Coyote Blog

Walter Olson paraphrasing Paul Horwitz

...mainstream law professors would develop a sudden, strange new respect for constitutional law concepts such as separation of powers and federalism, which tend to serve as checks on the power and ambition of the President and his backers.

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 am totally confused - under what reading of the constitution can this possibly be within Federal powers?  Is there an off-chance that a pool might pick up and move across state lines?

A new federal pool-safety law has cash-strapped Valley homeowners' associations and apartment managers scrambling to finish costly drain modifications so they won't have to close pools this summer.

Some have already locked gates and posted signs; a few are mulling permanent closure to avoid renovation costs or stiff penalties and legal liabilities if they fail to comply.

The Virginia Graeme Baker Pool and Spa Safety Act went into effect in December and requires that all outlet fittings and drain systems in public and semi-public pools meet new safety standards that prevent drain suction from holding swimmers under water. Backyard pools at single-family residences are exempt.

Certainly the old design can be dangerous -- we updated our drains when we re-did our pool.   But a federal law?

One might expect that the underlying problem was so grave that it necessitated the shortcut of federal regulation over state and local regulation (which normally covers things like pool construction standards).  But in fact the article says that, according to the law's promoters, less than 2 people per year have been killed by this problem, and presumably most of these have been in private pools not covered by the law (since their numbers statistically dwarf those of public pools).

So why has expensive extra-Constitutional federal legislation been passed to save less than one person per year?  Well, because that one person was once related to a famous politician:

The law was named after the 7-year-old granddaughter of former Secretary of State James A. Baker III who died in 2002 in a spa after the powerful suction of a drain held her underwater.

I have written before how politicians' personal experiences often lead to bad regulation.

Yesterday I wrote that this Supreme Court confused me - I couldn't find a consistent thread in their federalism-related rulings.  Orin Kerr at Volokh has an explanation that makes more sense to me than any other.  He explains where each justice is coming from, and concludes:

The mathematics of federalism on today's Supreme Court, then, is that the four
Justices who do not favor judicial enforcement of federalism constraints only
need one additional vote to form a majority. Conversely, for the Court to rule
in favor of a federalism limitation, common ground must exist that ties together
the differing viewpoints of all five of the right-of-center Justices. The odds
are that the former will happen more often than the latter, which is why
victories for federalism principles have tended to be rare and on relatively
narrow (that is, symbolic)
issues

The Mises Blog informs me that this notion of "affecting" interstate commerce being sufficient to justify federal intervention originated in 1942 with Wickard v. Filburn.  Apparently the majority was accepting Wickard, though Thomas's dissent that I quoted in my earlier post sure points out how Wickard pretty much demolishes the commerce clause.

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.

Many people of late have suspected that Republicans, now that they have power in the central government, have abandoned federalism (federalism being the philosophy of government that legislative power for as many issues as possible be devolved to the most local unit of government possible).  The recent abortion bill passed by the House seems to confirm this:

The House passed a bill yesterday that would make it a federal
crime for any adult to transport an under-age girl across state lines to have an
abortion without the consent of her parents.

When selling federalism in the past, Republicans have argued that federalism better protects individuals and their rights, because it creates competition among states.  Individuals and businesses fed up with bad legislation in one state can move to a more favorable climate.  Now, however, the Congress is stepping in to limit free movement between states to prevent individuals, in this case teenage girls, from shopping for a better regulatory climate.  What's next?  Preventing businesses from moving across state lines to a state with lower taxes?

By the way, there is a lot of sloppy thinking in the debate on parental notification for teenage abortions.  In this debate, the legal or moral status of abortion is nearly irrelevant.  Underage children are special class of citizen who are not yet acknowledged by the law as being able to make certain adult decisions.  Already we regulate and restrict underage decision-making on driving, drinking, smoking, voting, etc.  All of these are perfectly legal activities that we don't let teenagers do at all.  So even if abortion is entirely legal and Constitutionally protected, it can still be both legal and ethical to place restrictions on it for minors -- remember that voting, and to some extent drinking due to the 21st amendment, are Constitutionally guaranteed activities we legally deny teenagers).  Heck, most states have parental permission laws for teenagers to use tanning salons, which is certainly a much more trivial activity than getting an abortion. 

I am not an expert on abortion law, but my memory is that the Supreme Court ruled that abortion parental notification and permission laws are Constitutional if the law includes an option for the girl to override her parents veto through the judiciary.  I have always argued that we should place an additional proviso in the parental permission laws, one I think both sides of the abortion debate might accept -- if a parent refuses to allow their daughter to have an abortion, then the girl's parents must adopt the baby and be ready to raise it themselves.