If You Demand a Good, Progressive Commerce Clause, You Also Get a Bad, Reactionary Commerce Clause

I recently finished reading Smoke Signals, a new "social history of marijuana" by Martin A. Lee. By and large, it is what you would expect from the co-author of the fine LSD history Acid Dreams: engaging and full of interesting details, even for people familiar with the subject. But some of Lee's legal analysis is a bit shaky. I was particularly struck by this passage on Gonzales v. Raich, the 2005 case in which the Supreme Court ruled that the federal government's power to regulate interstate commerce extends even to homegrown marijuana used by patients in states that recognize the plant as a medicine:

[Angel] Raich's attorneys framed the case in terms of states' rights and tailored their arguments to appeal to conservatives. Her legal team (which included her husband, Robert Raich) made a strategic decision to emphasize the Commerce Clause rather than other crucial issues such as medical necessity or the right to life. Federal drug laws are rooted in the Commerce Clause, which empowers Congress to regulate interstate commerce. This provision once served as an important tool for promoting progressive federal policies from the New Deal to Civil Rights, but over the years it became an all-purpose excuse for Congress to meddle in virtually every aspect of human behavior. 

As much as Lee might wish otherwise, he is not describing two different legal trends. The Commerce Clause "became an all-purpose excuse for Congress to meddle in virtually every aspect of human behavior" because it "served as an important tool for promoting progressive federal policies from the New Deal to Civil Rights." If the Commerce Clause authorizes the federal government to punish a farmer for growing too much wheat, even when the extra grain never leaves his farm (as the Supreme Court held in the New Deal case Wickard v. Filburn), it is hard to see why it does not authorize the federal government to punish patients for growing and possessing marijuana, even when the drug never leaves the state. If, as the Civil Rights Act of 1964 asserted, Congress can regulate any restaurant, cafeteria, lunchroom, lunch counter, or soda fountain when "its operations affect commerce" (e.g., when an Alabama diner uses Idaho potatoes to make French fries), surely the feds can shut down medical marijuana dispensaries, even when their activities are purely local and authorized by state law.

Likewise, if the U.S. Justice Department can prosecute hate crimes based on the defendant's use of a weapon made in another state, almost any offense, including some that progressives might prefer not be treated as crimes at all (assisting suicide, say), can become a federal case. Defending the Patient Protection and Affordable Care Act, the Obama administration argued (unsuccessfully) that Congress may force people to buy government-approved medical coverage because their failure to do so, taken in the aggregate, has a substantial effect on the national health care market. That theory sounds very much like "an all-purpose excuse for Congress to meddle in virtually every aspect of human behavior." 

The point is that a federal government big and powerful enough to achieve progressive goals is also big and powerful enough to undermine them. If you endorse an absurdly broad reading of congressional power to justify policies you like, you should not be surprised when that same rationale is used to justify policies you hate. Conversely, as I argued in the July issue of Reason, respecting constitutional limits on federal power may mean giving up on achieving certain progressive goals at the national level, but it opens up a wide space for achieving them at the state and local level. 

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  • ||

    Conversely, as I argued in the July issue of Reason, respecting constitutional limits on federal power may mean giving up on achieving certain progressive goals at the national level, but it opens up a wide space for achieving them at the state and local level.

    It's just not worth it if you can't force everyone in the country to do the same thing.

  • ||

    Or, more succinctly: Me today, you tomorrow.

  • R C Dean||

    Dammit!

    I mean, well played, Warty, well played.

  • ||

    It's always refreshing to see that he's been taking notes during class.

  • ||

    Tomorrow. You.

  • ||

    Warty is Fist Banana.

  • Paul.||

    Why does it feel like Always Me?

  • R C Dean||

    Because tomorrow never comes?

  • flye||

    Nice. I seem to remember this argument back when Clinton was vastly expanding executive powers, and again when Bush topped him, and again when Obama topped him...

  • Pro Libertate||

    Limited government is limited for a reason. Because government is extraordinarily dangerous and has a very long history of committing horrors that most individuals couldn't even imagine doing.

  • ||

    Yet you still want to have one, and then you think you can somehow limit it, though that has never worked, ever.

    What is the definition of insanity, ProL?

  • ||

    You?

  • ||

    BESIDES THAT.

  • Almanian's Evil Twin||

    Your mom?

  • ||

    No, you idiot. We mean just plain insane, not insanely fat and slutty.

