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Cases Affected by Raich

Since United States v. Morrison, there have been many federalism defeats, and only four federalism victories.  Should the Court reverse the Ninth Circuit's decision in Raich, McCoy (CA9), Stewart (CA9), and Maxwell (CA11) will certainly be reversed.  Indeed, as Marty Lederman notes here, the government has already petitioned for cert. in Stewart.

Anyhow, a summary of federalism victories is set forth below.

In United States v. McCoy, 323 F.3d 1114 (9th Cir. 2003), a 2-1 panel wrote:

[This child pornography law is] unconstitutional as applied to simple intrastate possession of a visual depiction (or depictions) that has not been mailed, shipped, or transported interstate and is not intended for interstate distribution, or for any economic or commercial use, including the exchange of the prohibited material for other prohibited material.

In McCoy a mother was convicted under federal child pornography laws for taking pictures of herself and her daughter with their genital areas exposed. The government could not prove that mom took these pictures for commercial gain; and the pictures never crossed state lines.

In United States v. Stewart, 348 F.3d 1132 (9th Cir. 2003) (Kozinski, J.), a 2-1 panel held that Congress lacked authority under the Commerce Clause to criminalize possession of a home-made machine gun. In Stewart the defendant rigged his semi-automatic gun to fire automatically. The Ninth Circuit reversed his conviction, even though some of the parts used to modify his gun moved through interstate commerce. Wrote Judge Kozinski:

Indeed, some of the machinegun parts did move in interstate commerce. At some level, of course, everything we own is composed of something that once traveled in commerce. This cannot mean that everything is subject to federal regulation under the Commerce Clause, else that constitutional limitation would be entirely meaningless. As Lopez reminds us, Congress’s power has limits, and we must be mindful of those limits so as not to obliterate the distinction between what is national and what is local and create a completely centralized government. Id. at 1135 (quotation marks omitted)

In Raich v. Ashcroft, 352 F.3d 1222 (9th Cir. 2003), cert. granted, 124 S.Ct. 2909, 72 (U.S. Jun 28, 2004), a 2-1 panel held that the Controlled Substance Act, to the extent that it criminalizes the use of marijuana not purchased nor obtained interstate, was an unconstitutional exercise of power under the Commerce Clause. Wrote Judge Pregerson:

The cultivation, possession, and use of marijuana for medicinal purposes and not for exchange or distribution is not properly characterized as commercial or economic activity. Lacking sale, exchange or distribution, the activity does not possess the essential elements of commerce. Id. at 1229-30.

Finally, we have United States v. Maxwell, 2004 WL 2191801 (11th Cir., Oct. 1, 2004) - digested here - where a unanimous three-judge panel held that Congress may not criminalize the intrastate possession of child pornography, even if the child pornography is kept on items that moved through interstate commerce. In Maxwell, the defendant kept his child pornography on diskettes that moved through interstate commerce. However, the prosecution could not establish that the pictures on the disks were taken outside of Maxwell's home state of Florida. Thus, the law was unconstitutional as applied to him.

Would you like a Little wine with your Commerce?

I had the pleasure of mooting one of the oral advocates in the upcoming "wine wars" case.  It required me to do a lot of research, which I am going to share with you in four parts over the next two weeks.  Part 1 (see below) will introduce you to the facts and procedural history.  Part 2 will discuss the dormant Commerce Clause and Part 3 will focus on the Twenty-first Amendment.  Finally, Part 4 will discuss what play in the joints, if any, there is between the dormant Commerce Clause and Twenty-first Amendment.

Part 1. Procedural history and facts

Interstate Wine Shipment Cases

SUBJECT: Dormant Commerce Clause; Twenty-first Amendment; Interstate Wine Shipment

CASES UNDER REVIEW: Swedenburg v. Kelly, 358 F.3d 223 (2nd Cir. 2004), cert. granted in part 124 S.Ct. 2391 (U.S. May 24, 2004) (No. 03-1274); Granholm v. Heald, 342 F.3d 517 (6th Cir. 2003), cert. granted in part, 124 S.Ct. 2389 (U.S. May 24, 2004) (No. 03-1116); Michigan Beer and Wine Wholesalers Association v. Heald, 342 F.3d 517 (6th Cir. 2003), cert. granted in part, 124 S.Ct. 2389 (U.S. May 24, 2004) (No. 03-1120).

