Coyote Blog

I will disagree with most commenters -- there is no support for the commerce clause implying any kind of regulatory limitations in this decision.  Any discussion of the commerce clause and what the Supreme said about it is irrelevant.   By this decision, Congress can essentially mandate any activity it pleases as long as it imposes a financial penalty for an individual who ignores the mandate.  SCOTUS upheld that the commerce clause has limits, and then made these limits irrelevant.

From Ace of Spades via Maggies Farm

Obama and, it seems, many courts, would like to pretend that while the Constitution generally speaks of enumerated and limited powers -- all other powers, such a the police power, reserved for the people and the states -- that the Commerce Clause generally is a "Take-Back" clause that essentially calls bullshit on everything else in the Constitution.

That is, everything else in the Constitution is about establishing particular powers of the federal government, and, expressly, reserving those not named (or "necessary and proper" to undertake a named power) to the states.

But this new claim is that really there is only one clause that matters in the Constitution, and that is the Commerce Clause, and this one brief clause renders all 4400 other words in the Constitution null and void, because the Commerce Clause says, it is contended, that the federal government may do anything so long as, in the aggregate, it "affects interstate commerce," which, as is often pointed out, applies to everything.

A century of Progressive attacks on the Constitution have come to this.  I am just going to quote Radley Balko in full:

"¦.a federal judge has just ruled that the federal government can force me to purchase a product from a private company, under the argument that my not purchasing that product affects interstate commerce.

For those of you who support this ruling: Under an interpretation of the Commerce Clause that says the federal government can regulate inactivity, can you name anything at all that the feds wouldn't have the power to regulate?

And if you can't (and let's face it, you can't), why was the Constitution written in the first place? As I understand it, the whole point was to lay out a defined set of federal powers, divided among the three branches, with the understanding that the powers not specifically enumerated in the document are retained by the states and the people.

But if that set of powers includes everything you do (see Wickard and Raich), and everything you don't do (what Obamacare proponents are advocating here), what's the point in having a Constitution at all?

Raich was bad enough.  In that case the high court said the Feds could regulate home-grown marijuana that was grown and consumed entirely in California because that activity might still affect prices in other states (presumably because Californians could have smoked imported weed if they had not grown their own).  (I can't understand how anyone can call this a "conservative" court when it handed down Raich.  Clarence Thomas wrote in Raich:

Respondents Diane Monson and Angel Raich use marijuana that has never been bought or sold, that has never crossed state lines, and that has had no demonstrable effect on the national market for marijuana. If Congress can regulate this under the Commerce Clause, then it can regulate virtually anything and the Federal Government is no longer one of limited and enumerated powers.

A question has been going around on legal blogs -- "Does a Federal Mandate Requiring the Purchase of Health Insurance Exceed Congress' Powers Under the Commerce Clause?"

My answer is:  Nowadays (not in the original intent) is there anything the Feds can do that exceeds current interpretations of the commerce clause?  In Raich, the Supreme Court decided that a product (marijuana) that was grown in state for personal consumption, like tomatoes in your own garden, and was used legally under state law, can still be regulated under the commerce clause.    As Clarence Thomas wrote in dissent:

Diane Monson and Angel Raich use marijuana that has never been bought or sold, that has never crossed state lines, and that has had no demonstrable effect on the national market for marijuana. If Congress can regulate this under the Commerce Clause, then it can regulate virtually anything and the Federal Government is no longer one of limited and enumerated powers

No kidding.

Unfortunately the theory that this personal use in California could somehow affect marijuana pricing in other states (by growing their own, they reduced demand for out of state weed which might affect prices in Arizona -- again similar to an argument that growing your own tomatoes might affect prices in another state) won the day in the Court.   With the Supreme Court accempting this "butterfly effect" argument  (because truly the demand of one person in a national market is like a butterfly flapping its wings in China and affecting a hurricane in the Gulf of Mexico), anything falls under the commerce clause.

