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.
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