Today in Supreme Court History: November 29, 2004

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

Randy Barnett argues Gonzales v. Raich

 

Comments

[Dan Schiavetta]

Commissioner v. Kowalski, 434 U.S. 77 (decided November 29, 1977): cash meal allowances to New Jersey police officers are taxable income

Lincoln Property Co. v. Roche, 546 U.S. 81 (decided November 29, 2005): defendant can remove to federal court without having to exclude possibility of non-diverse interested parties (tenants sued out-of-state landlord for mold injuries; did not find any in-state partners of defendants during jurisdictional discovery but Court notes they didn't try very hard) (I was recently involved in a removed case where the judge made us track down every partner of one defendant and lo and behold, one of the silent partners was in-state; remanded!)

Texas v. Lesage, 528 U.S. 18 (decided November 29, 1999): white applicant to state university can't argue that affirmative action was Equal Protection violation when he would have been denied entrance even under race-neutral regime

[David Nieporent]

(I was recently involved in a removed case where the judge made us track down every partner of one defendant and lo and behold, one of the silent partners was in-state; remanded!)

That's a different scenario. If the defendant is a partnership and one of the actual partners is non-diverse, then the partnership itself is non-diverse; that defeats subject matter jurisdiction and the court can't hear the case.

In the SCOTUS case, there was no party that was non-diverse. Rather, the 4th circuit held that there hypothetically could've been some other party who wasn't joined but who could've been (or maybe even should've been) that could've defeated diversity. And SCOTUS said, no, it doesn't work that way. The parties are the parties.

[Dan Schiavetta]

True.

It just illustrates the folly and expense of jurisdictional discovery in federal court — folly because Congress could easily amend the statute to require only “minimal” diversity, or something less severe than scrupulously complete diversity.

[defaultdotxbe]

I read about a case on here last week about an LLC, where they found a single partner in the holding company that owned the holding company that owned the LLC that was non-diverse.

[David Nieporent]

Yep. That's the current rule.

[David Nieporent]

Congress could easily amend the statute to require only “minimal” diversity, or something less severe than scrupulously complete diversity.

Indeed, they did in the Class Action Fairness Act, codified at 18 USC 1332(d)(2). It requires only minimal diversity for that to kick in.

Or, they could pass a law declaring that for diversity, the citizenship of partnerships and LLCs works the same as for corporations — state of incorporation and principal place of business — rather than inquiring about the citizenship of each partner/member.

[Dan Schiavetta]

Another exception involves interpleader (which I've brought in federal court). Only one of the claimant "defendants" has to be from a different state than the "plaintiff" insurer. Like with class actions, otherwise due to the number of parties complete diversity would never be possible.

[Syd Henderson]

Which side was he arguing?

[defaultdotxbe]

Raich, she was growing marijuana for personal use, not for sale and exchange, or barter.

[Tallman]

...which was an obviously untenable legal position given the case was about "medical" marijuana i.e., pharmaceuticals prescribed by doctors. The potheads really need to pick better test cases.

[ReaderY]

Why did the fact that her personal use was medical in nature make her case weaker than if it had been recreational? The federal government has less power to regulate the practice of medicine as such than to regulate recreation.

[Tallman]

Because Rx drugs are articles of commerce, fungible ones at that.
Randy's argument barely passes the laugh test.

The potheads should have found some granny who was growing hemp to stabilize a hillside or b/c she liked the look of the folliage. If necessary, get some friendy cops to 'prosecute' that granny (ala what the plantiffs did in Lawrence v. Texas)

[defaultdotxbe]

Which might be a valid observation if the case was about a doctor's right to prescribe marijuana to patients, but it was about Raich's growing of marijuana for personal use. The economic argument would still stand absent any medical marijuana statute in the state.

[John F. Carr]

Barrett argued for Raich, according to Wikipedia. And in a rare example of consistency, he was backed by conservative state attorneys general whose support for states' rights exceeded their dislike of marijuana.

[ReaderY]

I said when Raich came out that a logical consequence of Raich is that the federal government can regulate marriage. Every act of marital sex takes money away from the hands of interstate commercial prostitutes, thereby interfering with interstate commerce in sex. Since sex could just as easily be handled through commerce as through non-commercial interactions, doing it non-commercially is simply an intrenched traditional habit and nothing more, Congress could for example simply prohibit marriage and require people to frequent prostitutes to satisfy their needs.

The essential holding of Raich, what distinguished it from Wickard, is the idea that it is the way a thing or activity POTENTIALLY COULD BE USED, not the way it actually was used in the specific context, that determines whether it is subject to the Commerce Clause or not. And of course sex potentially can be used as an item of commerce. And long has been. It’s the oldest profession there is.

Under Raich, Congress is every bit as free to declare interstate commercial sex a valuable national economic asset and protect the professionals by prohibiting spouses and other non-professionals from damaging the economy and lowering GDP by intruding on the professionals’ turf, as it is to continue its current course and prohibit it. Whether something is regarded as noxious to be prohibited or valuable to be protected as solely up to Congress.

[defaultdotxbe]

Wasn’t that the essential holding in Wickard too? That if Filburn wasn’t growing his own wheat he would potentially be buying it on the interstate market.

The main difference I see in Raich is Congress using the commerce clause to suppress (potentially interstate) (potential) commerce, rather than to support it.

[ReaderY]

The Wickard Court thought it important that Roscoe Filburn was a commercial farmer who sold most of his wheat in interstate commerce. It held if you actually sell most of your wheat, Congress can also regulate the small amount you don’t sell. The Raich court expanded the principle to cover what could potentially be sold, whether or not one is actually currently in the business of selling it. Hence my comment.

[Dan Schiavetta]

I’ve never realized the true meaning of “money shot”.

[Finbar Sheehy]

'When I use a word,' Humpty Dumpty said in rather a scornful tone, 'it means just what I choose it to mean — neither more nor less. '

As I understand it, Raich held that "interstate commerce" includes situations that involve only one state, and no commerce at all.

Humpty Dumpty has a lot to answer for.

[Michael D]

Defenders of Wickard: SarcastrO, et al, Gonzalez v Raich is one of the fruits of that terrible decision..