Tuesday, June 07, 2005
Gonzales v. Raich: Intellectually Disappointing
Personal note: this is the fourth time that I have tried to write a post regarding the Court’s decision yesterday in Gonzales v. Raich, each time I got about ½ way done and realized that I didn’t have anything profound to say. At first I chalked this up to a long day’s work and no brain power left. Upon later reflection, however, it occurred to me that my lack of things to say is because there simply isn’t anything to say. The decision, for all its hype, really doesn’t, in my opinion, add or detract anything substantial to our understanding of the Commerce Clause or its scope and application. Advocates for both positions were looking for something much more from this decision than they got, which makes it arguably the decision most analogous to the dud firework on the 4th of July, started out with great expectations and tremendous promise, ended in a disappointing result.
Why is this case disappointing? Well, in large part its because frankly a first year law student, or a senior in college with a bit of both American history and political/legal savvy could have written it. No disrespect to Justice Stevens intended, but his opinion is more or less a textbook example of 1L legal reasoning: State the facts; describe the competing applicable precedents (in this case Wickard and Lopez/Morrison); apply the facts to the law (holding that these facts are similar to Wickard); and distinguish the remaining applicable cases (holding that Lopez/Morrison does not apply because the activity at issue is "commercial" in nature). Presto, Supreme Court majority opinion. A magical formula to be sure, but one that leaves many of us, myself included, wondering that, if the case was really as cut and dry as Stevens made it, (a) why did the Court take so long to announce its decision? and (b) why was there so much pre-decision speculation and anticipation over this case?
The fact remains that the Court failed to provide a response to, or even address what I thought was the biggest unanswered question, namely, how is that Wickard and Lopez/Morrison can co-exist? Essentially, the Court response was, they can because we say they can and we will decide which decisions apply on a case-by-case basis. Only Justice Scalia’s concurrence even attempts to reconcile the two strands of cases, and he does so by attempting to argue that the "necessary and proper clause" will determine when Wickard applies and when it does not. Stevens notes the "necessary and proper clause" in the majority opinion, but declines to provide any analysis as to its application. One might read this majority opinion as holding that if a federal regulation needs 100 points to be considered constitutional, the commerce clause alone may get you 85 of them, but in order to achieve the other 15, Congress will have to show that the law is "necessary and proper" to achieve its ends. This might create a new theory of "commerce plus," but given the lack of analysis by the majority, we don’t really know what to make of the idea of the commerce clause + the necessary and proper clause.
On the other hand, some may argue that this opinion means that Lopez and Morrison were "paper tigers" and not truly a "federalism revolution." This I think overstates things a bit. Lopez itself was more a result of bad statutory drafting than anything, Congress was both sloppy and lazy, and the Court called them out on it (this is evidenced by the fact that subsequent to the decision Congress amended the Gun Free School Zone’s Act to include a interstate commerce requirement and it has since been upheld as constitutional). Morrison, however, was clearly a stretch by Congress and can simply be characterized as an overreach that was likely correctly decided by the Court. That being said, the cases clearly contained language that indicate they are more than mere "paper tigers" and have had the effect of limiting Congress somewhat in its use of the Commerce power.
