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Thomas v. Scalia in GONZALES v. RAICH et al.
FindLaw ^ | 6/6/05

Posted on 06/06/2005 2:09:50 PM PDT by P_A_I

ALBERTO R. GONZALES, ATTORNEY GENERAL, et al., PETITIONERS v. ANGEL McCLARY RAICH et al.

Justice Scalia, concurring in the judgment.

     I agree with the Court's holding that the Controlled Substances Act (CSA) may validly be applied to respondents' cultivation, distribution, and possession of marijuana for personal, medicinal use. I write separately because my understanding of the doctrinal foundation on which that holding rests is, if not inconsistent with that of the Court, at least more nuanced.

As Chief Justice Marshall wrote in McCulloch v. Maryland, even when the end is constitutional and legitimate, the means must be "appropriate" and "plainly adapted" to that end. Moreover, they may not be otherwise "prohibited" and must be "consistent with the letter and spirit of the constitution." These phrases are not merely hortatory. For example, cases such as Printz v. United States, (1997), and New York v. United States, (1992), affirm that a law is not " 'proper for carrying into Execution the Commerce Clause' " "when [it] violates [a constitutional] principle of state sovereignty."

     The application of these principles to the case before us is straightforward. In the CSA, Congress has undertaken to extinguish the interstate market in Schedule I controlled substances, including marijuana.

The Commerce Clause unquestionably permits this. The power to regulate interstate commerce "extends not only to those regulations which aid, foster and protect the commerce, but embraces those which prohibit it." To effectuate its objective, Congress has prohibited almost all intrastate activities related to Schedule I substances--both economic activities (manufacture, distribution, possession with the intent to distribute) and noneconomic activities. 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.

________________________________________________________

ALBERTO R. GONZALES, ATTORNEY GENERAL, et al., PETITIONERS v. ANGEL McCLARY RAICH et al.

. Justice Thomas dissenting:

---     More difficult, however, is whether the CSA is a valid exercise of Congress' power to enact laws that are "necessary and proper for carrying into Execution" its power to regulate interstate commerce.

The Necessary and Proper Clause is not a warrant to Congress to enact any law that bears some conceivable connection to the exercise of an enumerated power. Nor is it, however, a command to Congress to enact only laws that are absolutely indispensable to the exercise of an enumerated power.

     In McCulloch v. Maryland, (1819), this Court, speaking through Chief Justice Marshall, set forth a test for determining when an Act of Congress is permissible under the Necessary and Proper Clause:

"Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional."

To act under the Necessary and Proper Clause, then, Congress must select a means that is "appropriate" and "plainly adapted" to executing an enumerated power; the means cannot be otherwise "prohibited" by the Constitution; and the means cannot be inconsistent with "the letter and spirit of the Constitution."

The CSA, as applied to respondents' conduct, is not a valid exercise of Congress' power under the Necessary and Proper Clause.

     Congress has exercised its power over interstate commerce to criminalize trafficking in marijuana across state lines. The Government contends that banning Monson and Raich's intrastate drug activity is "necessary and proper for carrying into Execution" its regulation of interstate drug trafficking. However, in order to be "necessary," the intrastate ban must be more than "a reasonable means [of] effectuat[ing] the regulation of interstate commerce." 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.

     On its face, a ban on the intrastate cultivation, possession and distribution of marijuana may be plainly adapted to stopping the interstate flow of marijuana. Unregulated local growers and users could swell both the supply and the demand sides of the interstate marijuana market, making the market more difficult to regulate. But respondents do not challenge the CSA on its face. Instead, they challenge it as applied to their conduct. The question is thus whether the intrastate ban is "necessary and proper" as applied to medical marijuana users like respondents.


TOPICS: Constitution/Conservatism
KEYWORDS: judiciary; scalia; scotus; thomas; wodlist
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Thomas:

     In McCulloch v. Maryland, (1819), this Court, speaking through Chief Justice Marshall, set forth a test for determining when an Act of Congress is permissible under the Necessary and Proper Clause:

"Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional."

To act under the Necessary and Proper Clause, then, Congress must select a means that is "appropriate" and "plainly adapted" to executing an enumerated power; the means cannot be otherwise "prohibited" by the Constitution; and the means cannot be inconsistent with "the letter and spirit of the Constitution."

The CSA, as applied to respondents' conduct, is not a valid exercise of Congress' power under the Necessary and Proper Clause.

_______________________________________________________

Scalia:

As Chief Justice Marshall wrote in McCulloch v. Maryland, even when the end is constitutional and legitimate, the means must be "appropriate" and "plainly adapted" to that end. Moreover, they may not be otherwise "prohibited" and must be "consistent with the letter and spirit of the constitution." These phrases are not merely hortatory. For example, cases such as Printz v. United States, (1997), and New York v. United States, (1992), affirm that a law is not " 'proper for carrying into Execution the Commerce Clause' " "when [it] violates [a constitutional] principle of state sovereignty."

     The application of these principles to the case before us is straightforward. In the CSA, Congress has undertaken to extinguish the interstate market in Schedule I controlled substances, including marijuana.