DOCKET NUMBERS: Swedenburg v. Kelly, No. 03-1274; Granholm v. Heald, No. 03-1116, and Michigan Beer and Wine Wholesalers Association v. Heald, No. 03-1120.

ORAL ARGUMENT DATE: Tuesday, December 7, 2004.

ISSUE: Does a State’s regulatory scheme that permits in-state wineries directly to ship alcohol to consumers but restricts the ability of out-of-state wineries to do so violate the dormant Commerce Clause in light of Sec. 2 of the 21st Amendment?

FACTS: New York and Michigan impose significant regulatory barriers on wine sales.  Under their laws, all out-of-state liquor must pass through multiple tiers of regulation before it reaches the consumer.  This scheme, used by many states, is known as the three-tier system.

A wine producer may not sell directly to consumers, but must sell its wine to a distributor or wholesaler.  A distributor then sells the wine to a retailer.  Finally, the retailer sells the wine to the consumer.  Moreover, there are strict separation requirements.  The same person can not be licensed to engage in more than one“tier” of the regulatory scheme.   Thus, wine is subject to a three tier regulatory scheme: manufacture, distribution, and retail sales.

However, Michigan and New York allow in-state wine producers, subject to certain qualifications, to sell directly to the consumer.  An out-of-state wine producer may not take avail themselves to these exceptions and thus may not direct-sell to the consumer: Rather, an out-of-state wine producer, even a small one, must go through an in-state distributor.  Thus, all out-of-state wine, before it may reach a consumer, must pass through an in-state business. 

Two separate groups of plaintiffs, consisting of wine producers and connoisseurs, attacked the laws, arguing that the State restrictions, by allowing in-state wine but not out-of-state wine to pass directly to the consumer discriminated against out-of-state wine producers.  This, they argued, violated the dormant Commerce Clause.  [Ed's note: The plaintiffs sued under 42 U.S.C. §1983, since “one of the ‘rights, privileges immunities’ protected by § 1983 [is] the right to be free from state action that violates the dormant Commerce Clause.”  National Private Truck Council, Inc. v. Oklahoma, 515 U.S. 582, 585-86 (1995) (citing Dennis v. Higgins, 498 U.S. 439 (1991))].

Both litigations attracted private intervenors who defended the constitutionality of their state laws: In Michigan, the Beer & Wine Wholesalers Association; In New York, the private wine interests retained Miguel Estrada.  That private parties are seeking to defend a state law tells illustrates the economic protectionism of the direct-shipment ban.

The Sixth Circuit struck down Michigan’s law under the dormant Commerce Clause.  The Second Circuit upheld New York’s law, holding that under section 2 of the Twenty-first Amendment, states enjoy near plenary power over intoxicating liquors, including wine: Section 2 trumped the dormant Commerce Clause.

Federalism and Freedom

Federalism is not good because it creates "states rights."  Federalism is good because it furthers individual liberty.  I pray the Court will remember that Ashcroft v. Raich is about freedom.  Is a woman free to use the only life-saving medicine available, or should her body rot to death?

In considering whether Congress can trump California's decision to decriminalize medicial marijuana, the Court should remember James Madison's words:

In the compound republic of America, the power surrendered by the people is first divided between two distinct governments, and then the portion allotted to each subdivided among the distinct and separate departments.  Hence a double security arises to the rights of the people.  The different governments will control each other, at the same time that each will be controlled by itself.  The Federalist No. 51, p. 323 (C. Rossiter ed. 1961) (J. Madison). 

By limiting the States and Congress to their proper prerogatives, the People will enjoy greater freedom since the structure of federalism would prevent Congressional overreaching into local affairs.  The people will have two servants, not two masters.  See also, Gregory v. Ashcroft, 501 U.S. 452, 458-459 (1991) ("Just as the separation and independence of the coordinate branches of the Federal Government serve to prevent the accumulation of excessive power in any one branch, a healthy balance between federal and state power lies at the heart of liberty.")

