Its not completely deviod of controversy ;).
In Wickard the individual in question was engaged in commercial farming whereas in this case no commercial farming is taking place. This case takes the leap from commerce to apparently anything that Congress feels affects any commerce anywhere.
The wheat in Wickard was not grown for commercial use. It was used entirely on tthat farm, for personal use.
If by personal use you mean wheat to feed his commercial livestock and selling the excess:
*using the wheat
I should have been more clear. The REACH of the Act at issue in Wickard is to all wheat, even if used completely for private uses. Period.
Has to be commerce, or a commerical activity. Growing marijuana plants is considered a commerical activity (growing crops can affect supply and demand and marijuana is an agg crop… simply because it is illegal doesn’t mean that isn’t commercial anymore). Growing crops is considered part of the commerical process (manufacturing). Something like sex, by itself, is not commerce. The act of sex is not considered commercial, well unless someone is paying you for it ;).
Growing crops is considered a part of commerce. The Court would not consider carrying a gun, domestic violence, or having sex to fall under that.
Besides, before the 90s, the general perception among lawyers and in the law was that the Congress could regulate anything under the Commerce Clause. Lopez and Morrison were the cases that put some brakes on that, saying they had to have some relation to commerce to invoke the Commerce Clause.
Sorry to abandon the discussion yesterday after helping to get the ball rolling. I had no idea work was going to be a disaster yesterday. But I’m back, sort of.
OK, but the Supremes, without reversing precedent, can narrow the scope of a previous Supreme Court ruling by distinguishing one case from another, and so forth. If practiced enough, it’s possible for them to distinguish a precedent almost out of existence without ever formally reversing themselves.
Based on what treis has just posted, ISTM there’s lots of room to distinguish the present case from Wickard, given that Wickard was raising grain as part of a commercial operation - the grain wasn’t sold, but the animals fed with it were. But the pot one grows and smokes oneself isn’t commercial. So I think they had room to rule differently, if they wanted it.
I’m also in John Mace’s corner when he insists (by implication, at least) that there has to be something outside interstate commerce for the clause to mean anything. Seeing no difference (from a Commerce Clause perspective) between the marijuana in somebody else’s garden and the tomatoes in my own, I’m having a hard time coming up with an ‘outside’.
And FWIW, there’s nothing inconsistent in believing that a Constitutional provision should have great reach while believing its reach shouldn’t be unlimited. Now if Bricker or someone else can come up with an example of a ruling that stretches the Commerce Clause at least as far as the present case, whose reversal would upset me, then I would admit the necessity of having to choose.
True, but the Court went farther with there holding and basically said that if the grain was just being grown for subsistence farming, it’d be subject to the Commerce Clause. One reason being if they didn’t grow it, they’d have to buy it elsewhere, and the other being it impacts supply and demand.
And of course, commerce has undergone a revolution even since the 1930s in how interconnected everything is.
[Love and Death]
“Did you say…wheat?”
[L&D]
The decision itself, though, decided a particular case, which was about particular wheat. IANAL, but isn’t there a distinction, in the law, between the direct implications of the instant decision, and how broad a reach the Justices claim for the decision? My dim recollection is that subsequent courts can chip away at what earlier Courts said was included in the sweep of their ruling, without being particularly dramatic about it, if it wouldn’t invalidate the effects of previous decisions. (This isn’t a rhetorical question; I’m asking you as the legal expert, Bricker.)
Remember, too, the standard:
(Emphasis added).
Congress does not have to be right about the connection to commerce, it just has to have a rational basis for thinking the connection exists.
And see the other mecidal marijuana thread for more discussion of commerce clause nuts and bolts. http://boards.straightdope.com/sdmb/showthread.php?t=319976
So you’d be ok with a Federal law against prostitution? How about one legalizing it?
The Commerce clause is not about commercial activity at all, it’s about interstate commerce.
Why not? What is the principled distinction? I doubt that most guns are manufactured in the same state in which they are purchased. If I can’t carry a gun, I’m less likely to purchase it. My purchase of it affects interstate commerce just as much as my eating wheat that I grow myself or smoking locally grown pot in my house.
I haven’t looked at this issue in a while, but generally most commerce clause cases are, as I pointed out above, decided on whether Congress could have had a rational basis to conclude that the regulated activities, taken in the aggregate, substantially affect interstate commerce. So a case like this is never about the parties. It is about whether the regulated activity as a whole can affect interstate commerce. And even then, it’s not about whether Congress got the right answer, but only about whether Congress had any reason to believe that it did.
Supposing a state were to take it upon itself to grow the pot and distribute it to patients who had a prescription from a doctor. The state controls all the inventory, and supplies it ONLY to folks who have a prescription. Would the feds still be able to interfere? How could this state controlled pot be said to be part of the interstate commerce of illegal pot?
What if the state were to GIVE it away to patients with a prescription, and so there is no commerce involved at all?
Here is my rough draft of the opinion:
etc. . .
You may have noticed judges like to quote themselves. 
In short, this case held that use of locally grown pot affects interstate commerce because people might sell it.
The fact that there is a prescription is irrelevant because under the act discussed in the case, pot is a Schedule I drug, which means that, according to the feds, there is no currently accepted medical use. Since Congress has occupied the field, the states can’t overrule Congress’s determination on this issue. http://www.law.umkc.edu/faculty/projects/ftrials/conlaw/preemption.htm
Similarly, the fact the pot was free, would only creat more of an incentive for recipients to sell it.
Let’s try “The fact that the pot was free would create an added incentive for recipients to sell it.”