The Commerce Clause unquestionably permits this.

_______________________________________________________

Here we see two 'conservatives' quoting the same decision and arriving at opposite conclusions.

I can only conclude that Scalia is not quite the conservative he claims to be.

1 posted on 06/06/2005 2:09:50 PM PDT by P_A_I
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To: P_A_I
I can only conclude that Scalia is not quite the conservative he claims to be.

Safe bet in this instance, since it's Scalia who's joining the liberal wing of the Court..

2 posted on 06/06/2005 2:15:25 PM PDT by AntiGuv (™)
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To: P_A_I

Instead of saying what the law says I will make it say what I want.


3 posted on 06/06/2005 2:16:00 PM PDT by handy old one (It is unbecoming for young men to utter maxims. Aristotle)
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To: P_A_I
President (and pricipal author of the Constutition) James Madison:
"The legislative powers vested in Congress are specified and enumerated in the eighth section of the first article of the Constitution, and it does not appear that the power proposed to be exercised by the bill is among the enumerated powers, or that it falls by any just interpretation with the power to make laws necessary and proper for carrying into execution those or other powers vested by the Constitution in the Government of the United States.

"The power to regulate commerce among the several States" can not include a power to construct roads and canals, and to improve the navigation of water courses in order to facilitate, promote, and secure such commerce with a latitude of construction departing from the ordinary import of the terms strengthened by the known inconveniences which doubtless led to the grant of this remedial power to Congress.

To refer the power in question to the clause "to provide for common defense and general welfare" would be contrary to the established and consistent rules of interpretation, as rendering the special and careful enumeration of powers which follow the clause nugatory and improper. Such a view of the Constitution would have the effect of giving to Congress a general power of legislation instead of the defined and limited one hitherto understood to belong to them, the terms "common defense and general welfare" embracing every object and act within the purview of a legislative trust. It would have the effect of subjecting both the Constitution and laws of the several States in all cases not specifically exempted to be superseded by laws of Congress, it being expressly declared "that the Constitution of the United States and laws made in pursuance thereof shall be the supreme law of the land, and the judges of every state shall be bound thereby, anything in the constitution or laws of any State to the contrary notwithstanding." Such a view of the Constitution, finally, would have the effect of excluding the judicial authority of the United States from its participation in guarding the boundary between the legislative powers of the General and the State Governments, inasmuch as questions relating to the general welfare, being questions of policy and expediency, are unsusceptible of judicial cognizance and decision."


4 posted on 06/06/2005 2:18:55 PM PDT by sourcery ("Compelling State Interest" is the refuge of judicial activist traitors against the Constitution)
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To: P_A_I
I can only conclude that Scalia is not quite the conservative he claims to be.

Or, alternately, you could conclude that the job of a judge can be extremely difficult.

5 posted on 06/06/2005 2:19:17 PM PDT by SedVictaCatoni (<><)
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To: P_A_I

If you don't like the law, work to overturn it.


6 posted on 06/06/2005 2:19:38 PM PDT by The Ghost of FReepers Past (Legislatures are so outdated. If you want real political victory, take your issue to court.)
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To: sourcery



If Congress can employ money indefinitely to the general welfare, and are the sole and supreme judges of the general welfare, they may take the care of religion into their own hands; they may appoint teachers in every State, county and parish and pay them out of their public treasury; they may take into their own hands the education of children, establishing in like manner schools throughout the Union; they may assume the provision of the poor; they may undertake the regulation of all roads other than post-roads; in short, every thing, from the highest object of state legislation down to the most minute object of police, would be thrown under the power of Congress. Were the power of Congress to be established in the latitude contended for, it would subvert the very foundations, and transmute the very nature of the limited Government established by the people of America.
-James Madison


7 posted on 06/06/2005 2:21:01 PM PDT by traviskicks (http://www.neoperspectives.com/charterschoolsexplained.htm)
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To: P_A_I
I can only conclude that Scalia is not quite the conservative he claims to be.

On the contrary, I think he's exactly as conservative as he claims to be, which is in fact less conservative than Thomas. For example, Thomas is supposedly more willing to ignore the tradition of stare decisis than Scalia is; which in English, means that Scalia places more emphasis on respecting prior court decisions, even when they violate his own conservative principles. Thomas is more willing to overturn past wrong decisions.

8 posted on 06/06/2005 2:23:04 PM PDT by mcg1969
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To: AntiGuv

I like to bet on sure things.


9 posted on 06/06/2005 2:24:50 PM PDT by P_A_I
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To: P_A_I
IMO, Thomas is a far better Justice, not necessarily because he is politically more conservative but rather because Scalia has taken the position that if, on any one issue, what is “settled law” (i.e. prior fraudulent "interpretations" of the Constitution by leftist courts) conflicts with what he believes the Constitution actually says...Scalia favors the “settled law” position.

Scalia was recently quoted as saying that Justice Thomas "doesn't believe in stare decisis (i.e. being bound by prior decisions), period." Clarifying his remark, Scalia added that "if a constitutional line of authority is wrong, he (Justice Thomas) would say let's get it right. I wouldn't do that."

