mean, the other hand tirelessly works for the principle that in their client, the Constitution, meaning is to be understood as -- oops! just remembered JS doesn't like half-assed references to pomoism! -- surrealism. E.g., the qualifier "well-regulated" in one clause is to be understood as modern "regulated" and to swallow the entire sentence, while the qualifier "interstate" is to be elided. But the principle does not apply to prohibitions on torture, those are entirely different! (nor the penumbra!) Ouch.

|6.6.05 @ 12:31PM|#

By 7:30am PDT I was on the phone to Representative Lois Capps's (D-CA) office urging passage of HR 2087.

I encourage you to call your congresscritter at 202-224-3121 and tell them "I'm calling about H.R. 2087, the State's Rights to Medical Marijuaua Act. I'm asking representative ___ to SUPPORT this bill."

This is especially important if your member is on the Health subcommittee, as listed here:

http://energycommerce.house.gov/108/subcommittees/Health_Members.htm

Use some of those free cell phone minutes TODAY!

|6.6.05 @ 12:36PM|#

**The excerpts in Orin Kerr's post on the Volokh Conspiracy seem to admit the rough summary that "interstate commerce" is synonymous with "commerce". Unsurprising after Wickard, yes, but still painful...:-(**

They were GIVING it away. How the hell does giving something away as approved by state law have anything to do with "commerce"...?

In retrospect, I appear to have made the incorrect assumption that the Supremens might take into account the meaning of words when crafting rulings.

Adam|6.6.05 @ 12:37PM|#

don't forget the "committee on government reform" also covers drug policy

Eric|6.6.05 @ 1:02PM|#

Fyodor,
This is about judicial supremacy because there is no recourse. If Congress passes some law that effectively overrules this, the Supremes can squash it. A future court could overrule this, but it's now a precedent, which makes it that much harder.

This is a bad decision on the merits. What makes it worse is that there is not a whole lot anyone can do to fix it. Our nine masters have spoken.

MP|6.6.05 @ 1:17PM|#

Eric,

Your logic is circular. By your logic, there is no reason to have a Supreme Court.

Not that the court isn't trying very hard with this decision to make themselves irrelevant on their own...

|6.6.05 @ 1:24PM|#

Eric, if it's not judicial supremacy, it would have to be legislative or executive supremacy. Considering that the legislative and executive powers are positive, I'd much rather the supremacy rested at the feet of the judiciary rather than the other two branches of government.

Face it, one of those branches will always have to be the last in line when it comes to bad laws, and the executive sure as hell isn't going to refuse to enforce a law to put more people in jail - that's exactly why we've come to the point where we see the judicial branch as being last in line for preserving liberty.

Being pragmatic on this front, I'm glad we have judicial supremacy because, for the most part, their impact is largely negative. If you want to complain that this is an unjust law - go petition the legislature to repeal it, or the executive to not enforce it. Instead, you lay the onus on the judiciary and call it supremacy, when they are merely refusing to be 'activist' and overturn pre-existig laws.

Looks to me like all that 'activist' bullying is paying off. I'm guessing that the government we deserve is already pretty firmly in place.

|6.6.05 @ 1:25PM|#

No real suprises here. Hell the entirety of the BATF lives in your backyard for the express purpose of imprisoning people who can't figure out their booze taxes. You can go and buy wine and brandy and drink them but just buy the wine and distill it into brandy and you have gone too far. Feel free to insert beer and whiskey as your taste desires.

Alas, I'll never be able to distill fermented tobacco for that alcohol burning machine gun that I've dreamed of making since I was a kid.

|6.6.05 @ 1:27PM|#

As a minor sidepoint, The Respondent's brief in Raich actually contains a very nuanced reading of Wickard .

Anon

tomWright|6.6.05 @ 1:31PM|#

So why do so many (L|l)ibertarians like Scalia? Because he CLAIMS to be an originalist? He is nothing but a lying, biased, sophist seeking ways to justify his prejudices in the Constitution, just like every other statist pig that's been on the court since the cowards in FDR's time cringed at the threat of court packing.
I wonder if we embossed the Bill of Rights, with pre-able, onto a 2x4 and slammed it into his forehead, he might start to understand it? Nah.

MP|6.6.05 @ 1:40PM|#

tom, I didn't used to put much creedence in your point of view regardig Scalia. But now...

fyodor|6.6.05 @ 1:40PM|#

Eric,

If Congress passes some law that effectively overrules this, the Supremes can squash it.

Uh, yeah...but you can say that about anything the Supreme Court decides! If you're against all judicial review, well fine. I disagree but that's a discussion for another day. My point is that it's a discusion for another day! No one here (that I can tell) has said that the Supreme Court's decision is wrong because all Supreme Court decisions are supreme. Thus, no one here is guilty of the charge of hypocrisy that you leveled at all and sundry.

R C Dean|6.6.05 @ 1:42PM|#

I wonder if we embossed the Bill of Rights, with pre-able, onto a 2x4 and slammed it into his forehead, he might start to understand it? Nah.

