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Stevens on Raich

By TChris, Section Constitution
Posted on Thu Aug 25, 2005 at 08:11:57 AM EST
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by TChris

The Supreme Court has struggled to develop a consistent Commerce Clause jurisprudence, balancing the federal legislature’s desire to enact sweeping regulation against the constitutional limits on federal power. Both the right and the left are dissatisfied with some of the Court’s Commerce Clause decisions, and Congress is irritated whenever the Court strikes down the legislation it enacts (as Arlen Specter recently made clear).

Speaking to the ABA, Justice Stevens admitted that he wasn’t happy with his vote to uphold federal regulation of pot growers who cultivate the plant for intrastate distribution as permitted by California's medical marijuana law. The Raich decision upheld the federal prohibition against a Commerce Clause challenge.

Justice Stevens said he also regretted having to rule in favor of the federal government's ability to enforce its narcotics laws and thus trump California's medical marijuana initiative. "I have no hesitation in telling you that I agree with the policy choice made by the millions of California voters," he said. But given the broader stakes for the power of Congress to regulate commerce, he added, "our duty to uphold the application of the federal statute was pellucidly clear."

The left generally believes that federal regulation of wages, hours, and child labor should apply to an employer that conducts no business beyond the boundaries of the state in which in it is situated. Some on the right believe Commerce Clause regulation of the terms and conditions of employment should not extend to businesses that never operate beyond the state’s borders.

Some on the left (and some on the right) supported the Gun-Free School Zones Act (making it a federal crime to possess a gun in a school zone) and the Violence Against Women Act (permitting a federal civil suit against perpetrators of gender-based violence). The Supreme Court retreated from its usually expansive view of the Commerce Clause by striking down those laws on the ground that they were insufficiently grounded in the regulation of interstate commerce.

Most on the left (and even some on the right) believe the federal government has no business criminalizing the growing and possession of marijuana for personal use or for intrastate distribution. As Justice Stevens points out, taking that stand in Raich may have undermined economic regulation of intrastate commerce.

Ideally, the Supreme Court would distinguish between economic regulation and criminal legislation, putting a halt to what has become the federalization of essentially local criminal activity while giving Congress greater latitude to regulate other aspects of the economic realm. That hasn’t happened and isn’t a likely outgrowth of the Court’s Commerce Clause precedent. Hence, Justice Stevens’ dilemma.

For now, the solution must be legislative. Congress should put an end to marijuana hysteria and recognize that states have a legitimate interest in permitting the medical use of pot. And while they’re at it, federal legislators should recognize that each new “crime of the week” doesn’t require federal prohibition. States are capable of enacting their own criminal laws; they rarely need a federal assist.

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    • Stevens on Raich | 15 comments (15 topical)
    Re: Stevens on Raich (none / 0) (#1)
    by swingvote on Sat Dec 17, 2005 at 01:02:43 PM EST
    But given the broader stakes for the power of Congress to regulate commerce, he added, "our duty to uphold the application of the federal statute was pellucidly clear. In other words, Stevens believes that it is necessary to grant the government leave when it oversteps its bounds to preserve its ability to perform the duties it is authorized to perform. I think it's time for another justice to step down, quickly, before he is "forced" to make any more decisions like this.

    Re: Stevens on Raich (none / 0) (#2)
    by roy on Sat Dec 17, 2005 at 01:02:43 PM EST
    So we should give Fedgov powers with poorly defined and ever-expanding limits, so long as those powers are used to pursue a liberal agenda? And just trust them not to abuse that power again? Even (reluctantly) setting aside left / right partisanship, the old "power corrupts" line applies. Giving the feds more and more power will lead to trouble down the road when some new legislative fad sweeps the nation.

    Re: Stevens on Raich (none / 0) (#3)
    by Quaker in a Basement on Sat Dec 17, 2005 at 01:02:43 PM EST
    In other words, Stevens believes that it is necessary to grant the government leave...
    So we should give Fedgov powers with poorly defined and ever-expanding limits, so long as those powers are used to pursue a liberal agenda?
    Projection is such an interesting phenomenon.

    Re: Stevens on Raich (none / 0) (#4)
    by swingvote on Sat Dec 17, 2005 at 01:02:43 PM EST
    Projection is such an interesting phenomenon. It certainly is, Quaker, and it's on display here at TalkLeft 24-7-365. So tell me, what do you in your bunker, er basement, believe he's saying if not just that?

