Gonzales v. Raich: Supreme Court rules on Commerce Clause
The Supreme Court ruled today in Gonzales v. Raich, against taking a somewhat narrower (and to my mind, entirely proper) view of the Commerce Clause. The vote was 6-3, holding that it was permissible for federal drug regulations to override California's state law allowing medicinal marihuana, even as applied to patients who grew and consumed their own pot.
UPDATE: Prof. Orin Kerr, at the Volokh Conspiracy, weighs in with an interesting insight. Look upon the Court as nine individuals. Four essentially believe that the Court should stay out of federalism-type issues and believe in a "sky is the limit" reading of the Commerce Clause.
Now, that should mean they lose 5-4 every time. But the other five are somewhat divided. Rehnquist is willing to narrow the commerce clause. O'Connor is focused upon protecting the role of the State (thus likely to vote against a federal statute when it encroaches upon traditional State powers, as opposed to opposing it purely because it seems to exceed federal power). Scalia centers upon textualism (which often, but not always, means a narrow commerce power), Thomas on originalism (which equates to a narrow view of the commerce power). Kennedy, so often the swing vote, is like O'Connor interested in protecting the states, and like Rehnquist in preventing excessive federal power, but is not so sensitive as either of the others.
So in this case the theoretical majority loses Kennedy, who isn't quite willing to go that far, and Scalia, who concurs, mostly in criticism of the dissent. (This might reinforce yet another human aspect of the Court: reportedly Scalia and O'Connor, who wrote the dissent, do not get along at all and rarely join in opinions -- even when they agree, one or the other will write a concurring opinion).
UPDATE This brings to mind a bit of a paradox. The Lopez case referred to the fact that the Gun Free Schoolzones Act only affected small areas (1000' around each school), and lower courts seized upon that to distinguish other laws regulating simple possession of firearms, finding that they did fit under the Commerce power. But isn't that rather like saying that "Congress doesn't have enough power to regulate narrow sets of activities, but does have enough to regulate broad sets of the same activities"? How can an entity have too little power for a small undertaking, yet sufficient power for a larger one?
The majority opinion distinquishes Lopez, which struck down the "Gun Free Schoolzones Act," on the basis that Lopez involved a law which did not regulate commerce (there's little economic about possessing a firearm within 1000 ft. of a school), whereas the federal drug laws relate to a large and quite profitable drug market. It declines to take the view ably argued by Randy Barnett (a second amendment scholar, BTW) that interstate commerce is not involved when a state law allows a person to grow something for personal use on his own property. That is, it assesses the connection with interstate commerce in terms of the entirity of a market, not in terms of the specific act being questioned. (Prof. Barnett's argument, as I understand it, was that the state law should justify a focus on the specific act allowed by it, distinguishing cases such as Wickard v. Filburn, in which a New Deal Court upheld federal crop regulations as applied to a farmer who ate his own produce or fed it to his livestock, on the theory that while he might not affect interstate commerce alone, the totality of farmers who did this would do so).
Scalia concurs in the result, mostly to criticize the dissent. O'Connor dissents, joined by Thomas and Rehnquist. They agree that the state law justifies a focus only upon conduct that it allows (medicinal growing and use) and "There is simply no evidence that homegrown medicinal marijuana users constitute, in the aggregate, a sizable enough class to have a discernable, let alone substantial, impact on the national illicit drug market–or otherwise to threaten the CSA regime."
Quirk: Thomas and the CJ do not join section III of her dissent, which is only two paras long. The first quotes Federalist 45, saying that Federal power is narrow and State power broad. The second says that, while she would not have voted for the California law, application of the federal law here stifles a choice that a State made in the interests of protecting its citizens' freedom.