The Commerce Clause, The Federal Judiciary, and Tyranny (or How Scalia Helped Screw America)

self | 10/15/09 | Huck

[tacticalogic]

Just as the federal government can allow it or disallow it under federal law, as they choose.

Begging the question. They cannot "chose" to do what they are not authorized to do.

[Huck]

You’re wasting your time. Some people can’t get past the fact that Raich concerned “the devil’s weed.” Therefore, the outcome had to be correct! The fact that every single left wing judge decided the same way doesn’t raise any suspicion whatsoever. It’s the devil’s weed. The end justifies the means.

[Mojave]

When, if ever, has the congress exercised it's prerogatives granted by "with such exceptions, and under such regulations as the Congress shall make."?

It's rare.

"By the Act of February 5, 1867, Sec. 1, 14 Stat. 386, Congress had authorized appeals to the Supreme Court from circuit court decisions denying habeas corpus. Previous to this statute, the Court's jurisdiction to review habeas corpus decisions, based in Sec. 14 of the Judiciary Act of 1789, 1 Stat. 81, was somewhat fuzzily conceived."

http://caselaw.lp.findlaw.com/data/constitution/article03/20.html#f1067

[antiRepublicrat]

So if Congress foreclosed an activist court from legalizing pot by judicial decree

In this case it was the people of California through their legislature and governor who legalized pot. They expected a non-activist court to uphold the will of the people and the sovereignty of the state because the federal government was reaching beyond its authority to prosecute people for things that were perfectly legal in that state.

[Mojave]

Begging the question. They cannot "chose" to do what they are not authorized to do.

Yes. You are begging the question by assuming, with no basis in law, that Congress may not regulate the massive marijuana trade among the states.

[Bigun]

Thanks!

I could not find a single instance.

[Mojave]

I vaguely recall that there were a couple of others. In any case, it’s very rare.

[Mojave]

In this case it was the people of California through their legislature and governor who legalized pot.

Actually not. They removed some of the state restrictions. State pot arrests are still commonplace.

Neither Proposition 215 (which contained explicit ballot disclaimers that it did NOT apply to federal laws) nor subsequent legislation purported to nullify concurrent federal regulations.

[Mojave]

However, that bolded section appears to only apply to appellate jurisdiction.

True. And the Court enjoys NO original jurisdiction over marijuana cases.

Score one for the Constitution.

[mjp]

the history of the Commerce Clause, and the willingness of even Justice Scalia (Et tu, Nino?) to adopt the most liberal constructions to reach a desired end, it appears to me that the Constitution will never return to any semblance of limited power

The Constitution gives Congress the power to tax, spend, borrow, and regulate, which they will continue to expand as much as they can. It will probably require some new amendments to limit it.

[Huck]

Marijuana has nothing to do with federal judicial jurisdiction one way or the other. You seem hung up on the wacky weed.

I believe in the case of Raich, the SCOTUS had original jurisdiction, if I am correctly interpreting the Attorney General, who was the defendant, to be a "public consul."

It went directly to the Supreme Court. Pot has nothing to do with jurisdiction. It has to do with who or what is a party to the case.

[Huck]

Technically, you could say the original judiciary act was such an act.

[Rockingham]

The federal judiciary has accrued power because the federal government has accrued power. Do not think that the edge of the sword operates apart from the bulk of the sword and the arm and mind that wields it.

[Mojave]

Marijuana has nothing to do with federal judicial jurisdiction one way or the other

I'm really disappointed by your lack of knowledge. The Constitution explicitly limits the Court's original jurisdiction as follows:

In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction.

Good luck finding a marijuana emanation of a penumbra in there.

[EternalVigilance]

Once again, a very thought-provoking and interesting piece of writing.

[tacticalogic]

Yes. You are begging the question by assuming, with no basis in law, that Congress may not regulate the massive marijuana trade among the states.

That begs the question as to whether the prohibition laws are within federal authority under the Commerce Clause.

[Huck]

Are you really that dense, or just trying to waste my time? The SCOTUS has original jurisdiction in Raich because a public minister or consul—The Attorney General of the US—was a party to the suit.

[Huck]

I’ll be taking on the Commerce Clause directly soon, and I’ll be sure and ping you, and Mojave.

[Mojave]

I believe in the case of Raich, the SCOTUS had original jurisdiction, if I am correctly interpreting the Attorney General, who was the defendant, to be a "public consul."

Appeal. United States Court of Appeals for the Ninth Circuit.

[Rockingham]

The states are not 'sovereign' but have some powers reserved to them within the federal system. These powers do include nullification of federal law and the laws of sister states.

If California or another state legalizes marijuana or slavery or the manufacture and private possession of weaponized anthrax spores, hand grenades, or truck bombs, it subverts the respective federal and state bans. No system could survive in which one state could permit and enable what the federal government and other states categorically prohibit. Yet that is what your view of the Commerce Clause supposes.