Saturday, June 25, 2005

Federalism and federalist analysis of Raich decision, medical marijuana is dead?

This is an excellent, thoughtful, and thorough federalist analysis of the recent travesty in the Raich case.

Scalia talked in circles and abandoned federalism.

Scalia abadoned his federalist ideological "purity." (His protegee Thomas, did not). Scalia sold out his legacy as a federalist icon, he is now a judicial activist in the War on Drugs. The Supreme Court's prior cases dictated clearly a result contrary to the one that Scalia signed off on, yet he still agreed with the Market analysis in Wickhard.

Scalia's concurring analysis is full of idelogical holes for a true federalist. Scalia expanded upon the doctrine of "substantial affects" on interstate commerce set forth in Wickhard. Scalia called the definition of substantial affects "incomplete" and then explained "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." Huh?

He further explained that sometimes regulating intrastate activitites is "necessary and proper" for the regulation of interstate commerce and that may happen in two circumstances:
1. Congress may devise rules for the governance of commerce between states, but may also
2. facilitate interstate commerce by eliminating potential obstructions and to restrict it by eliminating potential stimulants.

Under this reasoning, Scalia believed the federal regulation of pot was valid because simple possession can be regulated by the federal government as part of its larger comprehensive scheme to elimiate controlled substance trafficking and markets. If Congress "could reasonably conclude" that its objective of eliminating marijuana from the interstate market "could be undercut" if possession of purely homegrown marijuana were exempted from federal drug law, then Congress can prohibit adults who have grown their own marijuana from smoking that marijuana in their own homes.

Scalia reasoned that its just to hard to distinguish between home grown marijuana and that which moves in interstate commerce (I thought a new class of so-called plant botanist 'experts' would be the next move of prosecutors across the land).

Are there any limits on Congress's power now? Is Necessary and Proper the next battleground?

Scalia distinguished Morrison on the ground that domestic violence was non-economic activity, yet smoking pot was not. Scalia then really danced on the head of a pin, when he claimed that although the regualtion at issue in Lopez was also noneconomic, the regulation (guns near schools) was not part of a larger scheme of interstate commerce related regulations and therefore was invalid.

Scalia states that Morrison and Lopez do not catergorically declare noneconomic intrastate activity to be beyond the reach of the Federal government. Rather, under the necessary and proper clause, intrastate activity that impacts interstate commerce or that supports a greater scheme of laws that properly and constitutionally regulate interstate commerce, may be reached by a law of Congress.

Scalia is wrong with respect to his analysis of Morrison. Morrison did not even discuss whether the VAWA was part of a larger comprehensive scheme of regulation, a fact that Scalia concedes. (The VAWA seems about as comprehensive in its approach to fighting domestic violence on all fronts as is the CSA with respect to drugs).

Scalia is also wrong as to his analysis with Lopez. While Scalia correctly notes that the Lopez decision itself disclaims that the Gun Free School Zone Act is part of a larger scheme of regulation, is that the logical end of the matter? Will Scalia be satisfied with legislative disclaimers, or should the court have looked at substance over form? May the Supreme Court may now find an implied "Lopez" disclaimer, every time it wants to strike down a federal law that purports not to reach interstate commerce. Conversely, may Congress now insert "anti-Lopez" language in every bill that states that "this bill is part of a larger regulatory scheme" and therefore bullet-proof that law from commerce lause challenges?

This decision is a logical and legalistic sham:

Full opinion here:

Chip Venie is a private criminal defense attorney in San Diego, California. He is admitted to practice before state and federal courts in California, Washington, D.C., and Michigan. Mr. Venie graduated from The University of Virginia School of Law and clerked as a staff Attorney to the United States Court of Appeals for the Fourth Circuit in Richmond, Virginia. Mr. Venie has litigated over 700 trial level felony matters and over 150 appeals. Mr. Venie can be reached at (619) 235-8300, or


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