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Federalism and Freedom

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)