The Ninth Circuit’s Revenge

NRO ^ | June 09, 2005 | Randy Barnett

[neverdem]

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June 09, 2005,

7:41 a.m.

The Ninth Circuit’s Revenge

In Gonzales v. Raich, the circuit court won big.

By Randy Barnett

The Ninth Circuit finally got its revenge on the Supreme Court justices who seemed to delight in reversing it. In Gonzales v. Raich, it gave the conservatives a choice: Uphold the Ninth Circuit's ruling favoring individuals engaged in the wholly intrastate non-economic activity of growing and consuming cannabis for medical purposes as recommended by a doctor and permitted by state law, or retreat from the landmark Commerce Clause decisions of U.S. v. Lopez (1995) and U.S. v. Morrison (2000). Either way the Ninth Circuit wins. But with Justices Kennedy and Scalia on the liberal side of the Court, the Ninth Circuit won big. So did Judge Stephen Reinhardt, who first implemented this strategy in the child-porn case of U.S. v. McCoy.

Of course, my clients and I were betting the other way. Either all five federalist justices would hold to their principles, or a few of the more liberal justices might decide to follow the "precedents" of Lopez and Morrison and make an exception to their principled stance in favor of federal power out of concern for the tens of thousands of suffering patents who acted through the democratic processes of their states to enact compassionate use acts. It was not to be.

I credit the four Lopez and Morrison dissenters with putting their vision of the Constitution above precedent. I agree that unconstitutional precedent should not be followed (see my take on precedent here). I credit even more the three dissenters.

Justice O'Connor gets lots of grief from conservatives, but here she clearly put her longstanding judicial commitment to federalism above her expressed distaste for medical-cannabis laws. Her dissenting opinion adopted our analysis in its entirety. She clearly got it — as did the two justices who joined her opinion — which means the entire Court got it. In the end, the six in the majority completely understood our theory of the case, and simply disagreed.

I have sometimes heard even some of Chief Justice Rehnquist's greatest supporters question his commitment to principle, and few thought he would rule for us. Yet he did, and at a cost. Had he joined the majority, he could have written the opinion himself to limit the damage to his New Federalist legacy. Yet he joined the dissent anyway.

It comes as no surprise that I admire Justice Thomas's opinion. His opinion now establishes that there are not two principled originalist justices on the Court today, but one. To me, this means that when it comes to enumerated federal powers, there is only one justice who is clearly willing to put the mandate of the Constitution above his or her own views of either policy or what would make a better constitution than the one enacted.

I note something overlooked by all coverage of the case I have seen. Justices Rehnquist and Thomas both declined to join the paragraph in Justice O'Connor's dissent in which she expresses her disagreement with the state medical-cannabis laws. This does not necessarily mean that these two justices agree with the Compassionate Use Act, but it does mean that they explicitly refused to go on record against it. Contrast this with Justice Thomas's condemnation of the Texas anti-sodomy law in his dissent in Lawrence v. Texas.

Which brings me to the two justices in the federalist majority of Lopez and Morrison who have now joined the four dissenters in those two cases: Justices Kennedy and Scalia. Many reporters have asked me whether I can explain their votes. Veteran Supreme Court reporter Lyle Dennison has suggested that Justice Kennedy has a zero-toelrance approach to drugs. Justice Kennedy's deportment during oral argument supports that theory, but we will never know because he joined the majority opinion without comment. In Lopez and Morrison, Justice Kennedy offered concurring opinions that rested his decisions on a respect for the traditional functions of states, rather than on original meaning. Much of our brief was devoted to this issue, which, if anything, was stronger here — where states have affirmatively acted to protect the health and safety of their citizens — than it was in either Lopez or Morrison. How he reconciles his expressed support for the traditional law-enforcement role of the states with his joining what can only be described as the opposite view expressed by Justice Stevens only he can say. But he chose not to.

What about Justice Scalia? He did not join the majority opinion, resting his decision on the Necessary and Proper Clause, which he had previously described in Printz v. U.S. as "the last, best hope of those who defend ultra vires congressional action." In his concurring opinion in Raich, Justice Scalia appears to put his commitment to majoritarianism over his commitment to originalism. Yet this decision does run counter to his oft-expressed insistence that the people should act to protect their un-enumerated rights in state political processes rather than in federal court. Here this is exactly what the citizens of California and ten other states have done, but Justice Scalia's new stance on the Necessary and Proper Clause leaves citizens little, if any, room to protect their liberty from federal encroachment in the future. It has always seemed significant that he never joined Justice Thomas's originalist concurrences in Lopez and Morrison. Nor does he explain why Justice Thomas's originalist dissent in Raich is historically inaccurate, which would be incumbent on him as an "originalist justice" to do. Instead, Justice Scalia now joins in expanding the reach of the Commerce Clause power beyond even that which the Court had endorsed in Wickard v.

