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Commerce

Some of you may have heard that Congress passed some kind of health care reform bill. I’m not sure if it’s been discussed much publicly (I don’t watch the cable “news”) — in fact, I don’t know a single person who’s read it, so I’m sure they wouldn’t have much of an informed opinion to share. [Note: This is not an invitation to discuss the merits of health care reform — there are other places for that.]

One thing that I found interesting in the aftermath of passage was the fact that eleven state attorneys general are filing lawsuits claiming that the new law is unconstitutional before the ink is dry.

Those of us in drug policy reform would only need one word to explain to these attorneys general why their chances lie somewhere between slim and none. That word is:

Raich

Their claim is that the federal government doesn’t have Constitutional authority under the commerce clause to require individuals in states to participate in a national health insurance mandate. Well, that may have been true once. That may even have been the intent of the founders.

The Supreme Court ruled 6-3 in Raich that an activity involving purely non-commercial activity entirely contained within a state where that activity was legal (growing a medical marijuana plant and giving it to a sick person for free) somehow affected interstate commerce sufficiently to allow the federal government to interfere.

In light of that decision, it would be pretty hard for them to argue that health insurance didn’t affect interstate commerce, especially since allowing some to opt out would have a direct effect on the cost for others.

I’d love to see Raich reversed, but that’s not going to happen in a court that gives such uncritical deference to the executive and legislative branches. It’s unlikely that the case will even make it to the Supreme Court, but it would be kind of fun if it did, just to watch all the people come out of the woodwork calling for the overturning of Raich.

Analysis on this available from American Progress and from Orin Kerr at Volokh Conspiracy.

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21 comments to Commerce

  • ezrydn

    SCOTUS may still be smarting from the back handed slap they received recently. Imagine if their recent treatment somehow converted them to “founderism.” However, like you said, Pete, that probably won’t happen. They’ll acquire that “stiff upper lip, good show, carry on” attitude and pass on a chance to do some real good.

  • Just me

    Bigger pile of money to rob from. Thats it in a nut shell , so not the feds wont allow the states to stop this feeding frenzy by thier friends as has happened to many “piles” of money the feds have created.

  • Bruce

    Sad day. Had a teeny little plant outside my window. Seed must have fallen out of a doobie. Been watching it grow ever so slow since the 1st week of February. It was all of 2 inches tall and barely clinging to life. Thought it was going to make it but, today,, the window washers were here,,, and stepped on it.
    R.I.P. little one.

  • Shap

    We can all thank the illustrious Republican nominee John Paul Stevens for his constitutional atrocity known as Raich. He also just happened to be the dissenting judge in Kyllo as well as the writer of the opinion in Illinois v. Caballes which allowed dog sniffs to count as probable cause. He is a DRUG WARRIOR plain and simple who has expanded federal power with every stroke of his pen. I can only hope the rumors are true regarding his impending retirement because not even one of Obama’s liberal nominees could stain the court as badly as Stevens has over what has seemed like his century-long tenure on the Court.

  • Paul

    Heh. Conservatives painted themselves into a corner on this one, that’s for sure. Chickens roosting, and all that.

    I don’t think the supreme court will overturn the health bill on commerce clause grounds because of the undo deference you just mentioned, but if they so chose, they could find some convoluted gibberish to cover their inconsistencies.

    There are several members of the court who very clearly have personal policy preferences they allow to creep into their decisions, even if they must contradict earlier statements and decisions they made themselves. This is why we have a conservative/liberal split on the court, and Scalia’s decision on Raich is a perfect example.

    The problem is that federal power is just too big and tasty to surrender when you are wielding it. Conservatives talk a good game when they’re out of power about checks and balances and shrinking the Federal government, but once they are in charge, they spend money like drunken Democrats.

    I’m beginning to think they only thing that can stop D.C from taking over everything in the country is a rampaging mob that burns the place down.

