Combs Spouts Off

In a nutshell, the Raich (medical marijuana) ruling means that Lopez was an abberation and that Wickard is alive and well. Damn it. It also means we have exactly one Supreme Court justice who can be counted on to stand by the Constitution — Clarence Thomas.

If you want to read what lots of legal scholars, most enamored of stare decisis, have to say about Raich, check out SCOTUSblog. Frankly, I got bored after a while. Legal positivism and endless hair-splitting do that to me. But I found Radley Balko’s posts much more agreeable. Specifically, I agree with his assessment of Scalia’s concurring opinion:

It’s slimy. I never thought I’d see an avowed federalist justice favorably cite Wickard vs. Filburn, but Scalia does, and essentially argues an "ends justifies the means" approach to the Commerce Clause.
… 
Conservatives have long railed against Wicker, which held that a farmer who grows his own grain on his own land is subject to federal regulation via the Commerce Clause. Scalia just affirmed it.

Like Balko, I don’t see how Scalia’s argument in this case doesn’t invalidate his position in Lopez (which held that gun-free schools couldn’t be justified as a legitimate federal concern under the interstate commerce clause).  

Thomas’ dissenting opinion is outstanding, as Balko illustrates with choice quotes. Here’s the whole post, with some emphasis added by me:

Thomas…

…was dead-on, and proves to be the only principled federalist with an orginalist view of the Commerce Clause. Nut:

If Congress can regulate this under the Commerce Clause, then it can regulate virtually anything–and the Federal Government is no longer one of limited and enumerated powers.

[…]

Certainly no evidence from the founding suggests that "commerce" included the mere possession of a good or some purely personal activity that did not involve trade or exchange for value. In the early days of the Republic, it would have been unthinkable that Congress could prohibit the local cultivation, possession, and consumption of marijuana.

Thomas also takes shots at Scalia’s concurring "ends justifies the means" opinion (discussed below):

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 [C]onstitution."

The CSA, as applied to respondents’ conduct, is not a valid exercise of Congress’ power under the Necessary and Proper Clause.

He then explains why the CSA as applied to Angel Raich fails the Necessary and Proper test set out in 1819 in McCulloch v. Maryland, every step of the way.

Thomas then addresses Scalia’s position so directly, he may as well have called him out by name:

In Lopez, I argued that allowing Congress to regulate intrastate, noncommercial activity under the Commerce Clause would confer on Congress a general "police power" over the Nation. This is no less the case if Congress ties its power to the Necessary and Proper Clause rather than the Commerce Clause. When agents from the Drug Enforcement Administration raided Monson’s home, they seized six cannabis plants. If the Federal Government can regulate growing a half-dozen cannabis plants for personal consumption (not because it is interstate commerce, but because it is inextricably bound up with interstate commerce), then Congress’ Article I powers–as expanded by the Necessary and Proper Clause–have no meaningful limits. Whether Congress aims at the possession of drugs, guns, or any number of other items, it may continue to appropria[te] state police powers under the guise of "regulating commerce."

Let it no longer be said that Thomas carries water for Scalia.

He’s easily the most principled and consistent defender of federalism on the court.

Bravo, Justice Thomas.

I hope we get Janice Rogers Brown onto the D.C. Circuit Court this week, and I most fervently hope that, before this administration is over, she is elevated to the Supreme Court. Then, Thomas will have at least one reliable ally.

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