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Key Sections in Gonzales v. Raich: I'm reading through the opinions in Gonzales v. Raich, and I thought I would post the key sections as I go. Justice Stevens' majority opinion, joined by Justices Souter, Breyer, Ginsburg, and Kennedy, is here. The key sections:
  As we stated in Wickard [v. Filburn, 317 U. S. 111, 128–129 (1942)], “even if appellee’s activity be local and though it may not be regarded as commerce, it may still, whatever its nature, be reached by Congress if it exerts a substantial economic effect on interstate commerce.” Id., at 125. We have never required Congress to legislate with scientific exactitude. When Congress decides that the total incidence’ ” of a practice poses a threat to a national market, it may regulate the entire class. See Perez, 402 U. S., at 154–155 (quoting Westfall v. United States, 274 U. S. 256, 259 (1927) (“[W]hen it is necessary in order to prevent an evil to make the law embrace more than the precise thing to be prevented it may do so”)). In this vein, we have reiterated that when “ ‘a general regulatory statute bears a substantial relation to commerce, the de minimis character of individual instances arising under that statute is of no consequence.’ ” E.g., Lopez, 514 U. S., at 558 (emphasis deleted) (quoting Maryland v. Wirtz, 392 U. S. 183, 196, n. 27 (1968)).
Stevens found this case on all fours with Wickard:
  Wickard thus establishes that Congress can regulate purely intrastate activity that is not itself “commercial,” in that it is not produced for sale, if it concludes that failure to regulate that class of activity would undercut the regulation of the interstate market in that commodity.
  The similarities between this case and Wickard are striking.
Applying the general principles to this case, Stevens concluded:
  Given the enforcement difficulties that attend distinguishing between marijuana cultivated locally and marijuana grown elsewhere, 21 U. S. C. §801(5), and concerns about diversion into illicit channels, we have no difficulty concluding that Congress had a rational basis for believing that failure to regulate the intrastate manufacture and possession of marijuana would leave a gaping hole in the CSA. Thus, as in Wickard, when it enacted comprehensive legislation to regulate the interstate market in a fungible commodity, Congress was acting well within its authority to “make all Laws which shall be necessary and proper” to “regulate Commerce . . . among the several States.” U. S. Const., Art. I, §8. That the regulation ensnares some purely intrastate activity is of no moment.
The opinion distinguishes Lopez and Morrison:
  Unlike those at issue in Lopez and Morrison, the activities regulated by the CSA are quintessentially economic. Economics” refers to “the production, distribution, and consumption of commodities.” Webster’s Third New International Dictionary 720 (1966). The CSA is a statute that regulates the production, distribution, and consumption of commodities for which there is an established, and lucrative, interstate market. Prohibiting the intrastate possession or manufacture of an article of commerce is a rational (and commonly utilized) means of regulating commerce in that product.
Justice Scalia concurred, offering a somewhat more textual grounding for the same result. According to Justice Scalia, the key was that Congress's ban on even intrastate possession was "necessary" and "proper" as a way to regulate interstate commerce:
[T]he authority to enact laws necessary and proper for the regulation of interstate commerce is not limited to laws governing intrastate activities that substantially affect interstate commerce. 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.
Scalia continued:
That simple possession is a noneconomic activity is immaterial to whether it can be prohibited as a necessary part of a larger regulation. Rather, Congress’s authority to enact all of these prohibitions of intrastate controlled-substance activities depends only upon whether they are appropriate means of achieving the legitimate end of eradicating Schedule I substances from interstate commerce.
  By this measure, I think the regulation must be sustained. Not only is it impossible to distinguish “controlled substances manufactured and distributed intrastate” from controlled substances manufactured and distributed interstate,” but it hardly makes sense to speak in such terms. Drugs like marijuana are fungible commodities. As the Court explains, marijuana that is grown at home and possessed for personal use is never more than an instant from the interstate market— . . . .
