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Sad to say, Thomas and Rehnquist (and what's her name) are dead-on. The Commerce Clause is the issue, and it involves commerce AMONG THE STATE, not within a state. The Necessary and Proper Clause reference by Scalia, who is brilliant, seems misplaced to me. I fear it's a dangerous idea to say that once the federal government regulates, it's free to regulate to the bitter end because it's necessary and proper to do so to maintain is regulatory scheme.

But without the Commerce Clause, what would prevent a pharm. company from developing and selling a drug in their own state, bypassing the FDA?

I'm not asserting that this is such a bad thing, but I can't see any barrier to it.

holdonnow wrote:

The Necessary and Proper Clause reference by Scalia, who is brilliant, seems misplaced to me.

I fear it's a dangerous idea to say that once the federal government regulates, it's free to regulate to the bitter end because it's necessary and proper to do so to maintain is regulatory scheme.

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Scalia, above all, is a 'regulator', an authoritarian.

In the 1991 nude dancing case, Barnes v. Glen Theatre, Inc., the USSC held that "Public nudity was considered an act malum in se."

As Justice Antonin Scalia elaborated:

"Our society prohibits, and all human societies have prohibited, certain activities not because they harm others but because they are considered, in the traditional phrase, 'contra bonos mores,' i.e., immoral.
In American society, such prohibitions have included, for example, sadomasochism, cockfighting, bestiality, suicide, drug use, prostitution, and sodomy."

Which can be paraphrased as: -- 'Our society prohibits, and all human societies have prohibited, certain activities not because they harm others but because we want to control the behaviors of our peers, regardless of Constitutional law.'

-- His quoted comment above leads me to believe that if Scalia ever decides a 2nd amendment case, he will give lip service to our 'individual right', and then find some excuse to virtually regulate it out of existence.

-- The man is a dyed in the wool authoritarian, - a prohibitionist, - as proved by his own words.

"I fear it's a dangerous idea to say that once the federal government regulates, it's free to regulate to the bitter end"

Do you believe that the Founding Fathers intended that the states be allowed to undermine and subvert federal interstate regulatory efforts?