Bricker, Wickard was by far the high water mark of the New Deal decisions. One needn’t be a hypocrite to disagree with the reasoning and result in Wickard while agreeing with the other cases of the time. So yeah, we can have it both ways in that respect.
The two decisions are precisely similar, and based on a source of legal doctrine which is usually examined by a doctor wearing a rubber glove.
Consider that a mere decade and a half earlier, it seems to have simply not occurred to anyone to avoid all the bother of amending the Constitution by simply pulling a prohibition power out of some emanation of a penumbra of the Commerce Clause. Even in its time, the decision was radical.
Can you explain your reasoning? Just stating your opinion, as you have done here, isn’t really meaningful. How are the decisions materially different?
No, I don’t agree – except if your basis for drawing the line is simply that you agree with the result. Any other rationale you care to advance is simply rationalization: deciding what you want the result to be, and then crafting a test or line to allow you to distinguish cases to reach your desired result.
Convince me otherwise. What is the principled, non-results-based rationale that makes Wickard wrong but other New Deal decisions right? (Or, if you prefer, what makes Wickard right and the instant case wrong?)
When I say “non-results-based” I mean a rationale that has the Court simply interpreting the law, not crafting policy.
Let’s get on the same page first. When you say “New Deal Commerce Clause decisions,” to what are you referring? I’m assuming you’re not talking about Warren Court Commerce Clause cases like Katzenbach v. McClung and Heart of Atlanta, right? I also assume you’re not talking about New Deal cases like West Coast Hotel that don’t deal with the Commerce Clause. So you’re specifically referring to Darby and Jones & Laughlin. Is that accurate?
(By the way, how would you have decided Heart of Atlanta?)
Indeed. I’d like someone who defends this decision to explain exactly which kind of intrastate commerce the feds can’t control, and why. This decision makes a mockery of the commerce clause.
And **Bricker **is exactly right here. This is a perfect example of a decision most of the folks on this board will disagree with, even though the process by which the court arrived at it is no different than that used to arrive at decisions with which many do agree.
I read the court text above and that’s indeed what it seems to come down to. How long before marijuana will be recognised for its medicinal use on a federal level, is the question now.
In the Netherlands, we’ve monopolised marijuana production for medicinal use to one state controlled manufacturor, to make sure the distinction between illegal (production of marijuana is still illegal here, but you can have up to 5 plants for personal use or something like that) and legal marijuana is clear.
Can you name some of those decisions, please?
Bricker already did, in post #17. The process, as he also already outlined, is starting with a desired result, and expanding on the original intent of the constitutional authors to find a rationale for that result (although I might disagree with him about Lawrence).
I can’t even believe that this is a significant enough issue to get to the desk of a higher-up politician, much less become a federal law. Granted, I reside in British Columbia, so I have a bit of a different perspective, but I’m currently in Denver on business and am awed that this is front page news (USA Today).
What is it about THC that makes it so different from alcohol, nicotine or any common OTC drug, that makes user responsibility an insufficient control?
Justifiable judicial activism? :rolleyes:
There’s the textualist analysis. To be fair, most of it is drawn from other cases, not from the Constitution itself. So this case seems to be built on previous cases rather than the underlying Constitution’s text, even in Scalia’s opinion. Probably a good case to use in the future to demonstrate that constitutional decisions, like those by the SCotUS are not all that far removed from amendments in the legal hierarchy.
Enjoy,
Steven
Bricker said it well, but Debaser said it more succinctly.
A stupid decision, and an illegitimate power grab by the feds.
Regards,
Shodan
I’m sorry; I thought your critique was targeted at the specific type of analysis used in this case concerning interstate commerce. Lawrence, Roe, etc. have nothing to do with interstate commerce. I didn’t realize you were using this case as a typical broadside against non-originalist jurisprudence. Can you make any showing whatsoever that the above decisions are any more results-oriented than any other cases for which original intent is disputed or ambiguous? (I can come up with a number of them in which both conservative and liberal justices tortured the intent of the framers into supporting their personal constitutional vision.) You’re basically accusing the justices of deciding which way they want to rule and then trying to reverse-engineer the result to find reasoning that works. What evidence do you have that this is the case, rather than the justices simply having a different understanding of constitutional interpretation than you do?
Do you think the Administrative Procedures Act is unconstitutional?
Perhaps I shouldn’t have said “New Deal,” because that’s unnecessarily limiting. I’m talking about abuses of the term “commerce” that arise in Caminetti v. US and Cleveland v. US.
I have no problem with Katzenbach v. McClung and Heart of Atlanta.
I have a bit of heartburn with National Labor Relations Board v. Feinblatt (same problem I have with Darby and Jones & Laughlin), and a big problem with US v. Wrightwood Dairy.
Given the record’s showing that Heart of Atlanta motel actively solicited interstate travellers by advertising and the finding that 75% of their guests were from out of state, I would have had no problem finding that their policies burdened interstate commerce and were subject to Congressional reach.
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It’s probably just a new doctrine waiting to be born: Substantive Due Commerce.
If you agree with Heart of Atlanta and (especially) Katzenbach, then you’ve answered your own question about how I would principledly distinguish Wickard as an outlier even in its own time.
From Katzenbach:
The Court answered yes. You’re cool with that?
I’ll take a look at, and respond to, the cases you cited in a bit, when I get another free moment.
Yes, based on what I just quoted, I’m cool with that. While the dollar value of the food may not be gigantic, the fact is that a substantial portion of the food was procured via interstate commerce.
Great, so there’s the principled distinction. Wickard and this new case concerned goods that were produced, moved, and used wholly intrastate, yes? If the problem here is with the “substantial affects” prong, why does that implicate caselaw that either applied that prong in a much more reasonable fashion or didn’t need to apply it at all? Thus…one can be a liberal and oppose the result of this decision without trying to have it both ways. (For my part, I oppose it because I’m a liberal with a strong belief in states’ rights where appropriate–something I might turn into a thread later today. That doesn’t make me a hypocrite for supporting those New Deal decisions that, to my view, justifiably upheld the exercise of federal power.)