Justice O'Connor wrote the primary dissent, joined by the Chief Justice and Justice Thomas. O'Connor's dissent is pretty heavy on the policy arguments — she clearly wants the states to regulate this stuff, not the federal government — and relatively light on legal reasoning. Much of the argument comes in the form of a slippery slope; if we allow this, then Lopez and Morrison will be gutted. O'Connor suggests that this is as much about spheres of state sovereignty as the technical question of the scope of interstate commerce
Whatever the specific theory of “substantial effects” at issue (i.e., whether the activity substantially affects interstate commerce, whether its regulation is necessary to an interstate regulatory scheme, or both), a concern for dual sovereignty requires that Congress’ excursion into the traditional domain of States be justified. That is why characterizing this as a case about the Necessary and Proper Clause does not change the analysis significantly. Congress must exercise its authority under the Necessary and Proper Clause in a manner consistent with basic constitutional principles.
. . . [T]hat authority must be used in a manner consistent with the notion of enumerated powers— — a structural principle that is as much part of the Constitution as the Tenth Amendment’s explicit textual command. Accordingly, something more than mere assertion is required when Congress purports to have power over local activity whose connection to an intrastate market is not selfevident.
She concludes:
  Relying on Congress'’ abstract assertions, the Court has endorsed making it a federal crime to grow small amounts of marijuana in one’s own home for one'’s own medicinal
use. This overreaching stifles an express choice by some States, concerned for the lives and liberties of their people, to regulate medical marijuana differently. If I were a California citizen, I would not have voted for the medical marijuana ballot initiative; if I were a California legislator I would not have supported the Compassionate Use Act. But whatever the wisdom of California'’s experiment with medical marijuana, the federalism principles that have driven our Commerce Clause cases require that room for experiment be protected in this case. For these reasons I dissent.
Finally, Justice Thomas filed a solo dissent that cites no fewer than three different Randy Barnett articles (not a bad way to lessen the sting of defeat, I suppose), and argues that the ban on intrastate possession is neither a regulation of interstate commerce, necessary nor proper to effectuate such a ban. From the dissent:
[I]n order to be "“necessary,"” the intrastate ban must be more than “a "reasonable means [of] effectuat[ing] the regulation of interstate commerce.”" Brief for Petitioners 14; see ante, at 19 (majority opinion) (employing rational-basis review). It must be “plainly adapted” to regulating interstate marijuana trafficking— — in other words, there must be an “obvious, simple, and direct relation” between the intrastate ban and the regulation of interstate commerce.
He continued:
[N]either in enacting the CSA nor in defending its application to respondents has the Government offered any obvious reason why banning medical marijuana use is necessary to stem the tide of interstate drug trafficking. Congress'’ goal of curtailing the interstate drug trade would not plainly be thwarted if it could not apply the CSA to patients like Monson and Raich. That is, unless Congress’ aim is really to exercise police power of the sort reserved to the States in order to eliminate even the intrastate possession and use of marijuana.
  Why did the Raich case take so long to hand down? This is sheer speculation, but the most likely explanation to me is that it probably took awhile for Justice Stevens to secure a majority opinion. Stevens assigned the case to himself and probably had the 6 votes to uphold the statute at the outset, but he needed to get four other Justices to sign on to his opinion to make a majority. Getting three Justices to sign on was probably easy; Souter, Breyer, and Ginsburg have views on these issues pretty similar to Stevens'. The trick probably was getting the fourth vote. In the end, Scalia decided to break off and write separately, but Kennedy agreed to join the Stevens opinion. My guess is that the delay was caused by the time it took for those votes to settle. As I said, though, this is just a guess. (Another explanation may just be that four opinions were filed in the case, none of them short, and perhaps it just took awhile for everyone to finish.)
Larry Solum Summarizes the Medical Marijuana Case (Raich)