In the end its hard to know what to make of Gonzales v. Raich, however, I will take this opportunity to respond to two point that GC made in his previous post. The first deals with "medicinal use," while the second will address his thoughts on Raich versus Wickard. I should first state that with respect marijuana use I have no personal experience so I have no idea what, if any, effects it has on the body or mind. In fact, in the interest of full disclosure, I was a registered voter in CA at the time this law was on the ballot and voted NO, so I am really the last person to be arguing for its legalization, medicinal or otherwise. That being said, GC’s point that "[s]omething is not ‘medicinal’ merely because it reduces pain. Something is medicinal if it has curative capacity" seems to me to be incorrect. By this rationale, it seems to me that all pain killers should then be illegal. Tylenol, Advil, Motrin, Aleve, Aspirin, Excedrin, none of these commonly used products or even their more potent prescription versions has a "curative capacity." Tylenol doesn’t actually heal my headaches, and Advil doesn’t make my damaged knees or my inflamed ligaments heal, they merely reduce my pain and allow me to do things that without them I would be less inclined to do. Similarly, medicines for arthritis and many other diseases don’t have any "curative capacity" they simply make living with the affliction tolerable. All this is by way of saying that I think GC’s definition of medicinal purposes is far to narrow, and in fact, misses the point. Now I don’t know if marijuana is like Tylenol or Advil or not, but I have read the anticdoctial evidence, which suggests that, for some people, marijuana is the only thing that reduces their pain (after having tried every other available pain killer) and promotes appetites, especially in people who are undergoing chemotherapy for the treatment of cancers. So I think that both GC and John P. Walters, President Bush's ONDCP Director need to reevaluate their definition of "medicinal purposes."
My second response to GC has to do with this assertion:
I’m not sure that the criminal element has anything at all to do with the decisions in either case. Justice Scalia, for one has lamented time and again (including at a speech that both GC and I attended) regarding the federalization of criminal laws, yet look at his vote in this instance. Further, I would remind GC that the Agriculture Adjustment Act (AAA) that prevented Mr. Wickard from growing excess wheat, did make his actions a violation of the law, just like possessing marijuana is. While I’m not certain what the penalty for violation of the AAA was, it seems to me that Mr. Wickard’s actions were just as "illegal" as Ms. Raich’s were. Thus, the fact that the decision in Raich deals with "contraband" as opposed to an acceptable commodity such as whole grains, seems to me to not matter at all. If one does not think Wickard to be a
legitimate use of the commerce power, I fail to see how they could support the decision in Raich, unless they impose their personal political preference in opposition to the legalization of marijuana. Opposition to marijuana is perfectly reasonable, in fact, I personally agree, but I’m not sure that the two positions are consistent.
I personally think Wickard was properly decided, or at least can be defended, thus I’m not
as troubled by the Raich decision. While I would have liked a better opinion from the majority, the result is acceptable. I’ll close with this thought, the next big "commerce" case may deal with the State of Oregon’s assisted suicide law, I’m sure Raich will have an influence there and
we may have to wait for that decision before concluding with any certainty what Raich means.
Why is this case disappointing? Well, in large part its because frankly a first year law student, or a senior in college with a bit of both American history and political/legal savvy could have written it. No disrespect to Justice Stevens intended, but his opinion is more or less a textbook example of 1L legal reasoning: State the facts; describe the competing applicable precedents (in this case Wickard and Lopez/Morrison); apply the facts to the law (holding that these facts are similar to Wickard); and distinguish the remaining applicable cases (holding that Lopez/Morrison does not apply because the activity at issue is "commercial" in nature). Presto, Supreme Court majority opinion. A magical formula to be sure, but one that leaves many of us, myself included, wondering that, if the case was really as cut and dry as Stevens made it, (a) why did the Court take so long to announce its decision? and (b) why was there so much pre-decision speculation and anticipation over this case?
The fact remains that the Court failed to provide a response to, or even address what I thought was the biggest unanswered question, namely, how is that Wickard and Lopez/Morrison can co-exist? Essentially, the Court response was, they can because we say they can and we will decide which decisions apply on a case-by-case basis. Only Justice Scalia’s concurrence even attempts to reconcile the two strands of cases, and he does so by attempting to argue that the "necessary and proper clause" will determine when Wickard applies and when it does not. Stevens notes the "necessary and proper clause" in the majority opinion, but declines to provide any analysis as to its application. One might read this majority opinion as holding that if a federal regulation needs 100 points to be considered constitutional, the commerce clause alone may get you 85 of them, but in order to achieve the other 15, Congress will have to show that the law is "necessary and proper" to achieve its ends. This might create a new theory of "commerce plus," but given the lack of analysis by the majority, we don’t really know what to make of the idea of the commerce clause + the necessary and proper clause.
