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.
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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.
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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.
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."
I agree, sort of, that Scalia is not being a judicial conservative in this case.
The determination of whether a power is justified because it is "necessary and proper" to one of the very few enumerated powers of the federal government, is best determined at the trial court level.
Since the lower court upheld the state law, Scalia - having expressed the legal principle - should have deferred to the finding of the lower court.
Indeed, the matter (as to whether state medical marijuana laws are constitutional) was, from the stanoint of a judicial conservative, not prescient. Until the Supreme Court rendered this decision, we had one circuit court that ruled on the matter, whose jurisdiction covered almost all of the ten states court with medical marijuana laws. There was, therefore, from the standpoint of a judicial conservative, no need for the Supreme Court to intervene.
IF and when another circuit court ruled on the matter, and ruled otherwise, striking down state medical marijuana laws as unconstitution, then the Supreme Court would have wanted to rule decisively so as to clarily the law. From a judicial conservative's point of view, there was no need for the Supreme Court to jump the gun on theis issue.
No, the reason the Supreme Court jumped the gun was clear: the majority wanted to assert federal supremacy in this matter.
Scalia, therefore, in concurring with the majority, was too smart by half. He gave lent the majority decision more weight than it deserves, and delayed, if not pre-empted an overturning of the noxious legal principle that 10th Amendment does not restain the commerce clause.