SharksWithLasers -- Seth Cooper

A CUTTING-EDGE BLOG FOR THE WORLD OF THE 21st CENTURY, Currently operated by Seth L. Cooper, a 27 year-old attorney in Seattle (sethlcooper at comcast dot net)

Tuesday, November 30, 2004

LEGAL BRAINS ON DRUGS. I do not like drugs. I have never used drugs. I never plan on using drugs. I have no desire to use drugs. I am opposed to the legalization of drugs. To borrow a term from my generation: drugs suck. Nonetheless, the U.S. Congress does NOT have the power under the Commerce Clause to prohibit the mere possession of marijuana for private, personal and (supposedly) medicinal use. Such a prohibition is not a regulation of interstate commerce, nor does the possession substantially effect interstate commerce, nor does regulation substantially relate to any interstate commerce regulatory end of Congress.

Yesterday, the Supreme Court heard oral arguments in the case of Ashcroft v. Raich. The case comes on appeal from the Ninth Circuit, where the majority of a three-judge panel held that, as applied to a person merely possessing marijuana for personal use, the Controlled Substance Act is unconstitutional under the Supreme Court’s recent commerce clause jurisprudence (i.e., the Lopez and Morrison cases). Randy Barnett, a Volokh Conspirator and the author of an interesting book called Restoring the Lost Constitution, argued the case on behalf of Raich. (I was fortunate to hear Prof. Barnett give a talk on his book at a Federalist Society at Seattle University this past spring.) Legal Theory Blog has a detailed overview of the case and the oral argument.

The outcome in this case could hinge upon how expansively the Court interprets the “aggregate principle” that first appeared in the New Deal-era case of Wickard v. Fillburn. In that case, a farmer was penalized under the Agricultural Adjustment Act for growing corn on his own property for his own personal use, exceeding the quota set for him by the federal government. The farmer argued that his activity could not be prohibited under the Commerce Clause. The majority of the Court disagreed, with Justice Robert Jackson writing that while the farmer’s activities may not constitute interstate commerce, if several other people copied such activities, there would be a substantial effect upon interstate commerce. It was upon this reasoning that the Court found that Congress had the power to regulate such an activity.

One of Barnett’s apparent arguments, among others, is that the “aggregate principle” should not apply to Raich because the commercial trafficking of cannabis is itself illegal, and his possession therefore cannot have any substantial effect on interstate commerce. Conversely, in Wickard v. Fillburn, the selling of corn was entirely legal. I agree with the Ninth Circuit majority panel, whose opinion I read last night, and I agree with Prof. Barnett’s argument.

My former law professor, David Engdahl, has argued that the “aggregate principle” and the entire “substantially effects” analysis is misguided and incorrect. I agree with him. Prof. Engdahl has suggested, in Constitutional Federalism and elsewhere, that the correct analysis requires one to ask whether the regulation of the activity in question is substantially related to the Congressional policy end of the statute. Thus, the emphasis is not upon what the activity effects, but upon the telic, means-ends relationship between the activity being required and the Congressional policy goal. I am oversimplifying for the sake of this blog post, but I believe Prof. Engdahls analysis makes much more sense than the current taxonomy for understanding the reach of the Commerce Clause, as provided in Lopez and Morrison.

I have long admitted to being a fan of Alexander Hamilton’s views of the Constitution and am by no means a Jeffersonian strict constructionist. Yet it is abundantly clear that the “substantial effects” test and most certainly the “aggregate principle” can easily be interpreted to encompass virtually every kind of activity imaginable, and such a broadly construed Commerce Clause is incompatible with the Constitution that set up a government of limited and enumerated powers.

(Downtown Seattle, WA)


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