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

FindLaw ^ | 6/6/05

[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.

[Sandy]

But one state cannot defeat the drug law enforcement efforts of the rest of the country. Work to overturn the federal law

I have a better idea. If you don't like the Constitution, why don't you work to amend it rather than pretending that it's a living document and requiring the rest of us to work to overturn the unconstitutional laws which should've never been enacted in the first place?

[jwalsh07]

Seems as though Thomas and Rehnquist wanted to take on the extra constitutional intrastate Commerce Clause but Scalia couldn't get himself to go there. Mores the pity.

[Sandy]

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.

Uh, because a law can survive a facial challenge yet still be unconstitutional as applied in particular instances. The distinction between facial and as applied challenges is hardly a new concept. There's no "just because" about it.

"Duh, gee, it don't make no sense just because I don't understand it."

[Sandy]

Rehnquist surprised me. I don't know why I expected him to turn hypocrite on this issue, but I did. I was way off on that. What a blow to his New Federalism this decision is. I feel bad for the guy if he has to go out with the BS mucking up his legacy. I hope he plans on sticking around.

[tame]

but by going against precedent we must note that it is Thomas, not Scalia, who has taken the "activist judge" stance in this case.

i disagree. original meaning takes "precedent" over precedent.

only by equivocation could the term "activist judge" be used of Thomas.

[tame]

have a better idea. If you don't like the Constitution, why don't you work to amend it rather than pretending that it's a living document and requiring the rest of us to work to overturn the unconstitutional laws which should've never been enacted in the first place?

that definitely is a better idea :o)

[Ken H]

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.

Suppose Thomas votes to overturn Roe v Wade; and Scalia, citing precedent, votes to uphold it.

Which is the activist judge?

[Ken H]

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.

--John F. Scalia.

[Ken H]

In his opinion, Scalia quoted Chief Justice John Marshall from McCulloch v. Maryland, but maybe he should have looked at the stare decisis established by Marshall in Gibbons:

____________________________________________

"They [inspection laws] form a portion of that immense mass of legislation, which embraces everything within the territory of a State, not surrendered to the general government: all which can be most advantageously exercised by the States themselves. Inspection laws, quarantine laws, health laws of every description, as well as laws for regulating the internal commerce of a State, and those which respect turnpike roads, ferries, &c., are component parts of this mass."

"No direct general power over these objects is granted to Congress; and, consequently, they remain subject to State legislation."

That is stare decisis, isn't it?

Scalia: In the CSA, Congress has undertaken to extinguish the interstate market in Schedule I controlled substances, including marijuana.

The Commerce Clause unquestionably permits this.

Am I mistaken, or did he just endorse Wickard, not as stare decisis, but as his own judicial philosophy?

[Ken H]

He said interstate, so he did not endorse Wickard in that statement.

[UnbelievingScumOnTheOtherSide]

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

If everyone slavishly obeys the law, there can never be a groundswell to change it. Therefore the best and only way to push for changing the law is to ignore it and let them try to put five or ten million in jail.

[Tunehead54]

Its nite nite time but I suspect you'll understand when I express my dismay that the 10th Amendment is once again "forgotten" - even by our conservative justices.!

---

:-(

[Robert_Paulson2]

But states passing laws on guns is a tough question. Not easy at all.

---

Sure it is.
It's illegal.
Always has been.
That people have put up with it, is unbelievable.
That we could even consider countenancing it is blasphemy of our political foundations.

But what the hey!?!

The purpose of all these conflicting layers of laws and jurisdictions, precedents and stare decisis baloney is to gradually and systematically deprive the people of their absolute FREEDOM from UNWANTED GOVERNMENT... and simultaneiously disarm them so as to prevent a bloody insurrection over the criminalization of previously NON criminal behaviors, that tyrannists have ALWAYS used to subjugate free men and women.

Create criminal classes and make them overlap so that no one escapes.... and the elites, with THEIR guns, THEIR DRUGS of choice and their absolute-corruption based power are free to rule the slave class at gunpoint, in ways that serfs couldn't imagine in their worst, dark-aged nightmares.

It's unbelievable that such things would even be countenanced here on this CONSERVATIVE website... but there we have it.

game is over guys.
over.

[publiusF27]

Thank you for the other Madison quotation. I was going to look for that one next, but you've saved the trouble.

As I noted in this thread, I think that if you took the Raich decision back in time and showed the Founders at the Constitutional Convention what we were doing with the commerce clause, it would end the Convention on the spot, and the proposed Constitution would get ZERO votes.

[publiusF27]

He said interstate, so he did not endorse Wickard in that statement.

Beg to differ. Wickard was about the interstate wheat market. There's no way to decide the way Scalia did without endorsing Wickard.

[P_A_I]

Scalia:

"In the CSA, Congress has undertaken to extinguish the interstate market in Schedule I controlled substances, including marijuana.
The Commerce Clause unquestionably permits this."

Ken H:

Am I mistaken, or did he just endorse Wickard, not as stare decisis, but as his own judicial philosophy?

---

Its not just an endorsement. -- In effect Scalia decrees ["unquestionably"] that Congress has the power to "extinguish" a market.

He's blatantly 'begging' that Constitutional question. -- Does Congress have the power to prohibit? - the power to pass fiat 'Acts' that control substances, objects, and/or behaviors?

Well, its certainly 'unquestionable' that a socialistic majority of the USSC has that philosophy.

What say you?

[savedbygrace]

What's the source of that quote, please? IOW, where and when did Madison say that and where did you find it?

[joebuck]

How about Scalia's other statement:

"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."

I see this a clearly accepting and endorsing the Wickard doctrine. Under this reasoning the 10th amendment and federalism are gone. This reasoning can be used to justify ANY exercise of Federal power. I cannot believe the Founders intended the commerce clause to act as a giant loophole with the ability to swallow up completely the principle of a limited Federal government.

[JCEccles]

O'Connor/Thomas: "Why, lookee here! It's just two harmless middle-aged women trying to cope with their lumbago and gout, growing a little pot in a window sill box. How can THAT affect interstate commerce?"

Scalia: "Let's ask the 3,500,000 hippies, dope dealers, and Berkeley-educated physicians camped out in the backyard who are anxiously waiting for a go-ahead so they can shove 1,000,000 tons of legal marijuana through that loophole."

O'Connor/Thomas: "Aw, we're sure nothing like that will ever happen. See? The California Assembly promises us it won't. It'll only be used for serious illnesses like backaches. Not even a leaf or single seed of it will leave California and enter the surrounding states, and citizens of surrounding states will not come to California to be prescribed bales of marijuana they can take home in their car trunks. They know they would be in BIG TROUBLE if they did, so we're sure they won't do that."

Scalia: "You probably believe there will be no money changing hands either, no graymarket let alone a blackmarket for the stuff."

O'Connor/Thomas: "Our faith in tormented, suffering, pot-smoking mankind and in the good intentions of the California Assembly is unbounded."

Scalia: "The elected representatives of all the people, including the people who live in states surrounding California, had a different opinion about that when they passed a law to keep that loophole closed, and I cannot conclude theirs was an irrational or unreasonable opinion."

O'Connor/Thomas: "Aw, lighten up Tony, it's just two middle-aged ladies growing a little pot in a windowsill box. What harm can it cause? We're going to judicially legislate an exception just for them. It's the compassionate thing to do."

[P_A_I]

Exactly.. Scalia is simply reiterating that its legitimate [constitutionally] to eradicate "Schedule I substances from interstate commerce."

I cannot believe that a majority of our Supreme Court contend that the principle of Constitutionally limited Federal & State government is to be abandoned.