  • DavesNotHere

    Shap, Stevens may have been appointed by a Republican (Ford, who also pardoned Nixon showing his judgment) but Stevens IS a Chicago liberal elitist. Always has been since the silver spoon was taken out of his mouth when he was born. He agreed with another Chicago liberal, Lisa Madigan Obama’s good friend, in Illinois v. Caballes. I bet Sotomayor will absolutely “stain” the court with the exact same type of decisions as Stevens put out in Illinois v. Caballes, in fact, Sotomayor is already agreeing with Stevens almost all of the time just as Sotomayor certainly would have in Raich and Caballes. Shap, I hope you are willing to hold Democrat appointments to the same scrutiny, or YOU might be a drug warrior yourself.

    For the record I believe every frickin Supreme Court Justice that the corrupt DEMOCRATS and REPUBLICANS have appointed since the civil war have been bad, and the pro-slavery Whigs and PRO-SLAVERY DEMOCRATS before them. To blame only Republicans just shows blind ignorance and contributes to the problem of human beings losing their freedom and rights. Obama wanted the Democrat Illinois Attorney General responsible for Caballes to become a US Senator from Illinois and Shap, you believe Obama won’t appoint drug warrior Supreme Court Justices? Shap, stop being part of the Obama kool aid drinking problem. Join us on the RIGHT side of the drug war where mandated government health care won’t result in mandated piss tests with all info shared with government for our own good and too lower health care costs from drug users for the good of the un-insured or some bullshit.

    Buy health care insurance from an insurance company whose stock price just ROSE after the bill was rammed through, or go to jail. FUCK THAT in America. There will be unrest.

  • DavesNotHere

    Raich and Obamacare have plenty of differences that the Supreme Court can use to set precedent by overturning Obamacare, but not touching Raich. Raich didn’t threaten to throw anyone in jail for refusing to engage in economic activity as Obamacare does. Raich said cannabis is still illegal under federal law, unlike buying health insurance, and that trading or even giving away cannabis does influence commerce (trade or give) unlike Obamacare where there is no trade or give. Obamacare seeks to regulate a lack of commerce, or the absence of commerce. This isn’t a slam dunk in logic, although I trust our Supreme Court as much as I do SLAVE TRADER DEMOCRATS and the Republicans who appoint them.

  • kaptinemo

    The Supremes had already shown their hands when it comes to ideological poker. I didn’t expect any products of the so-called ‘Federalist Society” to actually put their money where their supposedly ‘federalist’ mouths were, because that would have led to the mass dismantling of most of the Federal Gub’mint. The Duopoly wouldn’t want all their hard work and constructing the Federal Frankenstein’s Monster to go to waste. Not when it’s at the point where it can wipe out all rights and liberties now without much hassle on the part of the properly conditioned populace.

    The Commerce Clause has been the lynch-pin that has held the DrugWar gravy train together, and were it to be removed from the train, the engine would leave the baggage cars behind in the dust within a day. But so much else is depending upon that Clause that were it to be interpreted properly, on it’s face without any embellishments, the entire Federal bureaucracy would have to be overhauled, and made much, much smaller. And there’s too many (parasitic) mouths to feed to ever let that happen.

  • Price

    Raich wasn’t forced to buy…big difference…

  • greg

    okay, so I now HAVE to have insurance which pays for 3 primary care visits a year. Does anyone know if I also HAVE to avail myself of those services? In other words, do I just have to shell out the money for insurance, or will there also be someone charged with making sure I go to the doctor (preventative care and all).

    I know this might sound like a bit of hyperbole, but a week ago, I would have thought it was farfetched to be fined just for for the act of ‘being’.

  • greg

    and I second Price’s comment. I think this is a whole new arena with regards to interstate commerce. I’m still hopeful that at least the individual mandate falls.

  • Scott

    The legal path relevant to the Commerce Clause will inevitably clash with a critical point:

    If simply possessing a plant has a substantial affect on interstate commerce, than your thoughts, determining every facet of your buying and selling decisions, certainly has that affect too.

    That is an elephant in the room that everyone is apparently ignoring.

    Any sane person can see that the original Commerce Clause, “To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;” does not line up with a ban on the free growth, free distribution, and free possession of marijuana, all within a single state.