Careful, Tom. Some of the delicate flowers in the commentariat here (yeah, I'm looking at you, joe, and you, gaius) get the vapors at seeing such indelicate language in the comment section of libertarian blogs.

fyodor|6.6.05 @ 1:52PM|#

RC Dean and Tom,

I don't mean to join the likes of joe and gaius in taking such comments out of their figurative context, but I gotta admit, using violent imagery hardly helps anything.

fyodor|6.6.05 @ 2:01PM|#

BTW Eric,

Your position seems to be that this decision is wrong because if Congress were to reverse itself, the Supreme Court could then overrule Congress's new legislation? Incredible. To call that a stretch would be an understatement of severe magnitude.

No Eric, what actually did happen (as opposed to your irrelevant future hypothetical) is that the Court decided not to overturn a federal law, pure and simple. To call that an instance of judicial overreaching makes no sense. That judicial supremacy could have an effect on the issue in the future has no bearing on this particular decision!

Jeez, why do I bother?

fyodor|6.6.05 @ 2:15PM|#

Eric,

Look at it this way, if judicial review (which is what makes the judiciary supreme) were not recognized by the Supreme Court, it would have simply dismissed this case without even hearing it! The result would have been exactly the same!

OTOH, if the other branches of government simply did not recognize the judiciary's supremacy, then nothing the Court decides matters anyway! Personally, I think we're damn lucky to have a system in which a Court can tell the other branches of government they've gone too far -- and those other branches actually listen! It's too bad the Court didn't do that in this case.

|6.6.05 @ 2:24PM|#

Fuck Scalia. I have heard the guy speak, and if you didn't know better you could actually convince yourself that he has integrity and a judicial philosophy that he sticks with. I never thought I would see the day that I praised Thomas, but here it is. He and the other two at least have the guts to follow the Constitution even when it leads somewhere they don't personally approve of. Goddam.

|6.6.05 @ 2:30PM|#

"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." Scalia

Funny, I didn't remember the part of the Constitution where Congress is given the right to regulate commerce an "instant" away from interstate market. Originalist my ass.

|6.6.05 @ 3:13PM|#

To fyodor and others who seem to see no principle here...

I think it's meaningful to support the idea that judges' power to declare things unconstitutional should be limited to the tricky, ambiguous, and/or unanticipated cases. Within that slop, I'd strongly prefer that they go for libertarian options, but I prefer even more strongly that outside that slop, where the law is clear, they not make a mockery of the rule of law. Frex, I oppose alcohol prohibition, but once it was written into the Constitution, I'd've been angry at a judge who tried to claim that the Feds (still) didn't have the constitutional power to do it. I also oppose a government monopoly on mail, but it doesn't seem particularly unreasonable to read the Constitution as authorizing it.

What we're upset with is interpretations so goofy that they would never occur to people reading the literal text of the law unless they supported the political faction to which the interpreter belongs, and didn't give a damn about the law. Torture isn't torture unless it causes organ failure; separate is equal; commerce is interstate commerce; commercial or political speech is not speech...

I think written, unambiguous law is a great thing; lots of serious people agree, and most people at least give lip service to the idea. But once people -- judges or anyone else, including the legislators voting for stuff like this, or executive types ostensibly enforcing law -- are allowed to interpret written commitments so perversely, it's not clear what's left of the idea of rule of law. Of course, we still have the standard 5000BC fallback political technology of rule by man, but I don't consider that to be an entirely satisfactory replacement.:-(

|6.6.05 @ 3:19PM|#

So, Eric, let me ask you this:

Say that Congress repealed the drug laws. (Yeah, I know, I'm dreaming.) Do you think the Supremes would order them to reinstate the drug laws?

If not, then this is not judicial activism. This is just a matter of deferring to Congress.

|6.6.05 @ 3:29PM|#

It took about 150 years, starting with a Bill of Rights that reserved to the states and the people all powers not explicitly delegated to the federal government, to produce a Supreme Court willing to rule that growing corn to feed to your own hogs is interstate commerce and can therefore be regulated by Congress. ... As Murray Rothbard is supposed to have said, the idea of a limited government that stays limited is truly utopian. Anarchy at least might work; limited government has been tried.

David Friedman, The Machinery of Freedom

tomWright|6.6.05 @ 3:38PM|#

MP, Fyodur, RCDean,

Surprised at Scalia? Delicate Flowers in an LP blog? "using violent imagery hardly helps anything"?

Hoo boy, Youda thunk I said something horrible, like "War Freed the Slaves", or, "Guns save lives" or "First thing we do, is kill all the lawyers", or something.

Heck, it was pretty clearly a rhetorical use of imagery, to me anyway. Sort of like saying you need a 2x4 to get the attention of a mule.

But, after attending a few LP natCons, various LP stateCons, and reading L.P. sites since pre-internet BBS days, reading all sorts of Libt. Lit. for the past 3 decades giv'r'take, I am hardly surprised.

None of the justices are perfectly consistent with the big C., but Scalia is arguably the most over-rated of the bunch as far as consistency goes. He would rule in favor of state supported churches, warrant-less searches and state control of the press in a heartbeat if he could find a way.

I have more respect for O'Connor and Thomas than for Scalia, but that isn't saying much.

