Where Did All the Federalists Go?

The Medical Marijuana case, Ashcroft v. Raich, has come down in favor of the government. The Court ruled that the federal government could ban non-commercial use of medical marijuana as part of its general statutory scheme against drug use. For the executive summary, check out Obsidian Wings. For the deep and in depth version, Larry Solum is your man. Or, if you want to read the actual opinions yourself, here are the words of Justice Stevens (majority), Scalia (concurring), O'Connor (primary dissent), and Thomas (dissent). The case was 6-3, with Stevens, Scalia, Breyer, Ginsburg, Souter and Kennedy prevailing over Rehnquist, Thomas, and O'Connor.

I gave my hopelessly outdated analysis of the legal issues back here. The Volokh Conspiracy has tons of excellent posts up, all of which rise to their usual insightful brilliance. The most thought provoking, however, was this one by Orin Kerr on which cases are likely candidates for the court to exercise strong federalist impulses.

More broadly, it seems to me that the theme of the Rehnquist Court's federalism jurisprudence is Symbolic Federalism. If there is a federalism issue that doesn't have a lot of practical importance, there's a decent chance five votes exist for the pro-federalism side. Lopez is a good example. Lopez resulted in very little change in substantive law. Yes, the decision struck down a federal statute, but it indicated that Congress could quickly reenact the statute with a very slight change. Congress did exactly that: It re-passed the statute with the added interstate commerce element shortly after the Lopez decision. Lower courts have upheld the amended statute, and the Supreme Court has shown no interest in reviewing their rulings. Because nearly every gun has traveled in or affected interstate commerce, the federal law of possessing guns in school zones is essentially the same today as it was pre-Lopez.

As soon as the issue takes on practical importance, however, the votes generally aren't there. If anything, the surprise today was that there were three votes for the pro-federalism side.

In other words, conservative judges are enamored with federalism in theory, but when in practice it will lead to significant policy changes, they chicken out (isn't that activist judging?). This case, as many other people have pointed out, presented an interesting test case, a conservative theory (federalism) would mandate a liberal policy outcome (legalizing medical marijuana) To their credit, few of the judges involved took the bait. The liberal justices in the majority have never been huge fans of aggressive federalism, and refused to apply it even when it may have been in congruence with their policy agenda. Same for the dissenters--I doubt that Rehnquist, O'Connor, or Thomas wishes to see marijuana decriminalized, but they went where their principles led them.

The cross-over, then, was Justice Scalia, and this is a very interesting development. David Bernstein has emerged from his hiatus to speak on the case, and he specifically argues that:

Justice Scalia's concurrence, unlike Justice Thomas's dissent, does not address the original meaning of the Commerce Clause. This reflects a pattern with Scalia, apparent also in his affirmative action, First Amendment, and other opinions: he is much more likely to resort to originalist arguments when they can be used to undermine Warren Court precedents that conflict with his deeply held moral and political views than when such arguments would either undermine his political views or challenge precedents that are not on the social conservative (tempered, as in First Amendment cases, by Scalia's academic elitist solicitude (which I share) for freedom of expression) "hit list."

I'm not sure if that's exactly right (how does it explain his opinion in Hamdi v. Rumsfeld, for example?), but it is certainly thought provoking. I've always considered Scalia to be the epitome of principled conservatism, thanks to cases like Hamdi and Texas v. Johnson (anti-flag burning laws are unconstitutional). However, in retrospect, many (not all, but many) of the "liberal" Scalia opinions have been on free speech or search and seizure cases. On many others, Scalia has seemed to ignore his own expressed standards and upheld politically conservative positions (Oregon v. Smith comes to mind). If this theme is picked up by more centrist and liberal commentators (and it just might), then we might be able to make some headway in the battle against the idiotic labeling of only liberals as "judicial activists." Taking the really cynical view of it, Ethan Leib of Prawfsblawg thinks that the liberal justices on the court acquiesced to this result simply because "[e]very judge has to vote against his/her policy preferences sometimes to show that his/her jurisprudential principles are driven by honest and policy-preference-proof foundations." Ugh, but I fear he might be right.

Guest-posting at SCOTUS Blog (which also is doing great analysis of this case), Ann Althouse defends Scalia from this line of criticism (link: De Novo, who concurs). She writes:

I'm sure many people will accuse Scalia of faltering in his support for federalism. But I have always thought the best way to understand Lopez is not by the commercial/noncommercial distinction, but by whether the regulated intrastate activity is part of a connected web of interstate activity. We can picture individual states making diverse, decentralized decisions about how to deal with violence in schools -- the interstate activity in Lopez -- without the policy in one state interfering with the approach chosen by another. One state's experiment with gun-exchange programs and parental responsibility laws doesn't undercut a tough imprisonment policy used in the next state. You don't need a uniform national law to deal with the problem. In fact, the different state policies work as experiments, generating information about which policy works best. But if it is to be possible to ban marijuana, a uniform national law is important. One state's lenient approach would undercut the next state's hardcore approach. That's the Lopez-based argument for congressional power in Raich.

That's compelling in the abstract, but I'm not convinced that medical marijuana alone is part of the "connected web of interstate activity." As I wrote in my previous analysis:

What seems to be key here is that, since the marijuana is NOT part of the marketplace and is entirely contained within one state, any impact on commerce is incidental and is de minimis. This is especially true since the amount of users of medical marijuana amounts to a tiny fraction of the overall market demand for marijuana. As such, one of the governments primary arguments, that allowing for medical marijuana would lower market prices and thus undermine the governments regulatory scheme--which consists of creating a black market that keeps marijuana prices high--seems specious at best.

In the specific situation we are presented with here, I find it unpersuasive that California's policy will "undercut" anything, so long as there is still aggressive enforcement of folks who try and obtain the drug via illegal prescriptions (which is the same situation we are faced with virtually any prescription drug).

So it is back to congress we go (link: Balloon Juice). Who knows--given the nearly universal outcry against this decision, maybe we will get somewhere.

UPDATE: As always, your Moderate Voice roundup.