    This misalignment means the Supreme Court has exercised judicial activism, redefining the Commerce Clause in a way that undeniably opposes the self-evidently naturally-given part of liberty, a right legally protected by the Constitution (amendment IX says, “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”)

    To clarify, because anything has a substantial affect on interstate commerce (including breathing), allowing public servants to draw lines between legal and illegal acts using the Commerce Clause constitutes an illegal public servant given right to liberty.

    The Commerce Clause has been a public servant battering ram for decades, supporting their never-ending revolution against the limitations of power implicitly defined in the Constitution, our supreme law that these revolutionaries have ironically taken an oath to uphold.

    Sufficient public exposure will force the Supreme Court to finally address the limitations of their ridiculous Commerce Clause definition.

    I suggest that we help shine a light on the aforementioned elephant, engaging in a continuously strong online public relations campaign, in part to expose the clearly unconstitutional CSA.

    What do you think?

  • ezrydn

    No matter the topic, their ultimate goal is always the same – http://tinyurl.com/yhb4a2e

  • Bruce

    ‘CONTROL THE PEOPLE” Control ‘this’ you usurious underhanded Fichte cloned fuckhead ba$tards.
    http://mural.uv.es/joresbu/GermanSoldierThrowsGrenadeOperationBarbarossa.jpg

  • Shap

    I point out his republican appointment as a contradiction between conservative constitutional principles and Justice Stevens’ support of laws like the Controlled Substances Act. Souter was another failed Republican appointment that ripped apart the constitution with regard to the commerce clause. There is no hypocrisy with regard to liberal justices thinking the CSA is constitutional. Republicans are SUPPOSED to be conservative. All the liberal justices on the court currently think its constitutional for the federal government to tell you what you can and can’t put in your own body. They are already lost causes that I have no expectations for. Hypocrisy is the problem that I have with the Republican-appointed Justices.

  • kaptinemo

    “The Commerce Clause has been a public servant battering ram for decades, supporting their never-ending revolution against the limitations of power implicitly defined in the Constitution, our supreme law that these revolutionaries have ironically taken an oath to uphold.

    Sufficient public exposure will force the Supreme Court to finally address the limitations of their ridiculous Commerce Clause definition.”

    It was in 1937 with the skirmish between the Supreme Court and FDR’s Administration that FDR more-or-less gelded the Supremes and domesticated them for political purposes. It was during this time that both the imposition of cannabis prohibition and the critical twisting of the Commerce Clause (see Wickard) occurred. The latter was what allowed for the huge growth of the Federal government and the eventual complete subordination of the States, to them now being little more than postal organization codes.

    As I tried to say in an above comment, were the Commerce Clause to be strictly interpreted, most if not all of the present Federal bureaucracy would be forced to contract back down into a manageable size…and, perforce, cease to be able to trouble the average citizen and the States.

    That kind of power will not be given up easily. And the modern-day, politically polarized Supremes are painfully aware of that. Most of them are members of the so-called “Federalist Society”, which has been acting as anything but ‘federalist’ lately, with important members in strategic positions within government adjudicating more often than not on important cases in favor of that government at the expense of individual liberties and State’s rights.

    IMHO, the situation is so mired in having taken a wrong turn from 1937 on that it well take a significant shock to the system before the system can right itself once more. CA relegalizing will be the beginning of that shock, but only the beginning.

  • Just me

    “I’m beginning to think the only thing that can stop D.C from taking over everything in the country is a rampaging mob that burns the place down.”

    “Buy health care insurance from an insurance company whose stock price just ROSE after the bill was rammed through, or go to jail. FUCK THAT in America. There will be unrest.”

    It maybe coming to that. Even with polls showing majority against this bill, they do it anyway. They do alot of things in thier interest, not ours.The Road to Empire.

    Gangs take to the streets to solve problems because they cant go to government or courts.

    The people may soon have to do the same, for we are quickly seeing we are being ignored and courts serve government not us. We are close to not having anyplace to redress our greivences.

    Maybe thats what they want ,revolution, give them reason to to take total control.They cause the problem that makes them the solution.