  • ||

    Did you just call me fat?!?

  • R C Dean||

    though that has never worked, ever.

    Well, as far as the fed's authority over the economy went, it worked pretty well for 150 years.

  • ||

    And then...? Do you get my point?

  • Pro Libertate||

    If it's inevitable when a minarchy is established, why not when an anarchy is established?

    I think the flaw in our original system is that it didn't have enough checks on power and wasn't firmer about individual liberties being paramount.

    That said, I think human institutions are always flawed and limited by human limits. The Constitution could've remained in full force if a sufficient number of citizens had objected to its constant dilution.

  • ||

    And here you are: it didn't work, let's just do it harder. "If"..."I think the flaw is"...

  • Pro Libertate||

    I'll patiently await your crypto-anarchist republic/syndicate to see how it does.

  • ||

    I'll patiently await your minarchy at the same time, and we can both sit back and do nothing for a few hundred years.

  • Pro Libertate||

    I'd say the U.S. was a minarchy of sorts, certainly comparatively speaking, for almost a century. It's at least an example.

  • ||

    Sure.

    Whatever you say.

    I can only post two links.

  • Pro Libertate||

    Never said it was perfect, and never said minarchy didn't involve government, you fat, jungle-dwelling. . .wait, sorry, I was thinking of Warty.

  • Killazontherun||

    The problem I have with minarchist is they don't hate government enough to be willing to give up the extremely few privileges it provides.

  • Pro Libertate||

    I'm not the only minarchist, you know. There is another.

  • Killazontherun||

    So long as you stay that way, you will never be able to hate the way I hate. It is pure and unsullied and as beautiful as hellfire.

  • Pro Libertate||

    I'm too busy for that sort of thing. You can have my hate proxy.

  • R C Dean||

    And then...? Do you get my point?

    Oh, sure. I just don't want to forget the historical perspective, that our experiment with a Constitutional republic of limited enumerated powers had a pretty good run, outlasting most democracies and other governments. Offhand, the only form of government that has lasted longer is a few of your hereditary monarchies.

  • The Immaculate Trouser||

    Any institution and institutional change made by a human has a "sell by" date. It's best to keep that in mind, rather than holding all attempts to correct institutions as flawed simply because they will fail to exist in their idealized form after X number of years.

    The number of businesses that have successfully maintained the form they had at their inception after 200 years (or that even exist after that point) are quite small, but I don't think anyone on this board would say that establishing a business is a futile endeavor.

  • tarran||

    It did?

    Because 1870 - 1796 does not equal 150.

  • R C Dean||

    I was referending the Commerce Clause as a limited, enumerated power, and dating its demise to 1942.

  • tarran||

    Ah... fair enough.

  • ||

    The biggest mistake in the Constitution was replacing "property" with "pursuit of happiness".

  • Tommy_Grand||

    Dec. of Independence?

  • ||

    The biggest mistake in my comment was replacing "Declaration of Independence" with "Constitution".

  • Pro Libertate||

    What I want isn't the issue. Go ahead and start your autonomous anarchist collective. When you take it over and become its absolute overlord, almost entirely indistinguishable from Colonel Kurtz, then we can talk.

  • ||

    I don't think you'll like that conversation, Captain Willard.

  • Pro Libertate||

    I just re-watched Apocalypse Now, and I'm pretty sure Willard is the guy with the machete, and Kurtz is the guy getting macheted.

  • Whiterun Guard||

    Yep. He struck him down, and he became more powerful than he could ever imagine.

  • ||

    I make up my own story as I go along, ProL, especially if I am overlord. Trust me, you wouldn't like our conversation.

    "No, I expect you to die, Mr. Libertate."

  • Pro Libertate||

    That didn't work out for Goldfinger, either.

    Here, let us sing:

    Goldfinger.
    He's the man, the man with the Midas touch,
    A spider's touch.
    Such a cold finger,
    Beckons you to enter his web of sin,
    But don't go in.

    Golden words he will pour in your ear,
    But his lies can't disguise what you fear.
    For a golden girl knows when he's kissed her.
    It's the kiss of death. . . .

    From Mister Goldfinger.
    Pretty girl, beware of his heart of gold.
    This heart is cold.

    Golden words he will pour in your ear,
    But his lies can't disguise what you fear.
    For a golden girl knows when he's kissed her.
    It's the kiss of death. . . .

