Today, in United States v. Sullivan, the U.S. Court of Appeals for the D.C. Circuit upheld the conviction of Roger James Sullivan for "knowingly possessing child pornography images that were transported in interstate commerce via the Internet." A unanimous panel rejected Sullivan's claim that Congress lacked the power under the Commerce Clause to prohibit the purely intrastate possession of pornography. Relying upon the Supreme Court's decision in Raich v. Ashcroft, the court had no difficulty dispatching Sullivan's claim.
Not all three judges on the panel were comfortable with this result, however. Judge David Sentelle wrote a separate concurring opinion to note the confusion in current Commerce Clause jurisprudence, in partciular the conflict between the holdings of Raich and United States v. Lopez. Wrote Sentelle:
As appellant’s argument properly points out, Lopez limited the reach of the Commerce Clause to three categories. The first two are plainly not implicated by appellant’s conduct. Therefore, for the federal government to constitutionally regulate that conduct, it must fall within the category of “activities having a substantial relationship to interstate commerce . . . i.e., those activities that substantially affect interstate commerce . . . .” I am at a loss as to how purely intrastate possession of a product that has previously traveled interstate substantially affects interstate commerce. . . .Amen.It is not at all plain to me that the present conduct falls within any of the three analytical elements [identified in Lopez. First, it is not clear that regulation of purely intrastate possession of a product is necessary to the regulation of the commercial activity which Congress seeks to regulate. Second, there is no relevant jurisdictional section. Third, if the purely intrastate and noncommercial possession of a product is regulable simply because some of the product may have previously passed in interstate commerce, then I see no stopping point.
In the end, however, I cannot fault the majority’s application of the later decision in Raich. I can, however, hope that the High Court in some further decision gives us some better method of reconciling its holdings on the extent of congressional power under the Interstate Commerce Clause.
Related Posts (on one page):
- The Herpes Theory of the Commerce Clause:
- Limits on Federal Power After Raich:
And this has important implications for individual liberty. Empowering an additional level of governmental regulation-- by the most powerful governmental actor, the federal government-- necessarily reduces the private sphere of individual choice. And the federal government uses this power to go after all sorts of things-- including regular adult pornography and drug possession and use (including not only narcotics but ordinary prescription drugs, as Rush Limbaugh may have just found out)-- that it doesn't approve of. Further, because of the disproportionate influence of red states on the Presidency and the Senate, this imposes red state values on blue states. (That's what has happened with respect to medical marijuana, actually.)
This whole area of the law also shows the limited utility of "left" and "right" labels on justices. The most ardent protector of these rights is Clarence Thomas, who would allow Californians who want to smoke their medical marijuana to do so without federal interference. And Judge Sentelle, of course, had a hand in picking Ken Starr to investigate Clinton, and he would reduce the federal government's role in regulating porn.
I'd like to see future justices questioned on these issues in their confirmation hearings; this may not be Roe v. Wade or the war on terror, but this issue is important.
Raich, like Wickard, concerns the regulation of a particular commodity. It is within the core ambit of the Commerce Clause for Congress to regulate trade among the states in that commodity--including fixing. Raich teaches that Congress has near-plenary power over intrastate activities which, if allowed to proceed unchecked, would interfere with its plan for interstate commerce regulation: it can ban drugs or child porn or the consumption of non-price-supported wheat. Doing so is necessary to its regulation of interstate commerce.
It doesn't follow that it can do absolutely anything or that the Commerce Clause is a nullity, however; in both Lopez and Morrison, the purported connections to commerce had nothing to do with the interstate trade in a particular good, just some other inchoate effects on the economy. There was no fungible commodity, capable of moving in both inter- and intrastate commerce, at issue; rather, the question was the national economic effects of local conduct. My possession of a firearm near a school cannot be sold, nor does it affect the likelihood that the firearm will be carried over state lines or possessed near a school there. It might have interstate economic effects, but all activities do. It is not, however, necessary to the interstate regulation of one of the first two categories of regulable things (channels and instrumentalities of interstate commerce) the Court listed in Lopez.
Whatever the relative wisdom of Raich and Lopez (or for that matter the lack of wisdom of price fixing and drug banning), I don't think the opinions are all that hard to reconcile with one another.
This just isn't true. There certainly is a fungible commodity capable of moving in both inter and intra state commerce in Lopez, namely firearms.
Now of course the natural response to this point is that congress isn't seeking to regulate firearms in general but merely a certain intrastate use of firearms. Since the possession of non-possesion of firearms near schools doesn't have a significant effect on the interstate traffic in firearms there is no federal authority. In other words it seems you are suggesting that the federal government has commerce clause power over intrastate acts only when necessery to pursue some valid interstate end.