I pray the Court does not pretend that Congress has the authority to regulate Ms. Raich's conduct, especially when such a fiction would lead to loss of liberty.

The New York Times on Raich

The New York Times editorial board has stated its position on Ashcroft v. Raich.  Its conclusion:

Although the California women should win, it is important that they win on narrow, fact-specific grounds. Advocates of states' rights have latched onto this case and are urging the court to use it to radically rewrite its commerce clause rulings, reviving ancient precedents that took a more limited view of Congressional power. This is where the greatest danger lies in this case. If this sharply restricted view prevails, it could substantially diminish the federal government's ability to protect Americans from unsafe work conditions, pollution, discrimination and other harms.

The theme of this editorial is: Liberals are afraid of Raich?

I'm not sure whose version of the Commerce Clause would prevent Congress from regulating unsafe work conditions, pollution, and discrimination.  Pollution usually involves toxins travelling interstate, and thus would be covered under a narrow version of the Commerce Clause.  Congress can prevent private discrimination against blacks under the Civil Rights Amendments, which allow Congress to eliminate "badges of slavery," which almost certainly gives Congress the power to prevent unequal, but private, treatment based on race.  Perhaps Congress would still lack the power to prevent mom and pop stores from discriminating based on other classifications, though it likely could, under its commerce power, deny Subchapter S treatment to small businessness that adopt discriminatory practices.

And let's not forget about the Spending Clause.  Congress can compel states to do any number of things using its power under the Spending Clause. This would include the power require states to enact and enforce anti-discrimination laws as a condition to the reciept of federal funds.

Congress may attach conditions to the recipient of federal funds allowing Congress to do indirectly what it may not do so directly. South Dakota v. Dole, 483 U.S. 203 (1987) (requiring states to raise minimum drinking age to 21 or lose millions of dollars in federal highway funds); Oklahoma v. Civil Service Comm’n, 330 U.S. 127 (1947) (requiring state to take adverse employment action against potentially corrupt civil service employees).  Just as Congress could "nudge" South Dakota to raise its minimum drinking age to 21, and persuade Oklahoma to fire a civil service employee engaged in political activities, it could also require states to adopt anti-discrimination laws.  Inded, the Religious Land Use and Institutioanlized Persons Act (requiring States to accommodate religion in a way Congress could not directly require them to) is premised on the Spending Clause.

Thus, even a major federalism win in Raich would not likely kill efforts to end irrational discrimination.  But major win might prevent Congress from further expanding the federal criminal code.  And that should be something to make liberals happy.

(Hat tip: OK@VC)

Welcome, Yasmeen Abdullah

Ken Lammers, from CrimLaw, has hired a very able research assistant/law clerk.  She wrote, and Ken posted, an excellent summary on failure to appear in Virginia.  Although the memo focuses on state law, the consequences of an FTA in Virginia are similar to the consequences of an FTA in the three state whose law on this issue I know.  Anyhow, you can please read the memo on failure to appear in Virginia.

BTW, Ken, this girl has skillz...a budding blogger?

The Cato Brief

The Cato Institute submitted this amicus brief in Ashcroft v. Raich, which is notable for two reasons: Its author and its position.

The Cato Institute submitted this amicus brief in Ashcroft v. Raich, which is notable for two reasons: Its author and its position.

First, its author.  A lot of people think that one or more the "five friends of federalism" will split due to the subject matter being regulated, namely, marijuana.  The critics reason that drugs are viewed negatively, and therefore, the conservatives will not want to be associated with them: The Court will “just say no” to Raich.  I think this view is mistaken on its face since United States v. Lopez (striking down federal law criminalizing simple possession of firearm within 1,000 feet of school) dealt with guns in schools; Jones v. United States (construing federal arson statute narrowly, to not cover the burning of a private residence, to avoid federalism question) dealt with arson, and United States v. Morrison (striking down federal cause of action for gender-motivated violence) dealt with rape.  I hope no one here would argue that medicine, (which is what Raich is using the marijuana for) is worse than guns in school, arson, or rape.  Indeed, I challenge anyone here to state that marijuana for personal use is worse than rape, arson, or potentially preventing another Columbine.