Tom

gaius marius|6.6.05 @ 3:41PM|#

that's exactly why we've come to the point where we see the judicial branch as being last in line for preserving liberty.

well said, mr metalgrid.

delicate flowers

just trying to cling to that last shred of civility, mr dean. :)

on scalia -- i think the basis of scalia's involvement in constitutional originalism (or even originalism itself) has to be seen from a certain point of view to be understood properly (and, btw, entirely consistently in this case). i've written at length about it, but the synopsis is this:

scalia's desire is not originalist per se, but majoritarian. his affiliation with originalism -- which is a fundamentally ahistorical movement, despite its name and intent to misappropriate history as a basis for nakedly ideological action -- is only to the extent of reducing the power of the court to uphold law and tradition that interferes with plebiscitarianism.

he sees the court as elitist and insensitive -- as it was indeed designed to be -- to the will of the people, something he claims as being expressed in the congress and the president. what he can do to reduce its influence in the balance of powers, it seems he does.

it's critical, i think, to understand mr fyodor's point about this decision being a refusal to act to abrogate the will of the federal government. scalia's intention is not to expand the power of the court but to destroy it.

there's obviously little about that which is either conservative or original to the founders. but it is perfectly consistent with the tenets of neoconservatism, which is based in rousseauian/jacobin ideology of lawless antitraditional populism -- the mass politics so well used by the fascists and others in history to upset lawful governments with people power. i think it goes without saying that the ideologues who support such notions of "government" see themselves as the primary arbiters of the "will of the people".

gaius marius|6.6.05 @ 3:46PM|#

But once people -- judges or anyone else, including the legislators voting for stuff like this, or executive types ostensibly enforcing law -- are allowed to interpret written commitments so perversely, it's not clear what's left of the idea of rule of law.

exactly, mr newman. we are witnessing in these decisions by the court not to limit the authority of congress is the devolvement of the rule of law into government by popular fiat -- which, of course, is but a quick slip to tyranny.

fyodor|6.6.05 @ 3:50PM|#

Bill Newman,

To fyodor and others who seem to see no principle here...

Huh? True, I do not see the issue of "judicial activism" (as best as I can understand the term) as applying here. OTOH, the principle of enumerated powers very much applies.

I think it's meaningful to support the idea that judges' power to declare things unconstitutional should be limited to the tricky, ambiguous, and/or unanticipated cases.

Are you saying that judges should not declare laws unconstitutional when they clearly so? Did you mean that judicial review should be limited to cases that are not "tricky, ambiguous, and/or unanticipated cases"? If not, I sure don't understand you.

|6.6.05 @ 3:59PM|#

Actually Thomas has written against Wickard. See his
Lopez concurrence.

|6.6.05 @ 5:03PM|#

gaius,

I'm not so sure Scalia's philosophy is as simple as you posit, since he did vote against the govt in the Hamdi enemy combatant case.

Of course, his position in this case is shameful, but I chalk it up more to personal blindness on this issue than to a consistent philosophy of majoritarianism.

Jason|6.6.05 @ 5:06PM|#

This is about judicial supremacy because there is no recourse. If Congress passes some law that effectively overrules this, the Supremes can squash it. A future court could overrule this, but it's now a precedent, which makes it that much harder.

Isn't that just a case where Congress can exercise it's constitutional power of limiting the jurisdiction of the SCOTUS? I'm not sure I'd dub this case judicial supremacy either, given that they're not "legislating from the bench", but rather upholding an existing federal law. One review I read said that it would have been easy for the SCOTUS to overturn this particular application of a particular federal law while leaving the rest standing (though Wickard IMO is a pretty lousy basis for which to say that something is constitutional or not).

|6.6.05 @ 6:39PM|#

Just wondering how a refusal to act can be called "activism."

Robert Goodman|6.7.05 @ 2:51PM|#

Rulings such as the majority's in this case are prime examples of what I call "dragging the pivot foot". Take a legitimate justification and stand on it, and you can pivot by moving the other foot as with a basketball. But then where that other foot lands, take that as a new basis, and drag the pivot foot to elsewhere, and soon you're just plain walking with the ball.

Congress gets the power to regulate commerce among the several states and with the Indian tribes, and then uses that power to try to reduce use of certain substances. But then that objective becomes the new basis, and the court decides that the interstate commerce linkage is an impediment to it, so that foot can be moved, forgetting that that was the original justification.

Also, establish a class or category of activity or article and legislate according to some characteristic of some member of that class, and then you can step outside that circle as long as one foot remains inside.

There's an enormous amount of "walking" the majority allowed for here, just by alternately deciding one foot, and then the other, was a basis.

Ya know, if Wickard's a basis here, then the majority implies that the purpose of the CSA is to enrich interstate drug dealers at the expense of home growers.

Robert

Acksiom|6.7.05 @ 7:58PM|#

Exactly, RG.

The civic objection here is not to the expansion of judicial power; it is not even really to the failure of the judiciary to properly check the expansion of legislative power.

The civic objection here is to how this decision in fact actively expands the power of the federal legislature.

Since preventing such is one of the most fundamental responsibilities of the SCOTUS. . .

. . .or, well, it's supposed to be, at least.

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