[I]t will be interesting to see the response of those who have harshly criticized the majority's recent federalism decisions and have professed abject deference to Congress and the Executive branch about federalism matters. From a liberal perspective, one might want to think: I support the enforcement of federalism limits when federalism is really a stand-in for individual rights, and I support strong federal government power when the federal policy in question is really a stand-in for individual rights. But it is rather hard to translate that instinct into sound constitutional law.In today's decision, the Court's liberals -- all in the majority -- did not attempt to work out a tricky position of that sort. They stuck with their deference to Congress.
Conservatives faced a dilemma too, I wrote at the time, but only "if their conservatism is the kind that puts great importance on strong anti-drug enforcement."
But conservatives who take the libertarian position on drugs can happily seize a two-fold opportunity: they can demonstrate a principled fidelity to constitutional federalism and, at the same time, improve federalism's reputation among liberals.Three of the Court's conservatives did take the side of the state, but Justice Scalia did not. Should we aim special criticism at him?
Scalia emphasized Congress's power to regulate what is certainly an interstate market. He notes that the Lopez Court said that private gun possession could be regulated as “an essential part of a larger regulation of economic activity, in which the regulatory scheme could be undercut unless the intrastate activity were regulated.” But there wasn't any scheme of regulating an economic activity that depended on banning the possession of guns only within a 1000-foot radius of a school, the law in question in Lopez. The Controlled Substances Act at issue in Raich is completely different. It regulates an interstate economic activity, the marijuana market, and that scheme would be undercut if it didn't extend to homegrown marijuana -- even homegrown marijuana used medically.
I'm sure many people will accuse Scalia of faltering in his support for federalism. But I have always thought the best way to understand Lopez is not by the commercial/noncommercial distinction, but by whether the regulated intrastate activity is part of a connected web of interstate activity. We can picture individual states making diverse, decentralized decisions about how to deal with violence in schools -- the interstate activity in Lopez -- without the policy in one state interfering with the approach chosen by another. One state's experiment with gun-exchange programs and parental responsibility laws doesn't undercut a tough imprisonment policy used in the next state. You don't need a uniform national law to deal with the problem. In fact, the different state policies work as experiments, generating information about which policy works best. But if it is to be possible to ban marijuana, a uniform national law is important. One state's lenient approach would undercut the next state's hardcore approach. That's the Lopez-based argument for congressional power in Raich.
I supported the Court's decisions in Lopez (and Morrison) precisely because of this kind of analysis (and not because of any economic/noneconomic distinction), so Scalia's opinion makes sense to me. I'm going to defend him against the accusation that he's turned his back on the Court's federalism doctrine.