here.

Thoughts on Ashcroft (Gonzalez) v. Raich:

Despite my blogging hiatus, I cannot resist making a few quick comments about Raich.

(1) The five-member majority of the Court simply does not take federalism seriously. Justice Stevens writes that Congressional factual findings are required when there is a "special concern such as the protection of free of speech." Apparently, however, the Constitution's limitations on federal power--critical by any measure to the American system of government--are not a "special concern," or even especially important.

(2) Justice Scalia's concurrence, unlike Justice Thomas's dissent, does not address the original meaning of the Commerce Clause. This reflects a pattern with Scalia, apparent also in his affirmative action, First Amendment, and other opinions: he is much more likely to resort to originalist arguments when they can be used to undermine Warren Court precedents that conflict with his deeply held moral and political views than when such arguments would either undermine his political views or challenge precedents that are not on the social conservative (tempered, as in First Amendment cases, by Scalia's academic elitist solicitude (which I share) for freedom of expression) "hit list."

(3) I predicted the outcome of this case (and think it's remarkable and a testament to his talents that co-blogger Randy got Rehnquist and O'Connor to vote in favor of his clients) on the theory that wavering Justices such as Kennedy, who voted with the majority, would be affected by political trends apparent in the United States. When Kennedy voted with the majority in Lopez, congressional Republicans were making serious (albeit hamhanded) efforts to limit the federal government, and their rhetoric was even more strongly devolutionary. A decade later, the Republican Congress is vying with the Democratic Congresses of the 1930's and 1960's as the biggest supporter of increased federal power in American history. Scalia's vote was also likely affected by the sense that the Court should not expend political capital, especially with new Republican nominees soon to be voted on, on trying to limit federal power without any support from the political branches.

(4) There are essentially two strategies for those who are concerned with civil liberties for limiting the government's ability to abuse the rights of the public. One is the standard ACLU strategy of being a liberal supporter of broad government power, and then insisting that the government respect individual rights, especially constitutional rights, when using that power. The other strategy, followed by libertarians, is to try to limit the government's general power to begin with because the government cannot abuse power it does not have. The drug war provides a least one example of the superiority of the libertarian strategy. The drug war has run roughshod over the civil libertarian accomplishments of the Warren Court, leading to a weakening to various degrees of the First, Second, Fourth, Fifth, Sixth, and Eighth amendments, not to mention a huge increase in the prison population, and the denial of the basic right to use relatively innocuous recreational drugs, even for medicinal or health purposes. Far better to have denied the federal government the power to regulate intrastate use of and sale of drugs to begin with, as, I recall, Justice Van Devanter advocated on Commerce Clause grounds way back in the "dark ages" of the 1920's.

(5) I was both amused and angered by Justice Stevens's paean to the democratic process as the appropriate avenue of relief for advocates of medical marijuana at the end of his opinion. Every Justice who joined Stevens's opinion voted to prohibit states from regulating homosexual sex in Lawrence and [if they were on the Court at the time] voted to limit the government's power to regulate abortion in Casey. Why was the democratic process not the appropriate avenue of relief for the victims of overzealous government regulation in those cases? It seems we do to some extent live under a system where the personal preferences of the Justices, having nothing to do with the history, text, or logic of the Constitution, dictate when the Supreme Court will or will not intervene to overturn particular regulations.

Raich as Constitutional Law Doctrine: There's lots to say about the Raich opinion, but let me start with a tentative thought: Whatever normative views you have about the proper scope of the Commerce Clause, or of the merits of medical marijuana as policy, isn't the opinion by Justice Stevens relatively unremarkable as an application of existing constitutional law doctrine? At least based on my initial read, the majority opinion doesn't seem to break much new ground. It accepts the preexisting doctrinal framework for interpreting the Commerce Clause, and it reasons by analogy to Wickard and distinguishes Lopez and Morrison. Every majority opinion adds a new data point, of course, but this data point seems less surprising and new than many others. Indeed, my initial sense is that the most interesting parts of Raich are the concurring and dissenting opinions rather than the majority opinion. Any thoughts?

  (Cross-posted at SCOTUSblog; to leave a comment, please do so here.)
Many Thanks to Friends and VC Readers: I want to thank all my friends from around the country, and Volokh Conspiracy readers, for their many emails expressing support and words of encouragement to me following the Supreme Court's disappointing decision on Monday in Gonzales v. Raich. I have also taken solace in the outpouring of disapproval for the Court's decision from every ideological quarter of the blogosphere.

As you can imagine, after investing over two years litigating this case in the District Court and Court of Appeasls, and almost the entirety of my fall semester preparing for three moot courts and oral argument, Monday was a pretty tough day. All these expressions of support, which I have yet to individually acknowledge, really did help--as did the clarity and potency of the dissenting opinions by Justices O'Connor and Thomas. I was grateful as well that Chief Justice Rehnquist, the author of the opinions in Lopez and Morrison on which our arguments were based, completely endorsed our reading of those cases by joining Justice O'Connor's cogent opinion that adopted our arguments in their entirety. This was not what experienced court watchers expected from him. Perhaps it is worth noting that the three justices who did not ask me any questions in oral argument ultimately sided with us.

When the decision came down, I was in the middle of six hours of lectures on Contracts at NYU for LawPReview. I used my hour for lunch to skim the opinion and participate in a telephonic press conference with 50 reporters. Then I had to return to the classroom to teach contract law. The students were very understanding of the fact that I was probably not quite the same teacher as I had been for the first 2 hours of the day. After that, I faced a several hour delay returning to Boston due to thunderstorms at LaGuardia. My parents arrived from out of town to visit hours before my return to Boston, so I am now preoccupied with spending time with them.