In any event, the author of Cato's amicus brief is the conservative's conservative, Professor Douglas W. Kmiec.  If he can put aside his views on drugs in the name of enumerated powers, I am pretty sure that Rehnquist, O’Connor, Scalia, Kennedy, and Thomas  can.  Thus, I think his writing the amicus briefs gives a lot of credibility to Raich's position.  It should also help us recognize that the federalism five might not put a disdain for drugs above principle.

Second, its position.  We can honestly disagree over whether Congress has authority to regulate the non-commerical, intrastate use, marijuana.  But we can not honestly disagree that this power, if it exists at all, is at the borderlands.  It is a very close call.  But who should get the benefit of this close call - Congress, or the States?  I think the Court can could craft a rule to deal with these situations.

The court has rules of constitutional interpretation that seek to protect our constitutional system of separated powers.  For example, the Court will construe federal laws narrowly (but not absurdly) to avoid a constitutional question.  By construing the statute narrowly, the Court avoids the unpleasant business of telling Congress it violated the Constitution.  The Court should adopt a similar rule in federal-state conflicts.  After all, our system of government has two unique, and equally indispensible features: Separation-of-powers and federalism.

We can disagree over the categorical rule regarding what governmental unit should get the benefit of the doubt.  Some would argue that since ours is a government of enumerated, and therefore limited,  powers the balance should always tip in favor of the states.  Others (me, for example) would first ask what subject is matter is being regulated.  If it's civil rights, then I say resolve the conflict in favor of Congress. 

States have a horrible record protecting civil rights (can we say fire hoses, the 14th Amendment, and section 1983?), and thus, close cases such as Katzenbach v. McClung (Congress can require in-state restaurants to serve blacks since those restaurants obtain their food from other states) and Heart of Atlanta Motel (holding that Congress may require in-state hotels to accomodate blacks, since hotels specialize in serving people moving in interstate commerce) should stand.  We can't trust states to treat blacks with dignity and respect, and thus, Congress should get the close calls when ensuring race equality under Article I.  But Raich is different.

In Raich, the court need not create a categorial rule governing all federal-state conflicts.  Rather, it needs to draft merely a sub-rule.   Namely, federalism questions involving issues over which the States have traditional expertise should be resolved in favor of the states.  This is what Professor Kmiec argues in the amicus brief.  His first sub-heading reads:  "The Compassionate Use Act Is Within The Province Of Traditional State  'Expertise' Over Health Care."  In other words, California has not stepped into an area about which it's ignorant or incompetent.  Prof. Kmiec continues:

Justices Kennedy and O'Connor affirmed in Lopez that in areas of traditional state concern, where states "lay claim by right of history and expertise," the federal government ought not legislate "beyond the realm of commerce in the ordinary and usual sense of that term."  United States v. Lopez, 514 U.S. 549 (Kennedy, J., and O'Connor, J., concurring). The Compassionate Use Act, which allows for the limited use of a controlled substance under a doctor's care (Cal. Health & Safety Code 11362.5), fits squarely within an area of state expertise. Protecting the health and safety of citizens has been "primarily, and historically, ... [a] matter of local concern."   For this reason, this Court has acknowledged that the local provision of health care is a "subject of traditional state regulation."  Moreover, this Court has stated that "the direct control of medical practice in the States is beyond the power of the Federal Government."   It is deep-seated and "elemental" that states retain "broad power" relating to the "establish[ment] and enforce[ment] of standards of conduct within its borders" that facilitates its citizens' health needs. This broad power "extend[s] naturally to the regulations of all professions concerned with health."

