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Congressional Over-Raich

By now, you’ve heard about the Supreme Court’s decision in the medical marijuana case, Gonzales v. Raich (previously Ashcroft v. Raich). They ruled that Congress had the power to ban the use of medical marijuana even in states that had voted to allow it. Now, I’m not a lawyer, I don’t play one on TV, and regularly reading The Volokh Conspiracy doesn’t imbue me with magical lawyer-like powers. So I’ll point you to this summary of the opinions from Orin Kerr of the Volokh Conspiracy and this very extensive but readily understandable analysis by Larry Solum of the Legal Theory Blog. But since those are long and most of you won’t bother clicking on them anyway, let me try and explain how I see it in my own uniquely flingalicious way.

Background

In case you don’t know what this is all about because you were watching the Michael Jackson case instead, let me fill you in (although note that much of this is shamelessly poached from this excellent backgrounder from Salon, via Jim Lindgren). Anyway, as you probably know, the federal government bans the use of marijuana through the Controlled Substances Act (CSA) of 1970. It’s interesting to note that marijuana is labeled a Schedule I drug (the most dangerous drugs) even though drugs like cocaine, morphine, and PCP are Schedule II. However, I won’t delve into the pros and cons of that here. For now, suffice to say my stance on the Drug War is pretty much the standard libertarian line (and until I get around to writing up the post explaining why, you can read this excellent 2001 survey of the drug war from The Economist).

In contrast to the federal government, California passed Proposition 215 in 1996 which permits the use of marijuana for medical purposes as long as you have a doctor’s permission. And again, I won’t go into the issue of whether or not marijuana has any medical value here, and it’s interesting to note that the federal government didn’t contest that in this case. But Prop 215 conflicted with federal law, and federal agents went into California several times to enforce the CSA, arresting people who were actually in full compliance with all state and local laws. To try and put a stop to this, Angel Raich (among others) sued the federal government for overreaching its authority.

The 9th Circuit Court of Appeals found in Raich’s favor, but the federal government appealed to the Supreme Court. Note, two sides are not called plaintiffs or defendants in this case. Instead, the federal government’s side is called “the petitioners,” since they petitioned the Supreme Court to overturn the 9th Circuit, and Raich’s side is called “the respondents,” no doubt because lawyers delight in complicated legalese to make themselves feel smarter than everybody else.

Incidentally, the respondents were represented by none other than Randy Barnett, who, like Orin Kerr, is one of Eugene Volokh’s co-bloggers at The Volokh Conspiracy. Anyway, as I mentioned before, the Supreme Court ruled 6-3 in favor of the petitioners. Of course, to understand why and what all of this means, I’m going to have to take you back a bit further and discuss…

Federalism

Yes, it’s really all about federalism. Although the case was ostensibly about medicinal marijuana, court cases like this aren’t supposed to hinge upon approval or disapproval of marijuana itself (medical or otherwise), but upon whether the Supreme Court thinks Congress has the power to regulate it over the objection of the states. In short, it’s all about who has jurisdiction here. After all, the U.S. is not a monolithic country with one government. We’re made up of a union of states where authority is decentralized — well, it used to be, anyway. The whole dividing line of who has what authority has obviously changed over time, but where to draw that line is what this case is all about (well, legally about anyway — everyone always speculates whether the justices let their personal feelings about the subject affect their rulings).

Raich in particular is specifically about the Interstate Commerce Clause of the Constitution (Article I, Section 8, Clause 3), which states that Congress has the power “[t]o regulate Commerce… among the several States….” Now I know what you’re thinking. You’re thinking, “Hey, I thought this was a blog devoted to worshipping the hotness that is Natalie Portman?” Um, okay. Well, I know what you should have been thinking if you were paying attention, which is, “Hey, commerce is trade, so how the frell does home-grown marijuana for private use constitute commerce, let alone interstate commerce?”

Well, it obviously doesn’t.

Unfortunately, it isn’t as simple as that. There’s also the Necessary and Proper Clause (Clause 18), which essentially gives Congress the power to enact any law “necessary and proper” (thus the name, duh!) to carry out its duties. This is also known as the “elastic clause” and is considered by many to be giving Congress a blank check. As you might guess, this interpretation is very much despised by us libertarians and conservatives who champion states rights, and who point out that it’s not a blank check since the burden of proof is to demonstrate why a power is necessary. And we also point to the 10th Amendment, which says that any power not delegated to the federal government is reserved to the states.