For all these reasons, I have been too drained and distracted to blog on the decision, and it continues to be difficult to write about it dispassionately. Today, however, I did manage to pen some brief comments that I expect will appear on National Review Online tomorrow. When they do, I will link to them here and, perhaps, add some additional thoughts. In the meantime, thanks to everyone who wrote to me or who blogged their support. It really meant a lot.
Ninth Circuit Reverses Supreme Court! My column on Gonzales v. Raich, The Ninth Circuit’s Revenge, is now up on National Review Online. Here is how it begins:
The Ninth Circuit finally got its revenge on the Supreme Court justices who seemed to delight in reversing it. In Gonzales v. Raich, it gave the conservatives a choice: Uphold the Ninth Circuit's ruling favoring individuals engaged in the wholly intrastate non-economic activity of growing and consuming cannabis for medical purposes as recommended by a doctor and permitted by state law, or retreat from the landmark Commerce Clause decisions of U.S. v. Lopez (1995) and U.S. v. Morrison (2000). Either way the Ninth Circuit wins. But with Justices Kennedy and Scalia on the liberal side of the Court, the Ninth Circuit won big. So did Judge Stephen Reinhardt, who first implemented this strategy in the child-porn case of U.S. v. McCoy.

Of course, my clients and I were betting the other way. Either all five federalist justices would hold to their principles, or a few of the more liberal justices might decide to follow the "precedents" of Lopez and Morrison and make an exception to their principled stance in favor of federal power out of concern for the tens of thousands of suffering patents who acted through the democratic processes of their states to enact compassionate use acts. It was not to be.

I credit the four Lopez and Morrison dissenters with putting their vision of the Constitution above precedent. I agree that unconstitutional precedent should not be followed (see my take on precedent here). I credit even more the three dissenters. . . .
Raich does nicely illustrate why originalists need not be too bothered with the charge that they would reverse "precedent." The four dissenters in Lopez continued to dissent five years later in Morrison and maintained their opposition to Lopez even ten years later in Raich. During oral argument I confronted the same arguments made by Justices Souter and Breyer in their Lopez and Morrison dissents long after they had been rejected the Court.

What about the "precedent" of Wickard v. Filburn so stressed by the Court in Raich? I won't rehash all the ways that, as we argued, Wickard was distinguishable. For on thing, even the New Deal Congress did not attempt to reach backyard gardens; the Agricultural Adjustment Act even exempted small commercial(!) farms. Nor does the rationale that was used to justify reaching Roscoe Filburn's wheat apply to Angel or Diane. Justice O'Connor explains all this in her dissent. The only justices who purported to be compelled to follow the precedent of Wickard were those who, for whatever reason, wanted to reach the result they did. Following Wickard was simply a means to that end. We asked the Court to reverse Wickard if it thought it was a barrier to ruling for us (this was included especially for Justice Thomas who won't reconsider precedent unless specifically asked) but we honestly did not think that reversing Wickard was at all necessary.

