Thomas v. Scalia in GONZALES v. RAICH et al.

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

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.

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

--- 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.

But one state cannot defeat the drug law enforcement efforts of the rest of the country.

Those efforts are succeeding brilliantly. In any case, your statement turns the Constitution upside down. The rest of the country should not be able to influence the affairs of one state in this way. Nor was Congress intended to have a general police power of this kind. See Madison, quoted above.

Thomas is asking a broader question: should current federal laws on marijuana be repealed or modified? It's a legitimate question, but by going against precedent we must note that it is Thomas, not Scalia, who has taken the "activist judge" stance in this case.

Now wait just a darn minute here. The Raich decision relied on Wickard, which itself was judicial activism. The reason that the original regulations on guns and drugs at the federal level were written as taxes was because it was generally understood at the time that the commerce clause did NOT confer a police power.

Wickard overturned that understanding, in an act of what can only be described as judicial activism. Thomas, in proposing to correct that mistake, is not the activist here.

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

There are other conclusions. For example, Scalia is a pygmy compared to Thomas.

I judge people by how many times they say something stupid. I don't think I've ever heard anything from Thomas, or seen any opinion written over his signature that strikes me as anything but reasoned. (And considering the public inquisition he was subjected to, this is even more remarkable.) But Scalia ... At the only USSC argument I have attended at one point when Scalia made a point (Yes, it was a question.) I wanted to stand up and shout, "Et tu, Brute." (But I knew all the security there would have crushed a grape.)

ML/NJ

Oh, I don't know...Scalia has a point in that you can't just--all of a sudden--upset the constitutional law apple cart and then expect to carry on as if nothing happened.

I don't agree. When a decision like Wickard v. Filburn, which gave the federal government unlimited power, is a continuing evil it must be overturned. One need only to think of Plessy v. Ferguson and later Brown v. Board of Ed. to be reminded of how SCOTUS has done a 180 to correct a previous wrong. That decision was certainly more politically hot than this one and the country survived.

I have to agree with the driven by drug war comment. Notably absent in posts on the Gonzales decision is contrast with the Inspector case, also today, applying ADA law to foreign registry cruise ships. Rehnquist and O'Conner(!) dissented on both, each was an application of the Commerce Clause. Where was Scalia in the Gonzales case, and why did Thomas not join Scalia concerning cruise ships. Today was a big disappointment, Thomas and Scalia are my personal favorites as SCOTUS Justices

The Commerce Clause has been the major vehicle for federal intrusion into state matters since the New Deal. The lesson to me is that it is not only liberal judges who are willing to sacrifice Constitutional principle to a personal view of the particular case before them.

On any level, I think Scalia erred. I utterly fail to see where Ms. Raich's use of homegrown pot in California to relieve her pain (or for that matter, just to catch a buzz) affects my rights in Texas. Similarly, so long as the cruise line did not exaggerate and misrepresent the handicapped access on board, (an issue that could have been addressed under a totally different legal principle), why is this a matter for the nanny state to wade into?

The surprise of the day to me was O'Conner, two brownie points to her for consistency.

President (and pricipal author of the Constutition) James Madison: ...

I already commented on this post with a superior quote from Federalist #41 (Madison) on another thread.

ML/NJ

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

With all due respect, I like and respect Tom Sowell. But Tom Sowell is not educated in the law. His opinion would be just that - his opinion. I wouldn't expect it to be based on a deep understanding of the law.

Actually, what the Constitution gives Congress the power to do is:

To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;

so my reading is that the Federal government has the same power as regards commerce over the States as it has over foreign nations, which is to say not much. Can you imagine us telling the Netherlands to close down their Tea Houses?

ML/NJ

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

Why bother? The Robed Nazgul will say that your overturning is Un-Constitutional!

Or, they'll just disregard the overturning, and reaffirm their judgements from on high!

Nope, only a Revolution will bring about ANY real change...like Jefferson said!

Scalia has been walking a fine line lately, imo, between advocating what he sees as an original intent moral position, and authoritarian prohibitionism. He's crossed over that line now, and is openly pushing for government authority to prohibit most anything engaged in commerce.

Big mistake, although I guess he could become chief justice because of it.

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

If Scalia was a conservative and applied conservative principles rather than read and interpret the law and the constitution as he sees fit, he would be an activist judge.

A judge can be simultaneously damned if you do and damned if you don't.

James Madison to Joseph C. Cabell

13 Feb. 1829 Letters 4:14--15

For a like reason, I made no reference to the "power to regulate commerce among the several States." I always foresaw that difficulties might be started in relation to that power which could not be fully explained without recurring to views of it, which, however just, might give birth to specious though unsound objections. Being in the same terms with the power over foreign commerce, the same extent, if taken literally, would belong to it.

Yet it is very certain that it grew out of the abuse of the power by the importing States in taxing the non-importing, and was intended as a negative and preventive provision against injustice among the States themselves, rather than as a power to be used for the positive purposes of the General Government, in which alone, however, the remedial power could be lodged.

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

Gobbledygook.

Thomas agrees with Scalia that the commerce clause may be properly invoked by the federal government to control or prohibit marijuana in derogation of states' power to do otherwise. But he then proceeds to carve out an exception for these two women. Why? Just because.

Great reasoning there, Justice Thomas.

DaGman wrote:

If Scalia was a conservative and applied conservative principles rather than read and interpret the law and the constitution as he sees fit, he would be an activist judge.

Do you really believe that Scalia applied 'conservative principles' to interpret the Constitution as allowing prohibition thru use of the commerce clause?

JCEccles wrote:

Thomas agrees with Scalia that the commerce clause may be properly invoked by the federal government to control or prohibit marijuana in derogation of states' power to do otherwise.

Gobbledygook. - Obviously you haven't read all of his opinion. At no point does he agree "that the commerce clause may be properly invoked by the federal government to control or prohibit marijuana".

It's an especially poingant quote as it comes from the author of the constitution. Hard to find a more reputable source... (so when these judges are 'interpretting' the constitution one might think madison's remarks would aid in 'clarifying' their 'interpretations')

That quote came from here:
http://www.neoperspectives.com/quotes.htm

My first impression (i skimmed Scalia's opinion only) is that the majority decision by the SCOTUS is wrong.

when i heard the decision was 6 to 3, i immediately thought "of course, the 3 conservatives--scalia, thomas, rehnquist--verses the 6 leftists".

i was very surprised to see scalia on the majority and O'Connor in the minority.

"Do you really believe that Scalia applied 'conservative principles' to interpret the Constitution as allowing prohibition thru use of the commerce clause?"

No, I believe he read the constitution and case law and reasoned his decision according to what he understood and how he understood it.

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