    Re: Stevens on Raich (none / 0) (#5)
    by Talkleft Visitor on Sat Dec 17, 2005 at 01:02:43 PM EST
    In other words, Stevens believes that it is necessary to grant the government leave when it oversteps its bounds to preserve its ability to perform the duties it is authorized to perform.
    No, Roy. Stevens believes that not every bad law is unconstitutional. Is that distinction too complicated for you?

    Re: Stevens on Raich (none / 0) (#6)
    by pigwiggle on Sat Dec 17, 2005 at 01:02:43 PM EST
    “The Supreme Court has struggled … balancing the federal legislature’s desire to enact sweeping regulation against the constitutional limits on federal power.”
    This could be less generously worded; the Supreme Court has struggled to appear less accommodating in broadening federal legislative powers beyond those enumerated. There is no ‘balance’, either congress has the power or it doesn’t, desire aside.
    “Ideally, the Supreme Court would distinguish between economic regulation and criminal legislation”
    This would cripple the efficacy of the SEC. No?
    “The left generally believes that federal regulation of wages, hours, and child labor should apply to an employer that conducts no business beyond the boundaries of the state in which in it is situated.”
    Laws are useless when they are applied only when convenient.

    Re: Stevens on Raich (none / 0) (#7)
    by roy on Sat Dec 17, 2005 at 01:02:43 PM EST
    Rea,
    Stevens believes that not every bad law is unconstitutional. Is that distinction too complicated for you?
    It's more subtle than the distinction between "Roy" and "justpaul".

    Re: Stevens on Raich (none / 0) (#8)
    by jackl2400 on Sat Dec 17, 2005 at 01:02:44 PM EST
    Justice Stevens is really talking about the age old tensions between the legislative and the judiciary. He is saying that although Raich and the DEA interpretation of the Controlled Substances Act was unwise and repugnant to him in his personal opinion, and would not have endorsed it as a legislator, he is attempting to respect the legislative will. Congressmen are elected by the people, judges aren't. However, he felt complelled to find the law marginally constitutional under the Commerce Clause (too bad). This is the "judicial restraint" and lack of "judicial activism" which is widely praised and is part of the judicial culture and normally praised together with such virtues as temperance, respect for stare decisis (precedent), judicial demeanor and so forth. Justice Stevens' comments remind me of the many times that federal district court judges in particular "editorialize" and lament the draconian mandatory minimum or sentencing guideline drug sentences they are about to impose, often virtually apologizing to the defendants and saying in essence "this is not my choice, it's repugnant to me, but my hands are tied by Congress". However, Stevens in his candor has done us drug reformers a valuable service. The next time that Congressman Senselessbrenner or Souder or one of those jackals gets on a tear with "drug sentences too leinient", or drug czar Walters starts in with his reefer madness redux, we can throw this back in their faces. One more brick in the wall.

    Re: Stevens on Raich (none / 0) (#9)
    by SeeEmDee on Sat Dec 17, 2005 at 01:02:44 PM EST
    It should be noted that the morphing of the Commerce Clause to allow the kind of burgeoning of the Federal government which took place under FDR - which Justice Stevens was so afraid of damaging - had it's roots much earlier...with the Harrison Narcotics Act of 1914. It was then that the formerly 'strict' interpretation of the Constitution's Commerce Clause began to become plastic. Granted, the Civil War pretty much decided Federal dominance of the states, but it wasn't until the HNA that the previously slow erosion of State power became accelerated. I contend that in some future era, historians studying this one will conclude that one of the final nails pounded into the coffin of the American Experiment will be Raich/Monson, for it can be demonstrated that the Supremes chose the preservation of the central government at the expense of the indivdivual's rights - which supposedly were the basis for its' legitimacy. Like Dred Scott before it, it may presage a time when legitimacy of the central government itself is questioned - but for the opposite reasons that Dred Scott occured. Dred Scott preserved the powers of the states; Raich/Monson has preserved the power of the central government to the detriment of the states, and has in fact declared the states as de facto non-entitites by its' claim of being able to regulate intrastate commerce. As much as I dislike Justice Thomas on many points, I find myself in shocked agreement with him as to the fact that, with this ruling, truly, there is now nothing to slow down any future unwise Federal actions that negatively affect indivdual rights. This doesn't just affect a handful of people dismissed too often as as 'druggies'; this puts us all in the gunsights of an overweening Federal government now hostage to the resurrected winner-take-all 'spoils system' of modern American politcs. If you think things are ugly now, you ain't seen nothing, yet.