Filburn. In oral argument he admitted, "I always used to laugh at Wickard." Now it's Judge Stephen Reinhardt and the Ninth Circuit's turn to laugh.

Gonzales v. Raich has had the salutary effect of showing that federalism is not just for conservatives. Many liberals are distressed about Justice Stevens's opinion. With a Republican Congress they have come to see the virtue of state experimentation. The case also succeeded in raising the national visibility of the medical-cannabis cause. Maybe now Congress will act where it has refused to act in the past.

But Gonzales v. Raich has placed the future of the New Federalism in doubt, which makes future appointments to the Supreme Court all the more important. Will the president name someone who, like Justice Thomas, is truly committed to federalism? Or will his nominee be a fair-weather federalist, as Justice Scalia has turned out to be when the chips were down?

— Randy Barnett is the Austin B. Fletcher Professor of Law at Boston University and author of Restoring the Lost Constitution: The Presumption of Liberty. He argued Gonzales v. Raich in the Supreme Court last November.

	http://www.nationalreview.com/comment/barnett200506090741.asp

[dirtboy]

Or will his nominee be a fair-weather federalist, as Justice Scalia has turned out to be when the chips were down?

This has been my knock on Scalia all along. He talks the talk on federalism, but has no problem doing the Wickard when it suits his views. Plus, he seldom if ever met a search and seizure he didn't agree with, so he is weak in that regard as well.

Thomas's dissent was a thing of beauty. Maybe we can get Janice Rogers Brown on SCOTUS along with him and then really drive the libs bonkers.

[dirtboy]

Raich ping

[dirtboy]

an anti-American strategy to shred the U.S. Constitution via the 10th Amendment.

That is a truly stunning statement. Probably the largest problem in this country today is the fact that the 10th Amendment has become nearly a dead letter. Putting the 10th back into prominence would curtail many of the federal abuses of power that we see today.

But you see the 10th as a means to SHRED the Constitution? Woof.

Maybe a living Constitution as seen by libs and big-government conservatives. But not to originalist conservatives who realize that government is not the answer to everything.

[Wolfie]

The precedent this sets goes far beyond Wickard. Anything is now subject to Federal control.

[longtermmemmory]

I do not see this as a major issue the media is portraying.

Essentially the states tried to regulate a "medication."

If the states were to have had merely made it legal to grow it without the medical pretext then the case would have been different.

The court essentially called the states on the absurdity of marajana as a "medicial" product.

[dirtboy]

The court essentially called the states on the absurdity of marajana as a "medicial" product.

It's not the proper role of SCOTUS to decide if something that is not interstate and not commerce is absurd. This was a state matter that SCOTUS warped Wickard and the Necessary and Proper clause to justify federal jurisidiction over every activity in the land.

[MileHi]

Veteran Supreme Court reporter Lyle Dennison has suggested that Justice Kennedy has a zero-toelrance approach to drugs.

Ah, draw your conclusion and work backwards from there.

[MileHi]

I don't drink, toke or chew and don't go out with girls that do....

Oh, well then by all means, there ought to be a law. And a Federal one at that.

[billbears]

This is what happens when an American state is overrun by lawmakers without morals -- who create and use immoral state laws, then under States Rights doctrine hold them like a gun to the U.S. Constitution's head. Truly a horrid quandary for SCOTUS--and America.

And yet while Adams was alive, there was not a federal WOD, WOI, WOT, WOP, and any other 'war' the national government has started. Why when Adams was alive, the plant in question was not considered illegal. How is that? The Tenth Amendment is clear. No power belonging explicitly to the national government belongs to the states or the citizens thereof

Perhaps it's time to quit worrying about which judges will make activist decisions for 'our' side and look for judges that rule based solely on the Constitution and the limitations on the national government. Of course don't expect a Republican or Democrat to nominate someone like that very often. I'm seriously disappointed in Scalia.

[The Spirit Of Allegiance]

> > Oh, well then by all means, there ought to be a law. And a Federal one at that. < <

"Oh, well then by all means, there ought to be a law. And a Federal one at that."


There is. Formerly known as Blue Laws and varying from state to state, until the Conspiratorial Overarching National Federal Omnibus Morality Legislation (CONFORM) Act was instituted, in 1984.... /sarc.

As opposed to Cole's Law, which is thinly sliced cabbage....