Still, there has always been an ambiguity in the Constitution in regards to which powers go to the states and which powers go to the feds. However, we’ve seen a long trend towards federal encroachment upon states rights. This all started, not surprisingly, with a Democrat, namely Franklin Delano Roosevelt. He was trying to push through far-reaching New Deal legislation but was facing opposition from the Supreme Court. After FDR threatened to pack the Supreme Court to 15 justices, a couple of Supreme Court justices flip-flopped in 1937 what is known as “the switch in time that saved nine” (yes, this is a play of words on the old axiom, “stitch in time,” and this had always confused me until now). The New Deal Court and then the Warren Court then proceeded to uphold FDR’s New Deal as well as other legislation that continually broadened federal power under the interstate commerce clause and the necessary and proper clause.

This trend is often called “New Federalism” movement (I like to say Frelled-eralism, but I think I’m probably the only one), and it includes a case known as Wickard v. Filburn.

Wickard and Lopez and Morrison (oh my!)

You may have noticed this 1942 case referenced a lot in the Raich decision. As Solum summarized:

In Wickard v. Filburn, the Supreme Court upheld a statute that regulated wheat that was consumed on a farm and never entered the interstate market; indeed, the wheat was never sold at all. The Court concluded that the “cumulative effect” on interstate commerce of regulating wheat that was used on all the farms in the country could be substantial, and therefore, that the regulation was a valid exercise of the commerce clause power.

As you can see, there are strong parallels with the Raich case, which is why it was cited as precedent. Wheat that was never bought or sold clearly wasn’t commerce, but the court ruled that the production of the wheat impacted interstate commerce because the price of wheat was affected by this farmer removing himself from the pool of demand for wheat. Seems like it makes sense, but I’ll point out the issues with this when I discuss the Raich decision.

It would seem that this precedent would make the Raich decision a foregone conclusion, but as Barnett argued, no precedent should stand in the way of correcting a mistaken interpretation of the Constitution. Furthermore, there were signs that the Rehnquist Court intended to reverse the trend of New Federalism with its 1995 U.S. v. Lopez decision, followed in 2000 by U.S. v. Morrison. In Lopez, the court overturned the Gun-Free School Zones Act of 1990. The government had argued that gun possession leads to crime which impacts the economy. Rehnquist essentially said, “Weak!” In other words, the issue of guns in schools was so far removed from commerce that if it were covered by the commerce clause, then everything could be regulated by Congress under that clause. Morrison overturned the Violence Against Women Act of 1994 using similar reasoning.

Of course, the cynical among will note that the Rehnquist Court upheld states rights when it furthered conservative ideology but not when it furthered liberal ideology. But note that the four liberal justices, namely Ginsburg, Souter, Breyer, and Stevens, all sided with the majority in Raich to ban medicinal pot, joining centrist Kennedy and conservative Scalia (the dissenting justices were Rehnquist, O’Connor, and Thomas). Why the liberals would rule against medical marijuana is exactly because federal power is very important to them — much of the federal advancement of liberal causes was based upon the commerce clause (via the lexfiles). So it’s not surprising that liberals desire a stronger federal government (although you would think that the thought of a powerful federal government with all three branches under conservative control might make them think twice about the soundness of this idea).

Indeed, everybody was pretty much consistent with their stances on federalism except Scalia. I won’t comment on Scalia’s decision, but aside from the usual excoriating, there’s some more thoughtful discussion from Cato X at Ex Post and Ann Althouse guest-blogging at SCOTUSblog.

The Raich decision

So anyway, it seemed that the Supreme Court was faced with the choice of continuing to undo New Federalism by overturning Wickard — or reversing course again by overturning Lopez and possibly Morrison. A bit of a quandary! Well, as you know, they chose to double-back towards a more powerful federal government but avoided overturning Lopez or Morrison. And they did this by — get this — redefining the term “economic activity” in such a way to include Wickard and Raich but exclude Lopez or Morrison. Yes, I kid you not. Here’s Solum again on Justice Stevens’s majority opinion:

Stevens’s definition of “economic” represents a significant development. Before Raich, the best understanding of “economic” activity centered on the idea of exchange. “Economic” activity included the sale or barter of goods or services. That definition would not apply to the activity in Raich, because the marijuana was home grown or a gift — no sale or barter was involved. But under Stevens’s definition, the activity in Raich was economic, because it involved a “commodity.”