Yeah. I think that definitely can arise under the Commerce Clause.
The substantial effects is key here. In our interconnected economy, just about any commerical activity has substantial effects on interstate commerce.
Purchasing a gun does affect interstate commerce. Carrying it around, near a school zone, as the case says, isn’t a commercial activity. And I’m not sure that not being able to carry a gun around on the streets would make people less likely to purchase them (most guns are left at home and most of those that aren’t are used for hunting which AFAIK isn’t banned in any state). Banning them from ownership perhaps would ;).
IIRC, the Brady Bill was based on the Commerce Clause. Purchasing is no problem to be regulated. Walking around with one, near a school or something, is not a part of commerce.
Growing a crop, OTOH, is a commercial activity (production of a good), even if that particular good will not be sold. Or at least it is reasonable for Congress to say that growing is part of the commerical process while it isn’t reasonable to say the same about walking around with a gun.
To think of it another way, imagine a small gun factory which only builds guns from materials found in state whose goal is to arm its plant workers because it believes that is what the 2nd Amendment allows every person to have a gun and they want one. So, it doesn’t sell these guns, but gives them to the people who work at the plant. The production of those guns would be a commerical activity, even though nothing is being sold.
That’s the reasoning the King County Bar Association puts forward, in their proposed scheme, for regulating psychoactive substances in Washington state.
See? Now you understand why we, in the Netherlands, have a ‘state supplier’ for medicinal marijuana. This is not because we need it, technically, because people are allowed to grow in their own homes, but if people buy it from others they take part in what is technically still a criminal activity. Also important is that THC levels and quality can be monitored more closely, even though I’m sure there are some clandestine growers out there who can produce a better product.
That is not to say everything is perfect here. We also have legal coffeeshops, but these do not have access to legal suppliers. They don’t exist. Basically, they can only acquire their pot illegally, unless they require pot smokers to bring their own weed, so that all pot smokers will also have to be growers or something similar.
Some mayors (like Geers, from Maastricht) are now calling for also allowing legal suppliers to produce marijuana and sell that legally to coffeeshops. I think that would be a good idea also, but here we have a problem. We have a Schengen treaty allowing free passage for residents of the EU who have signed that treaty. And our Schengen neighbours are legally and officially somewhat less liberal in their view of marijuana, but at the same time a large part of their residents are fond of the ‘product’. So they frequently make use of the open borders to come visit our coffee shops.
These coffee shops, and indirectly also their neighbourhoods, are suffering from this. Especially in the countries where marijuana is illegal, marijuana production AND sale are completely in the hands of criminal organisations. The Dutch coffeeshops usually aren’t, but because they have to buy their product illegally, they are under constant pressure from these criminal organisations, who want to control them and/or be their ‘preferred supplier’. Of course, government is aware of this, so from the other side these coffeeshops are under strict scrutiny and held on a tight leash in the form of easily retractable licences.
I think that in theory, most people/politicians in the Netherlands understand that we would all be better off if production were legalised. However, the fear of neighbouring countries is that we’d become a legal export country. France has threatened for less to close their borders with Belgium again. And therefore the silent agreement is that as long as we won’t fully legalise marijuana, they will leave us alone.
That is a situation that, in my opinion, has a definite expiry date. I think the hope in the Netherlands is that the other countries will come to realise that legalisation is the best way to deal with marijuana, taking it out of the hands of criminals. But it’s a very slow process and although, for instance in the UK, even the police themselves have agitated against the waste of resources on something that does not constitute a problem (recreational use of marijuana), is still impopular with politicians. I think that if all users in the UK would stand up and say they will vote for whichever party legalises marijuana, all three major parties would probably put it on their agenda immediately.
Sounds like a completely arbitrary distinction to me. BTW, while the word “commercial” appears in Lopez, that’s not the test. The test is what I quoted earlier.
[quoteIIRC, the Brady Bill was based on the Commerce Clause. Purchasing is no problem to be regulated. Walking around with one, near a school or something, is not a part of commerce.[/quote]
What else could the Brady Bill have been based on?
Again with “commercial.”
Now as long as we’re applying the wrong standard, let’s take it another step: guns are frequently used to commit crimes–including the sale of drugs, which the Court has already held is part of commerce. Why isn’t it reasonable for Congress to say that carrying guns around schools is part of the commercial process?
I agree. That being the case, why isn’t the criminal possession of them equally part of the same process?
You’ve just shown all that you need to invoke the commerce clause. Someone somewhere pays for sex therefore the Federal Government can regulate sex as long as they have a rational basis for what they do. Congress could for example pass a law requiring a STD examination and a permit stating the parties for everyone before every sexual encounter by way of regulating prostitutes. All Congress has to do is say something along the lines of we believe these tests will reduce prostitution by limiting the amount of times a prostitute can have sex.
Congress could ban lesbian sex on the basis that lesbians engaging in sex increases the demand for dildos. [Although in this case Loving may be more pertinent.]
Congress could ban sex with your spouse on the basis that it would encourage single people to purchase a mail-order bride.
Sex (a service) without an exchange for money is no different than growing pot (manufacturing) without selling it.
That is my problem with this case (Or if you want to go back to Wickard either way). It gives the Federal Government power in areas that are completely at odds with what is in the Constitution. Its as though the Court was following instructions on building a pool and ended up with a barn in the Wickard ruling. The correct thing to do in thi scase would be to say ‘oh shit thats not right’ and either limit Wickard or overturn it. Instead its as though the Court looked at the barn and said welp its a barn now so we gotta let cows in.