    From Mister Goldfinger.
    Pretty girl, beware of his heart of gold,
    This heart is cold.
    He loves only gold.
    Only gold.
    He loves gold.
    He loves only gold.
    Only gold.
    He loves gold.

  • T||

    If your uncollective will include anyone who looks like Honor Blackman, I'd like to subscribe to your newsletter.

  • ||

    My anarcho-syndicalist commune is open to all Bond girls, porn stars, anyone who has been in the show Firefly, and Alison Brie. Fuck it, Gillian Jacobs too.

  • Coeus||

    anyone who has been in the show Firefly,

    I'd rethink that if I were you. Ironsides would kick your ass and take over in a heartbeat.

  • Pro Libertate||

    Well, that might help you get a good start. Look what that sort of thing has done for Scientology.

  • ||

    That's my plan, ProL.

  • Pro Libertate||

    Well, it's an excellent one. Give anarchy a chance.

  • ||

    Your methods have become...unsound.

  • Pro Libertate||

    I don't see any method acting. . .at all.

    Apropos of nothing, I just watched Point Blank, the John Boorman movie. Not bad.

  • ||

    Just go watch Zardoz again to properly appreciate Boorman.

  • Pro Libertate||

    Want to understand Boorman? I mean really understand him? Then know this: When he cast a woman to be stripped naked and have sex with a guy in armor on screen, he cast. . .his daughter.

  • ||

    I said "appreciate". I most specifically did not say "understand". There is a big fucking difference.

  • Pro Libertate||

    Me, my daughter is not getting on screen at all, let alone naked with some armored buffoon.

  • Almanian's Evil Twin||

    Hey, if it gets her employed enough to get her out of the house and off your dime....

    Just sayin.

  • T||

    Two words for you, ProL: cosplay and sexting.

  • Coeus||

    my daughter is not getting on screen at all, let alone naked with some armored buffoon.

    What if it was just football pads, and it went straight to VHS?

  • Brett L||

    VHS? How are you posting this from the 20th century?

  • Coeus||

    VHS? How are you posting this from the 20th century?

    Magnets

  • SugarFree||

    PL, he also filmed nude scenes by his son in The Emerald Forest.

  • Pro Libertate||

    Dear Lord. What's with this guy? I guess, at least, he didn't have them in the same film doing such things.

    I firmly believe that Herzog had such plans for Klaus and Nastassja Kinski.

  • Restoras||

    God bless him for that scene.

  • Restoras||

    The scene in Excalibur...damn these threaded comments...

  • SugarFree||

    The scene in Excalibur...damn these threaded comments...

    Uh-huh.

  • Killazontherun||

    Sure, cast his daughter but by all means keep those robes tightly fastened. What was he suppose to do, let a first rate rack go to waste?

  • 0x90||

    No structure, or lack thereof, will ever work, because the structure is effect, not cause. Give me one change only: that each person was only willing to obey laws which squared with his conscience. Play that scenario out and see what you come up with.

  • Whiterun Guard||

    You know who else was big and powerful enough to achieve progressive goals and was also big and powerful enough to undermine them...

  • Almanian's Evil Twin||

    FDR?

  • Loki||

    General Zod?

  • Virginian||

    It's something I've taken to crowing about whenever a leftist friend or acquaintance runs afoul of the State. This is what you want, this is what you vote for. You want a big government to keep us safe and help us make the right choices. That's what it's doing.

    Same thing goes for law and order types. You got a ticket at a checkpoint? But I thought you liked checkpoints, it keeps the drunk drivers off the road. Complaining about showing ID to buy Sudafed? Well I thought the War on Drugs was so important, surely it's not too bad of a sacrifice?

  • benji||

    They tell me it's because of the wreckers. And that also the politicians can't do the right things because they'll get criticized so this is all they can do for us.

  • Brandybuck||

    Too many progressives just don't understand this. They're whole thesis is that it's okay to give the government as much power as possible as there will always be progressives in charge of the government. They don't understand that people like Nixon, Ford, Reagan, Bush, and Bush can get elected. They don't understand that all the power they've given to Obama will be wielded by Romney. It is simply unthinkable to them that presidents they abhor will have the same power as the presidents they love.

    This of course sounds totally illogical to us libertarians, but we are the outliers. Logic and rationality do not drive the politics of progressives (or conservatives), emotions are all that matter.