On the other hand, some may argue that this opinion means that Lopez and Morrison were "paper tigers" and not truly a "federalism revolution." This I think overstates things a bit. Lopez itself was more a result of bad statutory drafting than anything, Congress was both sloppy and lazy, and the Court called them out on it (this is evidenced by the fact that subsequent to the decision Congress amended the Gun Free School Zone’s Act to include a interstate commerce requirement and it has since been upheld as constitutional). Morrison, however, was clearly a stretch by Congress and can simply be characterized as an overreach that was likely correctly decided by the Court. That being said, the cases clearly contained language that indicate they are more than mere "paper tigers" and have had the effect of limiting Congress somewhat in its use of the Commerce power.
In the end its hard to know what to make of Gonzales v. Raich, however, I will take this opportunity to respond to two point that GC made in his previous post. The first deals with "medicinal use," while the second will address his thoughts on Raich versus Wickard. I should first state that with respect marijuana use I have no personal experience so I have no idea what, if any, effects it has on the body or mind. In fact, in the interest of full disclosure, I was a registered voter in CA at the time this law was on the ballot and voted NO, so I am really the last person to be arguing for its legalization, medicinal or otherwise. That being said, GC’s point that "[s]omething is not ‘medicinal’ merely because it reduces pain. Something is medicinal if it has curative capacity" seems to me to be incorrect. By this rationale, it seems to me that all pain killers should then be illegal. Tylenol, Advil, Motrin, Aleve, Aspirin, Excedrin, none of these commonly used products or even their more potent prescription versions has a "curative capacity." Tylenol doesn’t actually heal my headaches, and Advil doesn’t make my damaged knees or my inflamed ligaments heal, they merely reduce my pain and allow me to do things that without them I would be less inclined to do. Similarly, medicines for arthritis and many other diseases don’t have any "curative capacity" they simply make living with the affliction tolerable. All this is by way of saying that I think GC’s definition of medicinal purposes is far to narrow, and in fact, misses the point. Now I don’t know if marijuana is like Tylenol or Advil or not, but I have read the anticdoctial evidence, which suggests that, for some people, marijuana is the only thing that reduces their pain (after having tried every other available pain killer) and promotes appetites, especially in people who are undergoing chemotherapy for the treatment of cancers. So I think that both GC and John P. Walters, President Bush's ONDCP Director need to reevaluate their definition of "medicinal purposes."
My second response to GC has to do with this assertion:
Raich, unlike Wickard, deals with activities considered criminal by the federal government and non-criminal by some state governments, whereas good ole Wickard somehow found non-criminal agricultural production to be prohibited as deleterious of our very national fiber under the Commerce Clause.
I’m not sure that the criminal element has anything at all to do with the decisions in either case. Justice Scalia, for one has lamented time and again (including at a speech that both GC and I attended) regarding the federalization of criminal laws, yet look at his vote in this instance. Further, I would remind GC that the Agriculture Adjustment Act (AAA) that prevented Mr. Wickard from growing excess wheat, did make his actions a violation of the law, just like possessing marijuana is. While I’m not certain what the penalty for violation of the AAA was, it seems to me that Mr. Wickard’s actions were just as "illegal" as Ms. Raich’s were. Thus, the fact that the decision in Raich deals with "contraband" as opposed to an acceptable commodity such as whole grains, seems to me to not matter at all. If one does not think Wickard to be a
legitimate use of the commerce power, I fail to see how they could support the decision in Raich, unless they impose their personal political preference in opposition to the legalization of marijuana. Opposition to marijuana is perfectly reasonable, in fact, I personally agree, but I’m not sure that the two positions are consistent.
I personally think Wickard was properly decided, or at least can be defended, thus I’m not
as troubled by the Raich decision. While I would have liked a better opinion from the majority, the result is acceptable. I’ll close with this thought, the next big "commerce" case may deal with the State of Oregon’s assisted suicide law, I’m sure Raich will have an influence there and
we may have to wait for that decision before concluding with any certainty what Raich means.
# posted by mouldfan : 8:35 AM
