Supreme Court Agrees To Hear Comstock Federal Power Case:
I blogged about the case in January, as did Ilya. Having had a (rare) success predicting the grant of certiorari, I now predict that the Supreme Court will reverse the Fourth Circuit decision, chiefly for the reasons I mentioned in my initial post.
Related Posts (on one page):
- Supreme Court Agrees To Hear Comstock Federal Power Case:
- Supreme Court Stays Comstock:
- The Comstock Case, Gonzales v. Raich, and the Limits of Federal Power:
- New Federal Power Case, Likely Heading to the Supreme Court:
Concededly, no case has used this as a basis for distinguishing between these kind of cases. But it does bear some resemblance to the analysis used in federal pre-emption jurisprudence. And the opinion in Raich did mention the comprehensive nature of the CSA in its analysis.
Or maybe there's some realpolitik going on here, and the Justices just want to save the law because they think civil commitments are good policy. But with only 3 of the justices in the Kansas v. Hendricks majority still on the court, the feelings of *this* court on that matter, politically, are up in the air.
I always wondered if the conservative lawyer Barbara Comstock was related to Anthony.
I hate to be cynical, but in Lopez, the issue was gun control (for conservatives, bad) and in Morrison, the issue was laws against sex discrimination (again, for conservatives, bad).
Whereas in Raich, the issue was drug laws (for the conservatives on the court, at least, good), and in Comstock, the issue is civil commitment laws for sex offenders (again, for the conservatives on the court, at least, good).
Look, the reality is that the actual construction of Article I Section VIII by the Court is "Congress shall have the power to enact laws that do things that we approve of" and the Tenth Amendment is "the power to enact laws that we do not approve of shall be reserved to the states".
Also, that's a bit of a mischaracterization you've done of the Violence Against Women Act. It wasn't gender discrimination laws that were being challenged, it was the newly-minted federal civil remedy that allowed women to go into federal court and seek damages resulting from sexual assaults.
I don't doubt that Rehnquist, O'Connor, and Thomas were acting in a principled fashion in Raich. And so were the liberals.
Scalia and Kennedy, on the other hand, were engaging in judicial activism. And yes, I've read Scalia's concurrence. It's BS.
Also, that's a bit of a mischaracterization you've done of the Violence Against Women Act. It wasn't gender discrimination laws that were being challenged, it was the newly-minted federal civil remedy that allowed women to go into federal court and seek damages resulting from sexual assaults.
You don't think violence against women is a form of gender discrimination?
Of course, I could have characterized it as "conservatives don't think much of laws against sexual assault", but I think you would have howled even more at that characterization.
Although maybe Dilan's analysis here (what Art I Sec VIII _really_ says) might be the winning one here. A rare tip of the hat to you, Dilan! :-)
So much for the rule of law and federal (tri-partite) governance.
Not that I can really disagree with you, but your summary disheartens me.
Which was not necessary at all, since such remedies are available in state courts.
Congress was not empowered to provide a federal civil remedy for sexual assault in general.
Isn't a grant of certiorari correlated more strongly with reversal anyway?
The solution in my view is not to engage in hairsplitting analysis over Raich, but simply to reverse it as stupidly decided. Step back, and look at the intent of the commerce clause. It was not meant to give every power imaginable to the federal government.
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