Alright so far so good but what about the VAWA. Certainly violence against women affects interstate commerce in some way, if only by altering the sale of books on violence against women. More plausibly one might be able to show in Lopez that the possession of guns near schools significantly effects interstate trade in metal detectors. Yet obviously these hokey justifications can't justify federal laws governing the intrastate conduct even if some significant effect on interstate commerce is shown. It sees clear that in the background of the Lopez and VAWA cases there must be the assumption that some significant effect on interstate commerce is not sufficent to justify federal intrastate regulation if it is just a cooked up excuse to justify reaching some intrastate activity. In other words the reasoning in Lopez and VAWA only makes sense if the federal government is honestly trying to regulate some truly interstate activity and the intrastate regulation is necessery to achieve this end.
So let's apply this reasoning to Raich. Is it true that the controlled substances act is aimed at fixing the interstate problems caused by drug trafficing? Well a quick glance at the drug laws tells us otherwise. The scheduling system is explicitly based on the medical uses and harm to the user not the nature of interstate traffic in the item. Unofficially the scheduling system has everything to do with the social role/hedonic value of the drug. Quite obviously as the anti-drug commercials demonstrate the federal government's intent is to prevent certain intrastate activity (people smoking pot) and the interstate laws (transportation etc..) are only means to this end.
Now even if you don't believe this argument the tension between Raich and Lopez is still quite strong. Suppose instead of growing pot we are talking about growing opium for medical purposes. Obviously one expects the result to be the same but unlike with pot opium is (for almost all intents and purposes) fungible with morphine. Yet morphine can be legally sold in interstate commerce (medical uses). It would seem the only option Scalia would have to justify the same result would be to claim that 'licit' and 'illicit' uses of opium/morphine have to be considered differently and the federal government needs to ban the growth of opium to stop illicit interstate trade in opium.
Already the problems become apparent. The licit/illicit distinction is the very thing we are debating whether the federal government has the power to create. Thus the real claim that must carry the weight is that the federal government is blocking trade in opium/morphine destined for
non-medical purposes. Yet if arbitrarily dividing a fungible commodit like this is valid we can do the same thing with firearms. The government is in the buisness of stopping the interstate sale of guns that are destined to be used near schools. Note that just like the federal government did with drugs they could make it the case that there were different supply chains for the guns that were brought close to schools and those that weren't (at least as much for drugs many of which are diverted).
I agree the distinction between valid federal attempts to stop commerce in a banned item and using commerce in that item as an excuse is a tricky buisness. However, this is exactly the point.
Silly, of course. But if it's a desideratum that the law be consistent, it should fly.
Given that Mr. Patton’s possession was not interstate, not commercial, and not an essential part of a comprehensive scheme of economic regulation, that his use of the bulletproof vest was in self-defense and not connected to crimes that might affect interstate commerce, and in light of the CBO’s prediction that the statute would be applied fewer than ten times a year, we find no rational basis for concluding that the possession of body armor prohibited by section 931 substantially affects interstate commerce. We thus conclude that 18 U.S.C. § 931 cannot be justified as a regulation of the channels of commerce, as a protection of the instrumentalities of commerce, or as a regulation of intrastate activity that substantially affects interstate commerce.
. . .
Although the body armor statute does not fit within any of the Lopez categories, it is supported by the pre-Lopez precedent of Scarborough v. United States, 431 U.S. 563, 575 (1977), which held that Congress intended a felon-in-possession statute to prohibit possession of any firearm that had moved in interstate commerce. Scarborough decided only a question of statutory interpretation about a previous version of the felon-in-possession statute, but the decision assumed that Congress could constitutionally regulate the possession of firearms solely because they had previously moved across state lines.
. . .
Like our sister circuits, we see considerable tension between Scarborough and the three-category approach adopted by the Supreme Court in its recent Commerce Clause cases, and like our sister circuits, we conclude that we are bound by Scarborough, which was left intact by Lopez. Even if we were not persuaded that Scarborough remains “the case which directly controls,” Agostini v. Felton, 521 U.S. 203, 237 (1997), we would still be compelled to follow its reasoning by prior decisions of this Court, which have continued to adhere to Scarborough despite Lopez and the subsequent cases. See Bolton, 68 F.3d at 400; Farnsworth, 92 F.3d at 1006; Dorris, 236 F.3d at 584-86. Any doctrinal inconsistency between Scarborough and the Supreme Court’s more recent decisions is not for this Court to remedy. Agostini, 521 U.S. at 237. We suspect the Supreme Court will revisit this issue in an appropriate case—maybe even this one.