    Re: Stevens on Raich (none / 0) (#14)
    by Che's Lounge on Sat Dec 17, 2005 at 01:02:44 PM EST
    MJ being relegated to a commerce issue makes me feel that there must be some other economic agenda that keeps it out of the mainstream. could it be the MASSIVE market for MJ and related products and uses if the CA initiative cascaded to a national level? That has got to scare the pants off the country's regressive population.

    Re: Stevens on Raich (none / 0) (#10)
    by jackl2400 on Sat Dec 17, 2005 at 01:02:45 PM EST
    If you think things are ugly now, you ain't seen nothing, yet.
    Well, there's also reason for hope that we've seen the high water mark for creeping federal powers and that the dim judicial view of Justice Stevens that will someday be "heard in the halls of Congress", to use the majority's words from Raich. I certainly hope so, which, I guess are why folks like Sensenbrenner and Souder are in reformer's gunsights right now. I don't recall that I used to know or care what the House Judiciary Committee did. ;-)
    It should be noted that the morphing of the Commerce Clause to allow the kind of burgeoning of the Federal government which took place under FDR - which Justice Stevens was so afraid of damaging - had it's roots much earlier...with the Harrison Narcotics Act of 1914.
    That would make some sense, CMD, since the Harrison Act was directed at opium imported from China and Congress would clearly control commerce between the U.S. and FOREIGN nations under traditional constitutional theories. How Congress came to regulate INTRASTATE marijuana use via the 1970 Controlled Substances Act is another matter entirely, of course!

    Re: Stevens on Raich (none / 0) (#11)
    by Talkleft Visitor on Sat Dec 17, 2005 at 01:02:45 PM EST
    It's more subtle than the distinction between 'Roy' and 'justpaul'.
    [slapping self in head] Commentor's name is at the beginning, not the end, of the comment on this! site :O

    Re: Stevens on Raich (none / 0) (#12)
    by cpinva on Sat Dec 17, 2005 at 01:02:45 PM EST
    i'm shocked, shocked, that congress would be upset with the SC for overturning legislation! duhhhhhhhhh! wow, big surprise there. hasn't congress, and the president, been more or less ticked off at the SC since, oh, say about 1789? of course, this is exactly the situation envisioned by the authors of the constitution: three separate, equal branches of government, in constant tension with one another. the idea being to keep all 3 honest. i'd say it's worked remarkably well, all things considered. that someone is always upset with judges, as a result of a decision made, means they're doing their job. if everyone were happy, i'd be worried. judges are elected, either directly or indirectly. with respect to the SC, elected officials appoint them. presumably, those elected officials are accountable to the voters. though many judges at the federal level enjoy life tenure, they aren't completely protected by that veil, they can be impeached. though, not just because some legislator doesn't like one of their decisions. thank god for the founding dad's wisdom and foresight!

    Re: Stevens on Raich (none / 0) (#13)
    by cpinva on Sat Dec 17, 2005 at 01:02:45 PM EST
    sorry, put that apostrophe in the wrong place, that should have read: founding dads'.

    Re: Stevens on Raich (none / 0) (#15)
    by SeeEmDee on Sat Dec 17, 2005 at 01:02:49 PM EST
    I guess the point I was trying to make is that the supporters of Raich/Monson expected the Feds to acknowledge limitations on Fed powers...when those powers themselves were tied to an unConstitutional twisting of the Commerce Clause by interpreting it the way it has been for almsot a century. Demanding a return to strict adherence to the 'letter of the law' would have imperiled the entire Federal government's present foundation, opening the door to even greater whittling away of Fed suzerainty. Those Supremes who voted against R/M were well aware of this, and made it plain in their arguments, but not to the point of admitting that foundation was itself, by strict interpretation of the Constitution, illegal. It's analogous to starting with a one-room schoolhouse, and over time adding more and more rooms to it, then being told almost 7 decades later you now have to tear down 90% of the structure because you didn't have the right building permit. With R/M, pragmatism won out over legal entreaties to follow the letter of the law...and the hot potato, just as with Dred Scott, got pitched back to the legislative body. Which has been unduly influenced by that illegal Fed power, and continues to be so today. Just look at what happens whenever a medical marijuana legislative initiative or popular refendum begins to acquire traction; with flagrant violations of the Hatch Act the ONDCP sends it's dog-and-pony show out to state legisltures to politick against them, using Federal taxpayer's dollars to propagandize citizens in those states to vote against those initiatives. This is partly what results from broadly interpreting the Commerce Clause.

    Stevens on Raich | 15 comments (15 topical)