My response to Justice Scalia is...why not? If Justice Brennan said one thing in 1980 and you believe that the actual Constitution says something else...why would you apply Justice Brennan's opinion?

We need more Clarence Thomas' on this Court...he has expressed a willingness to revisit the many illegitimate lines of law imposed upon us by the Court...from the Commerce Clause to Establishment Clause cases (Thomas correctly notes that it applies only to Congress not the states...to which his enemies respond that, "while he may be "historically correct", we can't go back and undo the (Supreme Court-created) law on this...its now settled") to Substantive Due Process

Justice Thomas is the leftists's worst nightmare...a judge that will actually undo all of their illegitimate rewriting of the Constitution

10 posted on 06/06/2005 2:24:52 PM PDT by Irontank (Every decent man is ashamed of the government he lives under)
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To: AntiGuv
As best I can tell.....

The Constitution allows the Congress to regulate interstate commerce (but NOT intrastate commerce), so Congress says, "Fine, in order to regulate interstate commerce, we must regulate intrastate commerce."

.....and the SC says, "OK....fine then."

11 posted on 06/06/2005 2:25:02 PM PDT by Onelifetogive (* Sarcasm tag ALWAYS required. For some FReepers, sarcasm can NEVER be obvious enough.)
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To: handy old one

Agreed.. Scalia is a past master at that.


12 posted on 06/06/2005 2:26:15 PM PDT by P_A_I
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To: P_A_I
I can only conclude that Scalia is not quite the conservative he claims to be.

He claims?

13 posted on 06/06/2005 2:29:28 PM PDT by 1rudeboy
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To: The Ghost of FReepers Past
If you don't like the law, work to overturn it

ROFL!
The voters spoke. The Bush administration said "take your votes and shove 'em". The voters took the Bush administration to federal court. The federal court said the voters had the right to change the law. The Bush administration said "take your court and shove it". The voters appealed to the USSC. The USSC said "take your votes and your constitutional rights and shove 'em!"
...
14 posted on 06/06/2005 2:31:18 PM PDT by mugs99
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To: P_A_I

Can you cite to a "past" instance of Justice Scalia doing what you claim he is "master" at?


15 posted on 06/06/2005 2:32:02 PM PDT by 1rudeboy
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To: Irontank
I think the issue of "activism" comes into play when stare decisis is ignored. The conservative aversion to activism has its roots in the reliability of settled law...Order if you will. And Order is partly due to the citizens ability to rely upon what the law will be in the future; the freedom from arbitrary change.

I would love to here what Sowell thinks about this specific difference between the two.

16 posted on 06/06/2005 2:32:26 PM PDT by KC Burke (Men of intemperate minds can never be free....)
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To: P_A_I
When it comes to drugs, a lot of conservatives sell out; witness the folks in the other thread who are cheering the decision despite the fact that it totally stomps all over states' rights.

I guess Scalia falls into this category; when it comes to guns in schools and rapes on college campuses, we don't want to second-guess the states--but drugs? oh dear Lord, don't you know what a scourge on society they are? Let's give Uncle Sam a free hand to stomp out such a blight on society...
17 posted on 06/06/2005 2:33:53 PM PDT by Publius Valerius
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To: SedVictaCatoni
I can only conclude that Scalia is not quite the conservative he claims to be.

Or, alternately, you could conclude that the job of a judge can be extremely difficult.

You can, but I sure don't see it that way.
Their clerks do all of the grunt work, -- and probably most of the writing. [and a bit of the reasoning too, I suspect, seeing how bad some of the 'logic' reads.]

18 posted on 06/06/2005 2:34:44 PM PDT by P_A_I
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To: mcg1969
For example, Thomas is supposedly more willing to ignore the tradition of stare decisis than Scalia is; which in English, means that Scalia places more emphasis on respecting prior court decisions, even when they violate his own conservative principles

English law was common law. For those unfamiliar with the term, common law is court-made law. Most American law is common law....it develops through court decisions, each case building on the last by incorporating rules set out in prior decisions. It is in this context that stare decisis developed and becomes necessary to the development of the law. It allows the law to develop and gives it predictability...so people know what the law is

By contrast, continental Europe has more codified law...law that is set out in codes rather than developed through court decisions.

The US Constitution is like a legal code. You don't need stare decisis in most areas of Constitutional law. Where the ruling from a prior court decision conflicts with the written Constitution, the written Constitution must take precedence.

Scalia used to recognize and acknowledge this...now he readily acknowleges that he will follow bad lines of law simply because a prior Court issued it...that I do not understand. Yes, Scalia is willing to follow stare decisis even when doing so violates his own conservative principles (which is right)...apparently also when doing so violates the terms of the Constitution (which is most definitely not right)

19 posted on 06/06/2005 2:36:01 PM PDT by Irontank (Every decent man is ashamed of the government he lives under)
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To: The Ghost of FReepers Past

I's worken boss... How bout you?


20 posted on 06/06/2005 2:36:17 PM PDT by P_A_I
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