[publiusF27]

Justice O'Connor, joined by Rhenquist and Thomas:

the Necessary and Proper Clause will always be a back door for unconstitutional federal regulation. Cf. Printz v. United States, 521 U.S. 898, 923 (1997) (the Necessary and Proper Clause is “the last, best hope of those who defend ultra vires congressional action”). Indeed, if it were enough in “substantial effects” cases for the Court to supply conceivable justifications for intrastate regulation related to an interstate market, then we could have surmised in Lopez that guns in school zones are “never more than an instant from the interstate market” in guns already subject to extensive federal regulation, ante, at 8 (Scalia, J., concurring in judgment), recast Lopez as a Necessary and Proper Clause case, and thereby upheld the Gun-Free School Zones Act of 1990. (According to the Court’s and the concurrence’s logic, for example, the Lopez court should have reasoned that the prohibition on gun possession in school zones could be an appropriate means of effectuating a related prohibition on “sell[ing]” or “deliver[ing]” firearms or ammunition to “any individual who the licensee knows or has reasonable cause to believe is less than eighteen years of age.” 18 U.S.C. § 922(b)(1) (1988 ed., Supp. II).)

[robertpaulsen]

The Raich case hinged on the Necessary and Proper Clause. Scalia won. O'Conner lost.

So in his Raich dissent, O'Conner is reminding us that in 1990 Lopez, Scalia made the Necessary and Proper argument and lost. O'Connor is saying that Scalia should lose again for a similar reason.

O'Connor says, as with Lopez, "There is simply no evidence that homegrown medicinal marijuana users constitute, in the aggregate, a sizable enough class to have a discernable, let alone substantial, impact on the national illicit drug market–or otherwise to threaten the CSA regime."

Followed by (this is the best part) "... in part because common sense suggests that medical marijuana users may be limited in number and that California’s Compassionate Use Act and similar state legislation may well isolate activities relating to medicinal marijuana from the illicit market, the effect of those activities on interstate drug traffic is not self-evidently substantial."

BWAHAHAHAHAHA! Yeah. California "may well" isolate my a$$. What was that other thread about? A "medical marijuana" store opening up at Fisherman's Wharf in San Francisco?

Scalia was right. Congress cannot rely on the states to do the enforcement of local regulations where interstate commerce is at stake.

(Oh, nowhere in Raich does it say that the Lopez law with the new language is perfectly Constitutional in light of Raich. O'Connor is simply whining that if we applied Scalia's logic to Lopez, Lopez would have been decided differently. O'connor is not making a case FOR Lopez and much as he is making a case AGAINST Raich.)