Here, the State of California has exercised its historic power over local health and welfare in a deliberative and circumspect manner. In 1996, California voters, by an overwhelming 56% majority (greater than the vote percentage received by either Presidents Clinton or Bush in the state - and, for that matter, most other elected officials), approved the Compassionate Use Act as Proposition 215. The arguments for and against the proposition were clear and pointed. Doctors and nurses reported witnessing firsthand the medical benefits of marijuana, especially in respect to cancer patients. These medical professionals described how, because of side-effects of certain cancer treatments (for example, nausea induced by chemotherapy), one-third of seriously ill patients discontinue those treatments despite a 50% chance of improvement. By contrast, they argued that when standard anti-nausea drugs fail, marijuana ingested in food or by smoking is often the only medication that eases patients' nausea, permitting continued treatment. (Brief at 4-5, citations omitted).

Moreover, California did not decriminalize marijuana.  Had California done so, Raich might be a much different case.  Instead, Prof. Kmiec continues:

In approving the Compassionate Use Act, Californians balanced these competing concerns, keeping in place tight state controls and prohibitions on marijuana outside the heavily regulated medical context. Mere possession of one ounce or less remains a crime, for example. Possession with the intent to sell any amount is a felony. Non-medicinal cultivation of any amount is a felony. Sale, transportation, or distribution of marijuana is a felony under. There are also provisions specifically outlawing: the sales to minors, and the sale or manufacture of marijuana paraphernalia.  Driving privileges may be suspended for marijuana violations,  and the forfeiture of vehicles is provided for upon conviction for large amounts. 

The state judicial construction of the Compassionate Use Act has been equally circumspect. First, the California Supreme Court rejected claims that the Act created an immunity from arrest, either expressly or impliedly. Rather, it recognized a limited immunity from prosecution, which allows a defense at trial, and permits a motion to set aside an indictment or information prior to trial.  Thus, a defendant may raise his or her status as a qualified patient or primary caregiver as a defense at trial or in moving to set aside an indictment or information prior to trial. The burden of proof as to this affirmative defense is allocated to the defendant. 

In similarly circumspect fashion, the court reasoned that even with a physician's recommendation or approval, a patient may not possess an unlimited quantity of marijuana under the Act. Rather, the quantity possessed, and the form and manner of its possession, must be reasonably related to the patient's current medical needs.

In reaching those conclusions, the state court noted that law enforcement authorities had given their support to the proposition because they did not "want to send cancer patients to jail for using marijuana" (id. at 1546); but at the same time, the Act carefully provided that "[n]othing in this section shall be construed to supersede legislation prohibiting persons from engaging in conduct that endangers others, nor to condone the diversion of marijuana for nonmedical purposes." (Brief at 5-7, citations omitted).

Thus, California has not opened the floodgates of marijuana.  Rather, we have said that people may, but only under a doctor's supervision, use marijuana for specific medical conditions.   

Kmiec et. al cut a nuanced, but clean and followable, path, saying to the Court: "When States use their traditional police power over non-commercial items, and do not allow these non-commercial items to be injected into the stream of commerce, any close constitutional questions should be resolved in favor of the states."  This approach would still allow Congress to use its commerce power to regulate civil rights, banking, and securities, but leave to the states some areas over which it's best equipped to deal and experiment with.

Instead of the system we have now, where Congress may regulate everything it wants, we would actually have a balance.  Congress would have power or some things, the states power over others.  The Court should use as much energy ensuring a separation between Congress and the States, as it does ensuring separated powers between the three branches of our federal government.

The Court should give California the benefit of the doubt.

Brain exercise

If, your brain, like mine, needs some exercise after yesterday's eating and drinking, you will enjoy these questions.    Two things.  First, you have to answer these questions, instantly, and in your head.  Second, I didn't write them, so the smart aleck comments below the fold are not mine.

First Question: You are participating in a race. You overtake the second person. What position are you in?

Second Question: If you overtake the last person, then you are...?

Third Question:  Very tricky math! Note: This must be done in your head only. Do NOT use paper and pencil or a calculator. Try it. Take 1000 and add 40 to it. Now add another 1000. Now add 30. Add another 1000. Now add 20. Now add another 1000. Now add 10.

Fourth Question: Mary's father has five daughters: 1. Nana, 2. Nene, 3. Nini, 4. Nono. What is the name of the fifth daughter? (a, e, i, o, u)?

Continue reading "Brain exercise" »