Monday, June 06, 2005

Gonzales v. Raich

Even though I am an attorney, I don't think I've ever blawged a case before. Today is no real exception as the following is more reactive than reasoned, but here goes.

The Supreme Court, in a 5+1-3 decision, has determined that growing pot in one's backyard for personal medical use "substantially affects interstate commerce" such that Congress may regulate the practice pursuant to the commerce clause of the United States Constitution. Justice Steven's majority opinion concludes that, insofar as Congress has the power to regulate, any change in the law must come from the democratic process.

Normally, I'm a big fan of judges leaving political decisions to the political branches of government, but there is a fundamental issue here that runs deeper -- the inherent power of Congress to reach into and regulate every aspect of life. The constitution gives Congress the authority to "regulate commerce . . . among the several states." Beginning with Wickard v. Filburn (or Gibbons v. Ogden, take your pick) and continuing throughout our national history, the Court has interpreted this power broadly -- very broadly. Then, in the late 80s and 90s it begin to reign in Congress. The most significant decision in this respect was the Lopez case, in which the Court, for the first time in ages, invalidated a federal statute on the basis that it exceeded the power conferred by the commerce clause (Article 1, section 8, clause 3). Specifically, it held that mere possession of a gun in a school zone had too tenuous a connection with interstate commerce to support a statute criminalizing such possession.

Today, the Court signaled that Lopez was an abberation and that it is not serious about subjecting the power of the federal government to any significant limitation. It's a damn shame, not only because I'm not adverse to sparking one up, but also because I don't want to live in a country where the federal government's power is every bit as large as its ability to cobble together silly connections with interstate commerce. Make no mistake, under the Court's jurisprudence, virtually everything substantially affects interstate commerce. Sad, but true.

Now, as for Stevens concluding that this was a decision best left to the legislature -- I'd have tons more respect for that position if he was serious about it. Stevens, however, has encountered precious few issues that he believes are fit for legislative determination. For the most part, he thinks he's wiser than elected officials. He only bothers to defer to them when it's a question of maintaining the federal government's ability to play nursemaid -- a role he and his ilk hold dear.

Much more commentary at Goldstein & Howe's SCOTUSblog and the VC. Some of it overlaps as Goldstein today invited several blawgers to blog Raich on his SCOTUSblog. If I get around to it, I may write a somewhat more, umm, reflective piece on Raich.