  • Shap

    It’s time for a constitutional amendment defining commerce as only those activities that occur INTERSTATE as opposed to those activities that occur wholly INTRAstate. An amendment that removed wholly intrastate activities from commerce clause jurisprudence would significantly shrink the federal government and would return it to what it was meant to look like according to the founding fathers. The founding fathers are turning in their graves over what the Commerce Clause has been interpreted to mean.

  • Scott

    “That kind of power will not be given up easily. And the modern-day, politically polarized Supremes are painfully aware of that. Most of them are members of the so-called ‘Federalist Society’, which has been acting as anything but ‘federalist’ lately, with important members in strategic positions within government adjudicating more often than not on important cases in favor of that government at the expense of individual liberties and State’s rights.”

    Agreed.

    Sorry if the following is crude, but I need to rush it prior to getting back to a busy day.

    A balance of power is needed to discourage corruption.

    While there’s always going to be fluctuations in power (i.e. a perfect balance can never be sustained), if the victims of this imbalance fail to correct this balance by peaceful means, a major correction will happen when reality can no longer sustain the increasing imbalance (e.g. revolution).

    The only power I can see that can create this balance comes in the form of tens of millions of such victims organized into one determined, yet still decentralized (making it difficult to target), effort.

    We have the supreme law on our side, with the ability to apply rationality to discredit those who have clearly interpreted the law corruptly.

    Though a serious challenge to put it mildly, organizing the masses can perhaps be achieved using the Internet to bypass the mainstream media (who fails to play a key role to create this balance, such play requiring nothing more than honoring their journalism code of ethics), a number of solid (and perhaps mobile) leaders with excellent communication skills, and the basic resonating message about defending liberty.

    I have always believed that focusing on restoring ‘true’ (i.e. naturally-given and unalienable) liberty, which clearly demands an end to drug prohibition, relying on public relations tactics to gain passionate majority support to accompany lobbying, is an excellent way to go, because apparently the public majority is more likely to become passionate about defending liberty than legalizing drugs (try to find one American who will go up to the national podium and attack liberty).

    When your message is defending liberty, then prohibs are at a disadvantage, because their opposing message can be justly and quickly labeled anti-liberty.

    If “that kind of power will not be given up easily”, then the victims have no choice but to take it from them.

  • kaptinemo

    Another take on how Raich will affect the Healthcare Reform Debates: Freedom in One Word

    from the article:

    “You might be asking, “How does this apply to healthcare mandates?” Well, the answer is pretty simple. When enough states pass laws defying federal laws, and enough people actively defy them too, D.C. simply doesn’t have the manpower to arrest and prosecute all of us.

    This kind of activism – while it clearly carries personal risk – should be a real blueprint for people that have been consistently unable to find constitutional relief in Congress, the Executive, or the Courts.

    Marijuana users: Love ‘em or hate ‘em, but show some respect for them, as many have suffered greatly for doing what they believe is right. People who believe strongly about other issues, like health care mandates, would do well to learn from them.” (Emphasis mine – k.)

    The number of Fed narks is actually very low; they need local cops as muscle. If local cops are barred by State law from assisting Fed narks in cannabis-legal States, then the Feds have to collect and bodily ship groups of teams from their home locations and jet them here and there to conduct the raids themselves. The chances of that are shrinking, as it is becoming less politically safe to be wasteful of taxpayer’s money.

    Between the economy and popular legislation, drug prohibition is slowly being crushed. When (not if, but when) California relegalizes again, that will be the signal for the other States to follow suit. Even those States populated by the kind of constituency that sends Mad Mark Souder back to Congress regularly will face the economic reality, hold their noses, and vote in favor or relegalization…or face the economic losses inherent in maintaining their ideological/moral ‘purity’ by maintaining cannabis prohibition.

    Time. It’s just a matter of time. And time is on our side. but we shouldn’t wait to deliver the coup de grace. The Beast is still dangerous, as it’s been wounded and sees us closing in. So it will fight even harder. But the end is in sight, and the beginning of the end of cannabis prohibition is also where it started, and that was in California in the very early 1900’s. Talk about a ‘full circle’.