[MileHi]

Formerly known as Blue Laws and varying from state to state..

Well, can't have that in this Brave New World, now can we?

[The Spirit Of Allegiance]

"Probably the largest problem in this country today is the fact that the 10th Amendment has become nearly a dead letter."


Agreed, but still, like a buried World War II bomb, still potentially potent....

[You Dirty Rats]

From the Opinion of the Court in Wickard v. Filburn:

"The general scheme of the Agricultural Adjustment Act of 1938 as related to wheat is to control the volume moving in interstate and foreign commerce in order to avoid surpluses and shortages and the consequent abnormally low or high wheat prices and obstructions to commerce. Within prescribed limits and by prescribed standards the Secretary of Agriculture is directed to ascertain and proclaim each year a national acreage allotment for the next crop of wheat, which is then apportioned to the states and their counties, and is eventually broken up into allotments for individual farms.

Thus speaketh the Supreme Soviet of the New Deal.

Wickard and the current case have this much in common: Both were about a ridiculous overreach of Federal Government Power and SCOTUS went along with it in both cases.

If I take these two decisions and Griswold, I can't grow wheat to feed myself or grow grass to smoke, but I have a fundamental right to a rubber. (I know Griswold was versus Connecticut, but the decision as given would prevent Congressional banning of rubbers also).

Now that Republicans are (mostly) in charge in Washington, it's pretty interesting that some on the LEFT are all of a sudden Federalists. Frankly, though, I don't think that's the issue. I don't want tyranny in a statehouse any more than I want it in Washington.

[The Spirit Of Allegiance]

Immoral state laws:

I'm referring to such things as the Massachusetts 'gay marriage' law, Maine's new no-parental-notification for teen abortion legislation, Nevada's human trafficking--oops I mean prostitution--laws....

Not all these are necessarily aimed at, or can be aimed at, SCOTUS and the teardown of the USA, of course. Some definitely ARE.

OTOH, the letter of the law does not make a legal act moral. Khan, Stalin and Mao had plenty of laws.

[dirtboy]

I'm referring to such things as the Massachusetts 'gay marriage' law, Maine's new no-parental-notification for teen abortion legislation, Nevada's human trafficking--oops I mean prostitution--laws....

So since Nevada makes prositution legal, the feds should have the power to stop that?

[The Spirit Of Allegiance]

Too many of those who live in Nevada and elsewhere have put pocketbock or personal gratification or whatever above principles. And when a State goes the way of the world, it cannot help but influence the rest of the federal body.

"We Hold These Truths to be self-evident...." Our country was built on moral premises. Forsake those and everything becomes a game of what's legal--where--when--according to the LETTER of the law rather than vice versa as originally intended.

[billbears]

I'm referring to such things as the Massachusetts 'gay marriage' law, Maine's new no-parental-notification for teen abortion legislation, Nevada's human trafficking--oops I mean prostitution--laws....

So? Don't live in Massachusetts, Maine, or Nevada. I don't agree with those laws either however as a conservative I'm not about to approve of the national government overriding those laws either. Federalism, although for the most part broken thanks to Republicans and Democrats, is about the only saving grace we have against the national government

[billbears]

And when a State goes the way of the world, it cannot help but influence the rest of the federal body.

Yes I suppose that's why prostitution has been legalized in the other 49 states of the union....

"We Hold These Truths to be self-evident...." Our country was built on moral premises. Forsake those and everything becomes a game of what's legal--where--when--according to the LETTER of the law rather than vice versa as originally intended.

Yes we hold these truths to be self evident. The truth of natural law and rights, that each individual's rights extend to themselves as long as they cause no harm of another individual. However, the limitation on this is at the state level as the 10th Amendment gives the respective states the right to pass laws such as they see fit.

[longtermmemmory]

The federal government regulates medication.

This was a case of medication.

If the states wanted to legalize it as a NONmedication then your argument would stand.

[dirtboy]

The federal government regulates medication. This was a case of medication.

The feds overreach here. Morphine is medication. And you can get it prescribed under federal law.

Marijuana cannot be prescribed, period.

But it's a plant. You can grow it like tomatoes. People in California grew it and consumed it, without commerce and without the plant crossing state lines, under the auspices of state law.

And the SCOTUS decision, and specifically Scalia's concurrence, dealt with marijuana as a "fungible" commodity as the reason to allow federal control of it. Scalia argued there was no way to tell medical marijuana apart from illegal weed, even though states track booze within their borders with stamps and controls. So the argument basically boils down to, do we think the feds should be able to ban pot, and let's make up some reason why.

Which is activism.