Wickard Lives!

Federal Authorities May Prosecute Medical Use of Marijuana.

Forced to choose between its anti-federalism jurisprudence and the War On (Some) Drugs™, the Supreme Court has chosen to re-affirm Wickard v. Filburn's expansive view of federal regulatory power over the national economy. As a result, less of what I taught students in Con Law I ten years ago is obsolete than I might have guessed.

Full text of decisions in Ashcroft v. Raich.

Much as I'm not wild about the specific outcome as social policy, I think this decision is fully consistent with Chief Justice Marshall's view of the evolving Constitution. But it's flatly inconsistent with the modern Federalist Society view. Academic fireworks will now ensue.

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6 Responses to Wickard Lives!

  1. Name says:

    good for thomas for dissenting. (as opposed to voting with scalia and not writing anything himself)
    as he puts it, if congress can regulate this, congress can regulate anything.

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  3. Paul Gowder says:

    Bush v. Gore, now this… can we laugh at the rightwingers’ supposed federalism yet?

  4. Joe says:

    The federalism cases in the Supreme Court in the last decade should be specified with some degree of care. Other than possession of guns near schools (not the same as “cultivating” the things), the cases generally dealt with a limited area of issues. (1) State employees suing states under federal civil rights laws not involving race (2) Laws that force states to do things, like help enforce gun laws (3) the general power of Congress to regulate under the 14A, including a broad attempt to overturn a freedom of exercise case [as much as a federalism friendly case as one defending judicial power] .

    Cases limiting the right of Congress under the Commerce Clause to enforce general laws were really rather few and far between, at least on the SC level. Even the gun case could be avoided by use of limits on spending or determining the gun was in the stream of commerce. Not too hard to do that. Lower courts (including the 9th, probably chuckling) did give Lopez (the gun case) some teeth, but the Supremes did not really do so.

    It’s so easy to say so, but Scalia isn’t a total hypocrite here. CA is not being forced to do anything … it need not arrest the users or growers. The state isn’t being sued. Broad use of the 14A is not at issue. And, mere possession is not involved … cultivation and use here is much more an influence on the drug economy. If the Court strictly applied Lopez, maybe this can be said to be a selective example. But, they haven’t.

    B v. G, especially given their respect for state courts in criminal matters, is definitely hypocritical. This case … though wrong … was much less so.

  5. thomas says:

    I don’t understand Joe’s comments.

    “CA is not being forced to do anything…it need not arrest the users or growers”

    WELL, how would the Supreme Court force California to DO anything anyway?
    They just remanded the case. Of course they don’t compel a state to do something.
    They can’t, can they? Do you think the judiciary can say “we order the State of California to do XYZ?”

    I don’t think that there is some nuanced, constitutionally correct Federalism theory being propagated here either.

    To say that the Commerce Clause permits the Congressional prohibition of something never bought, never sold, that is grown in-state for in-state consumers…I admit I am flabbergasted.

    But I don’t like the theory that growing your own wheat affects interstate commerce either.

  6. Joe says:

    My argument was that most of the federalism cases joined by Scalia could be fit in certain categories. Cases like this one, in which federal power per se is deemed to violate the Tenth Amendment, have been rather few in number, so it’s hard to say exactly that Scalia is being unprincipled. The sample size is rather small. That’s my primary point.

    As to the quoted passage, some of the justices would say, yes, you could force CA to do something. This was seen in the Printz case involving a federal regulatory scheme involving the Brady Bill. The majority per Scalia said the feds could not “commandeer” state sheriffs into helping to uphold the law. Four justices disagreed. If the provision involved regulation of interstate commerce of drugs (however defined) instead of guns, the decision probably would have split fairly the same way.

    The “forced” applies to the DEA etc., not the Supreme Court itself. To some degree, the feds can force the states to do something — the Supremacy Clause allows some compulsion of state judges in various cases. But, this is not the issue in this case. It is not a commandeering case, so Scalia is not unprincipled in that respect.

    As to the wheat, the amount at issue was considerable enough (see article in Findlaw) to have some affect on interstate commerce … at least, it’s not the same as the small amount of drugs used here which is for personal use. Justice O’Connor also noted differences. As to consistency, Orin Kerr over in SCOTUSBlog argued Kennedy’s vote was consistent with his concurrence in Lopez … it might be of interest.


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