Today in Supreme Court History: November 29, 2004

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

Randy Barnett argues Gonzales v. Raich

 

Comments

[F.D. Wolf]

One will note the absence of Chief Justice William Rehnquist in the empty center seat of the bench. Senior Associate Justice John Paul Stevens was serving as Acting Chief. This was about a month after the Court announced that Rehnquist had been diagnosed with thyroid cancer and was receiving treatments. He would miss 44 oral arguments before returning to the bench on March 21, 2005, though he did continue to participate in Court business during that time.

Upon his return, most observers commented that he seemed much better, even back to his old self, seeming particularly better than he had when he had sworn in President George W. Bush to a second term on January 20, 2005, when he had used a cane and seemed quite weak. (Bush would later say he greatly appreciated Rehnquist's participation, as it had been something of a physical effort for him). The only noted difference was his usual baritone voice was higher, affected by a tracheotomy and other treatments for his thyroid cancer. Rehnquist would pass away a few months later on September 3, 2005.

[not guilty]

Chief Justice Rehnquist had been ailing for quite some time. I argued before SCOTUS in the fall of 1991. The folks doing my moot courts told me not to be alarmed if the Chief got up during mid-argument to walk around. Apparently he sometimes did that because of back trouble.

[JoeFromtheBronx]

Justice Stevens presided with Rehnquist ill.

Rehnquist eventually joined the dissenters. O'Connor wrote the main dissent and Thomas wrote his own. Scalia wrote a concurrence. Kennedy joined Stevens' majority opinion.

Stevens was sympathetic but consistent in applying his constitutional views. I think the majority on the Commerce Clause argument was correct, though I am open to a liberty argument.

Meanwhile, O'Connor was wary about medicinal marijuana and consistent in arguing her constitutional views. Stevens and O'Connor provide some optimism regarding judges' ability to apply the law neutrally.

Paul Clement (as solicitor general) defended the law. Randy Barnett's presentation was somewhat rough. It was his only argument in front of the Supreme Court so far.

[JoeFromtheBronx]

The contributor formerly known as captcrisis included a suitable food-related case for those still eating those Thanksgiving leftovers.

Justice Blackmun (with Burger) dissented, noting in part:

I fear that state troopers the country over, not handsomely paid to begin with, will never understand today's decision. And I doubt that their reading of the Court's opinion -- if, indeed, a layman can be expected to understand its technical wording -- will convince them that the situation is as clear as the Court purports to find it.

https://www.oyez.org/cases/1977/76-1095

[Krayt]

Commissioner v. Kowalski, 434 U.S. 77 (decided November 29, 1977): cash meal allowances to New Jersey police officers are taxable income
...
I fear that state troopers the country over, not handsomely paid to begin with, will never understand today's decision.

How to understand: Voracious government cutteth both ways.

[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

[ReaderY]

I thought the basis of the decision in Commissioner v. kowalski was that the cash “meal allowance” wasn’t actually food related but could in reality be spent any way the trooper wanted.

[Dan Schiavetta]

That was true (essentially) but it's hard to see how police officers could, consistent with the Court's decision, be given any kind of allowance for meals and it not be included in gross income.

[ReaderY]

They could provide proof of spending on meals while working, keeping receipts and turning in expense reports reimbursable up to a maximum. More paperwork and hassle of course. But it’s what a lot of companies do. Flexible spending accounts for example work that way.

[Dan Schiavetta]

Realistically I don't think officers on patrol, and perhaps doing stakeouts, chasing and apprehending suspects, etc., can be held to such an exacting regime. For one thing, they might have to bring in food from home. Also, do food trucks provide receipts?

[Noscitur a sociis]

They could provide proof of spending on meals while working, keeping receipts and turning in expense reports reimbursable up to a maximum.

I don’t think that’s right: the court held that the exclusion for employer-provided meals only applied to actual meals, and “does not cover cash payments of any kind”.

[David Nieporent]

Right, and it's hard to see why it shouldn't be taxable.

[ReaderY]

I continue to think Raich was wrongly decided. In general, I think that simple possession of an item for personal use by somebody not involved in the business of interstate transportation or distribution is not subject to Congress’ power to regulate interstate commerce, whether or not the item previously passed through interstate commerce.

And I think that the historical impulse to see Congress as alwways an instrument of good, right, and progress and states as backward and reactionary is something liberals, not just traditional conseevatives, should reconsider in light of the Trump era. There are reasons not to always favor making the federal government all-powerful. The federal government can solve problems. But ir can also cause them.

[Noscitur a sociis]

As I believe I’ve pointed out before, Raich does not rely on drugs having “previously passed through interstate commerce” for its holding.

[ReaderY]

That’s so, but I did say “whether or not,” which covers the Raich fact situation.

[JoeFromtheBronx]

"Congress as always an instrument of good, right, and progress and states as backward and reactionary"

Liberals repeatedly have criticized congressional policy, including DOMA, the crime bill, NAFTA, and so on. They also have praised state action in a variety of ways, including regarding abortion.

I think liberals have been more guarded about some simplistic Congress-centric approach for quite some time.

[jdgalt1]

Until SCOTUS admits that Wickard was wrongly decided, follow-on cases such as Raich will continue to come out wrong, too. The Federalist Papers tell us perfectly well what is and is not interstate commerce.

[SRG2]

The Federalist Papers tell us perfectly well what is and is not interstate commerce.

No they don't. They tell us what Madison, Hamilton and Jay thought. They do not tell us what all the FFs who did not write the FPs thought.

[JoeFromtheBronx]

Wickard was not wrongly decided.

SRG2 is correct that the Federalist Papers are not official commentaries. They in some fashion -- and not in whole, regarding each point they made -- influenced some ratifiers.

To the degree they talked about interstate commerce, they didn't answer all questions. And, today's case can be defended even if the Federalist Papers alone had to be relied on.

Which they are not in interpreting the Constitution.

[Josh R]

What interstate commerce is not controversial. What is controversial is whether the Necessary and Proper Clause permits Congress to regulate conduct that substantially affects interstate commerce.

[Michael Resanovic]

Congress has greatly misinterpreted the scope of the Interstate Commerce Clause. To what extent that can be fairly be blamed on the American people is debatable.

[Lee Moore]

I’m only commenting on the speech bubble, not the law :

“Whether an activity is economic, you have to look to the activity itself. And an economic activity is one that’s associated with sale, exchange, barter. The production of things for sale and exchange, barter.”

This may be a reasonable description of “trade” or conceivably “commerce”, but it’s certainly not a reasonable description of “economic activity.”

Economics is the study of scarce resources, and economic activity (or inactivity) refers to the utilization of scarce resources. You don’t require a trading partner in order to be faced with economic questions. Robinson Crusoe had many economic decisions to make, long before Friday turned up. When a leopard drags its kill up a tree, that’s an economic decision.