Today in Supreme Court History

Today in Supreme Court History: November 29, 2004

|The Volokh Conspiracy |

11/29/2004: Randy Barnett argues Gonzales v. Raich.

Randy Barnett argues Gonzales v. Raich

 

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  1. This decision becomes even more correct as we continue growing the Internet-world and e-commerce (both intra- and international).

    The Internet makes it’s so easy for small scale businesses to sell goods and services on the national and global level.

    1. Ummm, nobody including Raich was selling anything to anyone, she was growing it for her own use.

      1. Ummm, no kidding (I read the decision too).

        My point is, going forward, the decision becomes even more relevant in our increasing e-World.

        1. Right so the decision isnt relevant to small-scale e-commerce business wide reach because Raich was not a business. Im not sure why your point was relevant other than FYTW commerce clause imposes no limits whatsoever :p

  2. The genuine motivation for a seemingly inexplicable parade of ancient birth, death, and lesser announcements becomes apparent . . .

  3. Scalia most effectively addressed Barnett’s argument in his concurrence:

    Congress’s authority to enact laws necessary and proper for the regulation of interstate commerce is not limited to laws directed against economic activities that have a substantial effect on interstate commerce. […] it could be regulated as an essential part of a larger regulation of economic activity, in which the regulatory scheme could be undercut unless the intrastate activity were regulated. […] That simple possession is a noneconomic activity is immaterial to whether it can be prohibited as a necessary part of a larger regulation.

    1. What i am understanding this as is: Regulatting econ activities with a substantial effect on IC will inevitably require regulating some non-economic activities (like Raich’s) on the margins, and carving out exceptions would threaten to swallow the rule and make Congress’ task insuperable

      1. I understand Scalia to mean that regulations of noneconomic activities can be justified independent of whether there is a substantial effect on interstate commerce.

        1. I dont see that there. And that reasoning leads to the conclusion that the commerce clause imposes no limit on congressional action whatsoever

          1. As Scalia also wrote in his Raich concurrence:

            the authority to enact laws necessary and proper for the regulation of interstate commerce is not limited to laws governing intrastate activities that substantially affect interstate commerce. Where necessary to make a regulation of interstate commerce effective, Congress may regulate even those intrastate activities that do not themselves substantially affect interstate commerce

            That strikes me as defining an authority independent of substantially affecting interstate commerce.

            If you look at my comment below, it appears Scalia used to think such an independent authority imposed a limit on Congressional power, but changed his mind in the Obamacare, individual mandate case.

            I found Scalia’s Raich opinion persuasive because Congress cannot pass just any regulation. To the contrary, a regulation must be “necessary” to avoid undercutting a regulation of interstate commerce. That is, Congress cannot prohibit the possession of marijuana in one’s home if it hadn’t prohibited the interstate sales of marijuana. Likewise, Congress cannot require people to carry health insurance if it hadn’t required insurance companies to abide by guaranteed issue and community ratings.

            Those predicate regulations of interstate commerce strike me as a limitation on Congressional power.

    2. On the other hand, Scalia did not faithfully apply his own principle in Raich:

      the power to enact laws enabling effective regulation of interstate commerce can only be exercised in conjunction with congressional regulation of an interstate market […] where the failure to do so could … undercut its regulation of interstate commerce. This is not a power that threatens to obliterate the line between what is truly national and what is truly local.

      to NFIB:

      If we were to accept the Government’s arguments, we are hard pressed to posit any activity by an individual that Congress is without power to regulate.

      Scalia went from believing that regulating activity that could undercut a regulation of interstate commerce is a limiting principle on Congressional power, to believing it is instead an invitation to unlimited Congressional power.

      1. The cynical among us would suggest that Scalia didn’t “switch” anything, that it was a raw matter of whether he approved of the regulation in question. But that would be cynical.

        1. But that would be cynical.

          Not to mention sensible.

    3. The problem is, that isn’t true.

      I can think of things where regulating possession is integral to the scheme (guns, child porn), but those are manufactured goods with very substantial connections to interstate commerce anyway.

      Growing your own marijuana poses ZERO threat to any regulatory regime.

  4. I just noticed the illustration correctly shows Rehnquist missing. He was fighting the cancer that would claim his life, although he did participate in this case.

    1. Was he using weed to help with the nausea? I hope for his sake, and the sake of weed fueled irony everywhere, that he was.

  5. We need more Democrats on the court, so we don’t get travesties like this. Democrats will defend marijuana!

    “The ruling was 6–3 with Justice Stevens writing the opinion of the court, joined by Justices Kennedy, Ginsburg, Souter and Breyer”

    Wtf.

    Hmmmmm. Must be they more highly value unrestricted domain expansion of the commerce clause.

    Well, if there are any important emminent domain seizures, I’m sure they’ll come through for The People!

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