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)

Wednesday, June 08, 2005

MUCH-NEGLECTED CLAUSE MAKES A COMEBACK--SORTA. The U.S. Supreme Court's ruling that Congressional power extends to a prohibition of private, non-commercial use of marijuana for medicinal purposes pursant to a state law in Gonzales v. Raich has garnered much attention. This was another case that implicated the parameters of the Commerce Clause of the U.S. Constitution. For me, however, what was particularly intriguing about the case was the attention paid to the Necessary & Proper Clause--a Clause that has been paid scant attention in recent...well, decades.

Justice Scalia brings a clarity to the extent of the Necessary & Proper Clause's operation that had heretofore been unseen in Commerce Clause cases. In this regard, I found his concurring opinion the most interesting and exciting. Justice Scalia discarded the notion that Congress cannot regulate non-commercial activities or wholly intrastate activities, per se. Instead, he reoriented the analysis to legitimate means to Congressionally appropriate ends (the "necessary" component of the Necessary & Proper Clause). Additionally, Justice Scalia took note of the "proper" component of the clause as it pertains to state sovereign immunity. Previously, the state sovereign immunity cases seem to have focused almost entirely upon the Tenth Amendment.

At this point, I still have to gather my thoughts as to whether the Controlled Substance Act can extend to the defendants in the case. Arguably, one could hold to the framework enunciated by Justice Scalia but find that Congress' power to regulate still does not reach the activities involved in the case. But I can say that I'm clearly of the view that Justice Steven's application of Wickard v. Fillburn's "aggregate effects" test undermines the enumerated powers provided in Article I, Section 8 of the Constitution. Further, Justice Thomas has some worthwhile points in his dissenting opinion.

(North Seattle--Green Lake, WA)

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