Digression: Stevens’s definition is actually quite bizarre. First, it includes only commodities. It would suggest that the category of “economic” activity excludes services entirely — even if the service is sold or bartered. That can’t be right. Second, it includes anything that can be categorized as a commodity — even if the commodity in question has no connection to sale or barter. If a child plucks daisies from a home garden and weaves them into a garland, that is “economic” activity according to Justice Stevens. End of Digression.

I’d have to agree. Our economy is becoming more and more service-oriented as it transitions away from manufacturing, so excluding this is as bizarre as Natalie Portman’s lack of screen time in her latest film. And Solum’s second point was made much earlier by Rehnquist in Lopez and also echoed by Jim Lindgren at The Volokh Conspiracy, who said, “every choice displaces another choice.”

This all hearkens back to the economic concept of opportunity cost, and is the problem with the original Wickard decision. Yes, removing yourself from the wheat market or the marijuana market has an economic impact. But every action and every choice has an economic impact just because it rules out all the other choices you could have made — many of which inevitably affect an economic market of some kind. For example, choosing to spend time watching television or reading a book or diddling yourself means less time (and thus money) spent at movie theatres or on DVDs. But even though the film and industry and DVDs involve interstate commerce, it would be absurd to argue that the Congress has the authority to regulate your private behavior (or behavior with your privates) under the Commerce Clause.

I realize that this isn’t really a legal argument. It could very well be that the court’s decision was correct and the Constitution really means that Congress does have this power. But whether or not it does, I really don’t care. I’ll let the lawyers and legal types wade through the legalese and debate originalism as much as they want. My point is just that this result is clearly stupid. Either it’s a stupid-ass decision or it’s a stupid-ass law. Either way, the resulting situation is just totally unacceptable and makes a complete mockery of the entire concept of states rights.

A flawed system

So how did things get so frelled-eralized (okay, that just has no chance of catching on)? Well, I do think there are serious issues with the Supreme Court. Because justices have lifetime terms, the ideological makeup of the court is rather arbitrary, depending on who’s president when justices happen to die or retire. Furthermore, justices have no incentive not to suck. After all, they’ve got their gig for life! Term limits seem pretty sensible, but hey, don’t listen to me, listen to Richard Posner and Gary Becker instead.

There are other issues with the Supreme Court, but I don’t think it’s the real problem. The hope is merely that the Supreme Court keep Congress in check from claiming too much power — that Congress keeps claiming more power is the real problem. And why should we be surprised? Any political entity is incentivized towards gaining more power. The whole idea behind separation of powers and checks and balances is to use this tendency to keep all three branches competing with each other, resulting in no branch gaining too much power (of course, it mostly works when the branches are controlled by different parties, but that’s a whole other can of worms).

Do you see what the issue is in regards to federalism? None of the branches has an incentive to champion states rights. Although states have representatives in the Senate, Senators aren’t motivated by states rights. Note that incumbents already have a huge advantage, and most voters don’t even understand the concept of federalism, let alone care about it. So as long as Senators bring home the federal pork, they’re pretty much set with the voters (and the same goes for representatives in the House). Indeed, they’re better off when Congress grabs more power from the states because then they get to wield this power themselves as Senators. Talk about the fox guarding the henhouse!

What is the answer to this? Well, I do have an idea that was the initial impetus for this post, but as I’ve already run on more than long enough, I’ll have to wait to discuss that in a future post. In the meantime, for more on this case, check out Larry Solum or Salon or Wikipedia. There’s also more legal discussion at The Volokh Conspiracy and also a Mega Group Blog on Raich (kinda like Voltron, only without the lions and space battles and all that) at SCOTUSblog. I couldn’t find a round-up of these posts, so if you’re interested, I’d recommend just starting from the first one and clicking through them one by one using the links to the next and previous posts at the top (note that there are a few non-Raich posts mixed in here and there).

And of course, I would be terribly remiss if I did not direct you to the one and only Fafblog!, which has a hilarious take on the meaning of commerce.