To insist that originalists must follow precedent when no one else does (when they don't want to) is less than compelling. Especially when there is good reason to conclude that no precedent should stand in the way of correcting a mistaken interpretation of the Constitution. Like many others, I think Wickard was wrongly decided. The fact that it is a precedent should provide no barrier to its reversal. But, as I said in my oral argument, Gonzales v. Raich now replaces Wickard v. Filburn "as the most far reaching example of Commerce Clause authority over intrastate activity" ever decided by the Supreme Court. For this reason, it will be studied by generations of Con Law students until the day it is finally reversed in favor of the correct reading of the Commerce Clause and Necessary and Proper Clause.
Justice Kennedy's Vote in Raich: In his National Review piece on Raich, co-blogger Randy suggests that Justice Kennedy's vote in the case was inexplicable:
  Veteran Supreme Court reporter Lyle Dennison has suggested that Justice Kennedy [voted to reverse in Raich because he] has a zero-tolerance approach to drugs. Justice Kennedy's deportment during oral argument supports that theory, but we will never know because he joined the majority opinion without comment. . . . How [Kennedy] reconciles his expressed support for the traditional law-enforcement role of the states with his joining what can only be described as the opposite view expressed by Justice Stevens only he can say. But he chose not to.
  But is Kennedy's vote in Raich really such a mystery? Justice Kennedy broadcast a decade ago in his Lopez concurrence that while he valued federalism, and he was going to enforce federalism values in a number of contexts, he was not going to favor any positions that upset the basic settled view of the scope of the Commerce Clause:
[T]he Court as an institution and the legal system as a whole have an immense stake in the stability of our Commerce Clause jurisprudence as it has evolved to this point. Stare decisis operates with great force in counseling us not to call in question the essential principles now in place respecting the congressional power to regulate transactions of a commercial nature. That fundamental restraint on our power forecloses us from reverting to an understanding of commerce that would serve only an 18th century economy, dependent then upon production and trading practices that had changed but little over the preceding centuries; it also mandates against returning to the time when congressional authority to regulate undoubted commercial activities was limited by a judicial determination that those matters had an insufficient connection to an interstate system.
  I realize that Randy believes his argument in Raich successfully distinguished Wickard v. Filburn, such that it was possible to rule in his favor without overruling any cases. But the relevant question is not whether Raich can be distinguished from Wickard on its facts; the question is whether Randy's argument in Raich could comfortably coexist with the settled broad understanding of the Commerce Clause that Wickard helped cement. On the latter question, I think the answer is plainly no. The Raich case asked the Court and Justice Kennedy to shift the settled understanding of post-Wickard Commerce Clause doctrine in a very real and important way. Justice Kennedy indicated in 1995 that he was going to decline such an invitation, and that's exactly what he did a decade later in Raich.
Scalia's Vote In Raich: I've read lots of speculation in the blogosphere that Justice Scalia voted in the government's favor in Gonzales v. Raich because he's a social conservative who wants the government to crack down on drugs. If that's true, though, why did he vote in favor of the marijuana grower in Kyllo v. United States? And why did he vote in favor of the crack dealer in United States v. Booker? Is the idea that Scalia is principled when he votes in favor of defendants, but is just a social conservative when he votes in favor of the government?
The Silence of Justice Kennedy: In my earlier post, I failed to link to my NRO article, The Ninth Circuit's Revenge. I have now done so below, and also here.

As for Orin's defense of Justice Kennedy, there is very much that could be said, but I will limit myself to the following. Justice Steven's opinion is a sweeping limitation of Lopez and Morrison. So saith Justice O'Connor and, by joining her opinion, the author of Lopez and Morrison, Chief Justice Rehnquist. Justice Kennedy had the means available to him of concurring in the result while explaining how the outcome in this case was consistent with his concurring opinions in Lopez and Morrison: He could have written a concurrence like Justice Scalia did. Had this been so easy a task as Orin believes, I would have expected him to have done so. But I think this would have been hard for him and his silence is circumstantial evidence I am correct.

Orin says that Raich would not "could comfortably coexist with the settled broad understanding of the Commerce Clause that Wickard helped cement." But by limiting the substantial effects/aggregation principles of Wickard to intrastate economic activity, Lopez and Morrison subtly undermined that "settled" understanding, which is why these cases have been so much discussed. Justice Kennedy's concurring opinions added an "external" rationale for checking federal power based on a respect for the traditional law enforcement function of states. By his silence, Justice Kennedy failed to explain why this rationale does not apply with even greater force in Raich than it did in Lopez or Morrison (as we argued in our briefs).

Justice Kennedy's concurring opinion in Lopez quoted by Orin is completely consistent with Chief Justice Rehnquist's interpretation of Wickard (and ours in Raich):
. . . it also mandates against returning to the time when congressional authority to regulate undoubted commercial activities was limited by a judicial determination that those matters had an insufficient connection to an interstate system.
Here there are NO commercial activities of any kind involved, along with ZERO connection to an interstate market.

It is not just the facts of Wickard that differ from Raich. It is every aspect of the case, including the scope of the statute in question, the nature of the economic activity involved, and the rationale of the Court for why it is within the power of Congress to reach this intrastate activity. There is only one respect in which Wickard resembles Raich: the way Wickard has been (mis)taught over the years by law professors. For years Wickard was mistakenly taught as though it authorized Congress to reach any activity that serves as a substitute for a market activity. Justice Steven's opinion in Raich now appears to adopt that misinterpretation of Wickard as law.

It is generous of Orin to defend Justice Kennedy, but Justice Kennedy should have been capable of explaining himself in a concurring opinion. My original point was that, for whatever reason, he chose not to.