June 6, 2005

Who was inconsistent about federalism in Raich?

On the eve of the oral argument in Raich, I wrote:
[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.


Attila Girl said...

I think a lot of gun control supporters would maintain that liberal gun laws in an adjacent state do undermine their attempts to reduce guns, and "gun violence."

BJR said...

I think Scalia is perfectly consistent. Scalia's view of precedent is that workable, settled precedent is generally followed, though I think he has been inconsistent in what he thinks is settled. Here, Wickard is settled law, and it would be quite a intellectual exercise to rule against the federal government here without overruling Wickard. Lopez and Morrison did not question Wickard, and that is the line Scalia draws. Note that Scalia did not join Thomas's concurrence in Lopez interpreting the commerce clause as an original matter. Both Scalia and Thomas have been consistent.

I think this case highlights the most important thing a justice must decide: what policy of stare decicis to have for constitutional issues. Thomas and Scalia basically disagree only on this question and it leads to what I think are by far the most interesting discussions on the court today.

Ann Althouse said...

Attila Girl: But how would a law forbidding a gun within 1000 feet of a school in one state affect another state? Congressional bans on selling particular guns are upheld under the Commerce Clause. If one state tried to outlaw guns and another state didn't, people would travel across the line to buy a gun. But the Gun Free Schools Zones Act didn't do that.

BJR: You've still got to intepret Wickard though, and there was reference to a commercial/noncommercial distinction in Lopez, along with reference to the fact that the regulated farmer was engaged in a commercial enterprise.

You're right that Thomas is less deferential to precedent.

JB said...

I agree with you Prof. Althouse. A number in the blogosphere seem to be in a tizzy about the hypocritical federalism. But I suppose I'm seeing it in much the same way you do.

Attila Girl said...

Ann, here's my reasoning; tell me what you think.

Draw a circle around each school, and give the circle a 1000-foot radius. If all those who live within that radius may not buy guns, you actually end up with a lot of residences within that circle, particularly in towns that have apartment buildings near the schools.

Let's say there are five public schools in each town, and each is encircled by apartment buildings. When you multiply that by all the towns in the state, you end up with a lot of households whose members are prohibited from owning guns. Multiply that by the number of adults in the household (which probably averages two or so), and that's a lot of people who are barred from gun ownership.

I think that would suppress the numbers of guns available to the point that it could easily affect both the legitimate gun market, and the black market in stolen guns--which would surely have an effect on citizens in a neighboring state, and their abilities to purchase firearms (both legitimately, and "off the record").

Ann Althouse said...

Attila Girl: The Gun-Free School Zones Act did not reach the residences of people living near schools, and it would have been a very different problem if it had. The law excepted that possession. Congress was not really trying to do something to the market for guns. That was plain. It was trying to deter people from taking guns into schools. Of course, people might buy fewer guns if they couldn't take them to school, but Congress's goal was to stop violence in schools, a goal that states shared, but might want to go about pursuing in a manner other than a hardcore lock-'em-up approach. Since children and schools are a traditional area of state concern and states could deal with it with decentralized, diverse approaches -- useful policy experiments -- the Court saw the attenuated connection to commerce as insufficient.

Al Maviva said...

I think you misapprehend Wickard and its relationship to Lopez, and I believe in Lopez Justice Rehnquist makes this clear: Wickard, was about the effect of home grown grains of wheat - but in the aggregate, even homegrown wheat affected commerce because growing wheat is a commercial activity, and the regulation of such commercial activities is federal business, if the fed so wishes. Regulating the carrying of guns in school zones, however, isn't really a federal matter because guns that are simply carried around aren't really "in commerce" - very few people are buying or selling school zone violence. Moreover, the nature of the power exercised - a general police power - is denied to the fed and reserved for the states.

If you think about it, today's holding helps reconcile Lopez and Morrison with two other federalism cases, Printz, and NY v. U.S. The fed cannot usurp the state's ministerial powers (NY, Printz); nor can it usurp the state's general police power (Printz, Lopez, Morrison); and it can't avoid these road blocks by micromanaging state efforts in these areas (NY, Printz, Lopez); but it can still regulate things that are in commerce (Lopez, Raich).

Ann Althouse said...

Al: As I say in my original post, I don't think the commercial/noncommercial distinction is the best way to understand Lopez. It is one way to understand it, however. I'll definitely grant you that. But I granted you that in my original post, so I won't concede that I "misapprehended" anything!

Al Maviva said...

Sorry Ann. That was directed at Atila Girl - you slipped in a post a moment before I hit send.

SteveL said...

I agree with you professor Althouse, but I think the minority in this case would have had to overturn Wickard. Many acts justified under the commerce clause in the last fifty years are shaky at best, and the true libertarians/federalists would like to see them go. Scalia just doesn't go that far. Thomas does.

The example I use is OSHA, if you can't regulate a product traded in interstate commerce (marijuana) how can you justify a sweeping regulatory scheme and agency based on this: "The Congress finds that personal injuries and illnesses arising out of work situations impose a substantial burden upon, and are a hindrance to, interstate commerce in terms of lost production, wage loss, medical expenses, and disability compensation payments."

Workplace safety lends itself to your analogy on school safety, and no state's approach would directly undercut another's (businesses might relocate, as students might relocate to safer schools).