There's been a lot of anger about SCOTUS's Raich decision today (the medical marijuana case). Raich is perhaps the biggest bamboozlement the right has pulled on us this year--by picking a "liberal" cause the right disguised their real agenda--getting rid of the Commerce Clause. More on the flip.
The ultimate goal of the EcoCons and LibertarianCons, who were the forces behind this case, is the elimination of all federal economic regulation. Period. Some of these folks have TheoCon tendencies (witness O'Connor's notation in her dissent that she would not support medical marijuana as a legislator), but think that the economic/federalism point is the most important. They're willing to have to settle for medical marijuana, as long as we eliminate child labor laws. The brilliance of what they've done here is that they've managed to build a right-left coalition. The right who wants to discard the economic regulation is joined by elements of the left who despise this particular regulation so much that they're unwilling to see the consequences long-term.
So, what I'm going to do is focus on the commerce clause and its jurisprudence, giving you a whirlwind tour.
The constitutional language at issue in Raich is the Commerce Clause, which says that Congress shall have the power "To regulation commerce with foreign Nations, and among the several States...[and] to make all Laws will shall be necessary and propoer for carrying into execution the foregoing powers." So, what does that mean? Let's take a tour, which I'm going to divide into broad sections:
The Early Years--1787-1865
Commerce Clause issues weren't a big deal through much of the early Republic. The major case is:
Gibbons v. Ogden (1824)--In Gibbons, two steamboat operators feuded over licensing. New York and New Jersey jointly granted Ogden a license to ship up and down the Hudson. The federal government opened up a shipping licensing, and Gibbons obtained a federal license for the same territory. SCOTUS held that the federal government could issue such licenses, and they take priority over the state licenses.
Reconstruction and its Discontents--1865-1877
Slaugherhouse Cases (1873)--Not really a "commerce clause" case, but still important because it expressly rejects the idea that the 14th Amendment provides an additional basis for the exercise of federal power. Federal governmental power is based on the Commerce Clause and nothing else.
Lochner and the Pre-New Deal Era--1878-1936
United States v. E.C. Knight (1895)--Effectively temporarily suspends enforcement of the Sherman Anti-Trust Act because "local" sugar refining is not subject to regulation, even though it may have an effect on interstate commerce and is part of a chain.
Northern Securities Co. v. U.S. (1904)--Effectively overrules Knight, saying that anything that plays a role in the chain of interstate commerce at any level could be subject to regulation.
Hammer v. Dagenhart (1918)--Congress had passed a statute banning goods made with child labor from interstate commerce. SCOTUS strikes this down, finding that manufacturing is separate from commerce, and that the gederal government cannot regulate. Court claims that if this is sustained "all freedom of commerce will be at an end."
Schecter Poultry v. U.S. (1935)--Among other things, invalidated a statute regulating the poultry industry nationally as outside the Commerce Clause power as inappropriate.
U.S. v. Butler (1936)--Rejects a spending provision that taxes some producers of agricultural products and gives the remainder to those who restricted production as inappropriate. Also, squarely rejects any idea that the "general welfare" clause can be the basis for a regulation.
This is what the folks behind Raich want to return us to. Effectively, almost no federal regulation of anything because it's "manufacturing" and "local" rather than "interstate commerce."
Getting It Right and the New Deal--1937-1992
This is what the folks behind Raich think we need to give up. I'm not so convinced:
NLRB v. Jones & Laughlin Steel (1937)--Prior labor-related acts giving protection for unions had been struck down. This challenge to the NLRA reversed all of that. Protections for unions are declared constitutional.
U.S. v. Darby (1941)--A law prohibiting shipment in interstate commerce of goods that were not produced in compliance with hours, wage, and child labor standards was upheld. This explicitly reverses Hammer.
Wickard v. Fillburn (1942)--Filburn grew wheat in his backyard and exceeded a quota set forth in the Agricultural Adjustment Act. He challenged this quota as exceeding the Commerce Clause. Squarely rejects the idea that agriculture is purely local, and was what the plaintiffs in Raich sought to overrule.
Heart of Atlanta Motel v. U.S. (1964)--The Civil Rights Act banned discrimination in "public accomodations." An Atlanta motel challenged it, saying that its activities were effectively purely local--it offered housing in Atlanta. This is rejected.
Katzenbach v. McClung (1964)--A restaurant in Birmingham, AL said that since it was purely local, making its food locally, buying its food locally, etc., it could not be subjected to federal regulation. The court rejects this, saying even Ollie's BBQ must comply.
The "Federalism Revolution"--1992-Present
U.S. v. Lopez (1995)--The "Gun Free School Zones Act," banning possession of a gun on school premises, goes beyond the Commerce Clause's right to regulate.
U.S. v. Morrison (2000)--Provisions of the Violence Against Women Act granting women the right to sue offenders in federal court for gender motivated violence are unconstitutional.
Here's what it boils down to--those behind Raich want to take the "Federalism Revolution" forward, knocking down everything back to Butler and Schecter Poultry. They're not in it (much as some may claim they are) for "individual rights," they're in it to fight against economic regulation. I'm not fond of the federal government's drug policy either, but, in my view, it's beyond question that they should have the power to create drug policy of this sort. To say otherwise is to roll back the sea change in constitutional law we saw from the 30s through the 60s, giving the federal government power to right wrongs.