  • ||

    Even when the outcome is something they purportedly should support, "progressives" knee-jerkedly advocate for government authority. For example when I told my liberal wannabe elitist brother about the pot plant NH jury nullification, his reaction was hysteria: "Great, so now murderers are going to get off!"

  • Doctor Whom||

    I've tried to explain the same thing to progressives, and when they've even bothered to go beyond that all-purpose scathing rebuttal known as "La la la, I can't hear you," they've just appealed to ridicule. As for what sounds totally illogical, a PC liberal recently criticized me on my blog, not for using unsound logic, but for using the dreaded "book logic" at all.

  • R C Dean||

    Defending the Patient Protection and Affordable Care Act, the Obama administration argued (unsuccessfully) that Congress may force people to buy government-approved medical coverage because their failure to do so, taken in the aggregate, has a substantial effect on the national health care market.

    Viewed in very narrow legal terms, the Commerce Clause arguments of both sides were irrelevant. Trust me on this one; I have flyspecked the opinion because I am giving CLE sessions on it. The opinion of the Court was that the penalties are authorized by the Taxing Clause, no Justice joined Robert's musings on the Commerce Clause, or his thoughts that the Commerce Clause musings were necessary in order to get to the Taxing Clause issue.

    The Court did not (technically!) rule on the Commerce Clause at all, and so the arguments of both sides were neither successful nor unsuccessful, merely . . . irrelevant to the Court's restatement of the law's penalties as taxes. Think of it this way: if the Court had never mentioned the Commerce Clause at all, the result would have been the same.

  • John||

    Seems to me the whole case was a big plurality. Did the four liberals talk about the taxing clause? I thought Roberts was the only one who thought it was a tax. Didn't the four liberals say it was a straight up proper use of the commerce clause?

    And if the other four conservatives did not join Roberts' musings on the commerce clause, how did they justify voting to strike the law down?

  • Eduard van Haalen||

    The Volokh Conspiracy has some interesting debates over this.

  • R C Dean||

    I've been through the opinion and tallied the votes.

    No Justice joined Roberts' opinion on the Commerce Clause, or his opinion that you couldn't get to the Taxing Clause without ruling on the Commerce Clause first. Those are pure dicta.

    He got 4 other votes for his opinion on the Taxing Clause allowing the individual mandate. I think there were 7 votes for his opinion on allowing States to opt out of Medicaid expansion, but I could be wrong on that; I didn't really focus on it.

    That's it. It basically breaks down as a 5-4 decision on the Taxing Clause, a 7(?)-2 opinion on Medicaid expansion, and a whole lotta one-Justice dicta on the Commerce Clause.

    I honestly don't see what there is to debate. Its pretty clear what the votes were. Dissents are never binding precedent, and neither is dicta that not one other Justice joins.

    The state of Commerce Clause precedent is completely unchanged by this case.

  • John||

    At this point yes. All there is is wishful thinking that Roberts some day will find a use of government power he doesn't think is a tax.

  • Enjoy Every Sandwich||

    If You Demand a Good, Progressive Commerce Clause, You Also Get a Bad, Reactionary Commerce Clause

    But you're arguing principles here. Which progressive folk insist do not exist, except when they want them to.

    (heh-it's so funny when they pretend to be different from religious fundamentalists)

  • Doctor Whom||

    (heh-it's so funny when they pretend to be different from religious fundamentalists)

    QFT.

  • Almanian's Evil Twin||

    Nice to see Mrs. Skeletor is able to get some of teh medicul MaryJane for her condition.

  • Paul.||

    Her legal team (which included her husband, Robert Raich) made a strategic decision to emphasize the Commerce Clause rather than other crucial issues such as medical necessity or the right to life.

    Lee is probably on to something. It's a frustrating analysis from a libertarian standpoint, but probably a better one when held up against political reality.

    Everything in the country is now looked at through the lens of public health. Healthcare is a right. Feeling good is a right. Sound mental health is a right. Everything is banned... unless it's medicine, then it's ok if you leave your fingerprints and your name goes on a list.

  • Archduke Pantsfan||

    That's not her neck, right, it's a scarf she's wearing?

  • Paul.||

    Her? Oh shit.

  • The Late P Brooks||

    when I told my liberal wannabe elitist brother about the pot plant NH jury nullification, his reaction was hysteria: "Great, so now murderers are going to get off!"

    Ow, my head.

  • YinxDoo||

    lol what you get is what the highest bidder pays to the lawmakers.

    www.PrivacyGet.tk

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