Comments on: Ashcroft v. Raich

by: J

Thu, 16 Jun 2005 03:22:55 +0000

Yes, Clarence would like to erase, oh, a hundred or so years of Commerce Clause jurisprudence & scrap this whole “affects commerce” stuff. He also really gets into the power of labels, insisting that “production” or “manufacture” is NOT “commerce,” as used in 1791 (i.e., barter & trade).

It’s quite an interesting case, and was basically the first question on my con law exam. Thankfully I’d followed the case quite closely. The exam was also entirely open book/pc, and, on a hunch, I’d downloaded copies of the briefs & a law prof’s post on the oral argument. :).

What was scary is that when I read Scalia’s opinion, he made just about every point I had on my exam. I wouldn’t have ever expected myself & Scalia to jive (well, I guess I did agree with his concurrence in Hamdi).

Really tho, Raich should have been a very easy case, requiring little more than regular application of long settled doctrine. I had expected it to be 9-0 or 8-1, depending on whether Clarence’s little diatribe about Wickard (the 1941 case in which the Supreme Court “aggregated” the effect of one farmer’s homegrown wheat [which exceeded his quota] to declare his actions created the required effect that could frustrate Congress’ regulation of the market) was angry enough to strike out on his own. I was really quite surprised to see Sandy & Bill jump ship with him. But, I guess Sandy really goes for this whole “states as laboratories of Democracy” stuff. Which, as an idea, is a nice one, but when Congress has already spoken & enacted a comprehensive regulation, as it has with controlled substances, then it doesn’t really carry any weight.

by: Josh

Wed, 08 Jun 2005 20:32:50 +0000

Yeah, that sounds about right. Federal drug laws are properly based on regulation of interstate commerce. Private marijuana use does/doesn’t affect the enforcement of these laws, so it does/doesn’t indirectly affect interstate commerce.

Justice Thomas seems a little pissed about the indirect effects issue as a whole. Originalism, I guess (Thomas is the originalist, right?).

by: CM

Wed, 08 Jun 2005 19:27:32 +0000

Interesting — it seems like, federalism issues aside, it came down to policy. The majority thought it was clear that private marijuana growth undermines anti-drug legislation (which means it does affect interstate commerce); the minority said it was unclear that it had any effect on drug trade (which means it doesn’t affect interstate commerce). Based on which version of reality you choose, the Commerce Clause argument directly follows.

by: Taco John

Wed, 08 Jun 2005 13:18:07 +0000

I also ordered my first textbook, my first commercial outline, and my copy of Black’s, which should be here in a couple of weeks. And I know that I’ll be pleasure reading from all that for the rest of the summer. So I’ll be breaking my own rule.

by: Taco John

Wed, 08 Jun 2005 00:19:04 +0000

Yes, I’m looking forward to law school, but I also realize that in about three months, I’ll be hoping for an escape every now and then.

I’m doing a summer start program, taking Criminal Law before the regular semester.

by: Josh

Tue, 07 Jun 2005 17:13:22 +0000

You’ll soon start “having to” live the law? I’d say I soon “get to”… You really don’t sound very interested in the subject that you are choosing to immerse yourself in for the next three years (at least).

“I’d like to ignore it until then.”

Well, you are certainly free to do so.

by: Taco John

Tue, 07 Jun 2005 16:45:15 +0000

My argument is simple: in a month I start having to live the law. I’d like to ignore it until then. It has nothing to do with the quality of the commentary. I’ll just have to eat around the legal talk, so to speak.

by: Josh

Mon, 06 Jun 2005 19:26:46 +0000

Whoa there, Taco John. First, I attempted no substantive legal discussion here. Basically, I paraphrased SCOTUSblog’s info on the case, which requires no real legal knowledge. Second, if we’re gonna cut off discussion before classes, presumably because we don’t know what we’re talking about, why should that change after the first day of classes? Maybe we should wait ’til the end of the first semester… but what about topics we haven’t had classes in yet? I won’t take Constitutional Law until 2L year. Should I ignore Supreme Court decisions until then? Shit, maybe we oughta just wait ’til we graduate to talk about law stuff.

I see the appeal in your argument. There’s enough ill-informed commentary out on the internets as it is, and it would be nice if people refrained from lecturing on topics they don’t understand, but, um… no.

Let’s just agree that beer is good and leave it at that.

by: Taco John

Mon, 06 Jun 2005 18:08:56 +0000

I would like to renew my call for no legal questions or legal discussion on pre-law blogs until you start classes. And yes, I know I’m asking people to shut up about a topic they love just as they start to get really excited about it, but let’s just talk about baseball, beaches, and brews.