Jonathon Adler argues that Senator Feinstein grossly exaggerated the number of cases where the Supreme Court said the Congress had exceeded the bounds of the commerce clause.  Feinstein said it was dozens of times in the last 10 years, Adler counts about two.  I don't have my own count, but smaller numbers seem right to me -- just look at the extent of activities Congress currently pursues under the banner of the Commerce Clause.   For god sakes, several years ago the Supreme Court ruled that federal marijuana laws trumped state laws based on the commerce clause -- even when the drugs are grown for personal use and don't cross state lines.  As Clarence Thomas wrote in that case in dissent:

Respondents Diane Monson and Angel Raich use marijuana that has never been bought or sold, that has never crossed state lines, and that has had no demonstrable effect on the national market for marijuana. If Congress can regulate this under the Commerce Clause, then it can regulate virtually anything and the Federal Government is no longer one of limited and enumerated powers.

But what I found really depressing in Adler's post was this:

Adding up all of the cases in which the Court found statutes exceeded all of the federal government's enumerated powers, including the sovereign immunity cases, the commandeering cases, and the 14th Amendment cases, in the last twenty years still doesn't get us to the three-dozen-plus cases Feinstein claimed. Add in the federalism-related constitutional avoidance cases, and we're still a ways off.

Given all the expansions of federal and Executive power over the last 10 years, and the hundreds of cases in front of the Supreme Court, the Court has not been able to rouse itself more than a handful of times to declare that the feds have exceeded their powers under the Constitution?  Bummer.

I tend to be a pragmatic, rather than a dogmatic, federalist.  What I mean by that is that I support federalism for the pragmatic reason that it tends to slow statism, rather than a dogmatic belief that federalism is somehow morally superior.  Generally, federalism has been good for this country, as it has provided a check to states that go nuts on taxation and over-regulation.  The exodus of businesses from the Northeast in the 60's and 70's and from California more recently are examples of this effect at work, as citizens vote with their feet for the regulatory regime they prefer.

The recent decision on medial marijuana, where the Supreme Court ruled 6-3 that federal marijuana laws trump state medical-marijuana statutes seems to be another nail in the federalism coffin.  One can tell immediately that the ruling is all about federalism (rather than drugs) when you have the spectacle of the three most conservative judges supporting state legalization laws and the most liberal judges ruling for continued marijuana illegality under federal law.  Again reading my handy pocket Constitution (courtesy of Cato), it is hard for me to find where the feds have purview over regulating California home-grown pot smoked in California.  By accepting the argument below, the Supreme Court has basically ruled that the feds can pretty much regulate intra-state commerce, since you can probably make a similar argument in any case:

lawyers for the U.S. Justice Department argued to the Supreme Court
that homegrown marijuana represented interstate commerce, because the
garden patch weed would affect "overall production" of the weed, much
of it imported across American borders by well-financed, often violent
drug gangs

By the way, think about that for a minute.  They are arguing that home-grown weed would "affect" the inter-state commerce of "violent drug gangs".  How would it affect it?  It would reduce their commerce!  So the feds are claiming purview over home-grown pot because it would, what?  Unfairly reduce the inter-state trade of violent drug gangs?

Clarence Thomas makes the point succinctly that accepting this argument is the end of the distinction between inter- and intra-state commerce:

Respondents Diane Monson and Angel Raich use marijuana that has never
been bought or sold, that has never crossed state lines, and that has
had no demonstrable effect on the national market for marijuana. If
Congress can regulate this under the Commerce Clause, then it can
regulate virtually anything and the Federal Government is no longer
one of limited and enumerated powers.

Is it just me, or does this Supreme Court seem all over the place in its rulings?  Maybe you constitutional scholars out there can figure it out.

Update:  More from Reason

More thoughts:  The left complains that the right is trying to create a theocracy via the Supreme Court.  The right argues that it just wants to protect constitutional limits on government, which the left wants to exceed.  I have been and still am suspicious of some conservative judges on the court, but I must say that the way the votes fell in this case certainly hurts the "theocracy" argument.  I would start to believe if it wasn't for the fact that in the next case, if recent history is any guide, everyone will likely reverse their positions again.