Crime & Federalism

[Other Gonzales v. Raich sources and material are available here.]

In a 6-3 opinion authored by Justice Stevens, the Supreme Court sided with the government in Gonzales v. Raich (formerly Ashcroft v. Raich).  Supreme Court experts had predicted a 9-0 or 8-1 victory for the government, so in a sense, this is a victory for enumerated powers advocates and social justice.

Justice Stevens and the other liberals on the Court have continually overlooked the fact that the federal criminal justice system falls disparately upon blacks.  A win for Raich would have meant fewer federal criminal laws, and thus, a lesser burdened on an already oppressed class of people.  Moreover, federal federal criminal laws would mitigate any bad Fourth Amendment opinions.  Fewer laws to enforce means fewer opportunities to violate civil rights.  But that is not be - at least not yet. 

Raich reaffirms my support of President Bush's judicial nominations.  It is crucial for individual liberty that the Court have more members like Justice Thomas. 

The Raich opinion is available here.  Here's the core holding:

Wickard thus establishes that Congress can regulate purely intrastate activity that is not itself “commercial,” in that it is not produced for sale, if it concludes that failure to regulate that class of activity would undercut the regulation of the interstate market in that commodity.  

The similarities between this case and Wickard are striking. Like the farmer in Wickard, respondents are cultivating, for home consumption, a fungible commodity for which there is an established, albeit illegal, interstate market.28 Just as the Agricultural Adjustment Act was designed “to control the volume [of wheat] moving in interstate and foreign commerce in order to avoid surpluses . . .” and consequently control the market price, id., at 115, a primary purpose of the CSA is to control the supply and demand of controlled substances in both lawful and unlawful drug markets. 

Slip op. at 15.

The "Market Argument" Prevailed
The Court accepted the goverment's "market argument:"

More concretely, one concern prompting inclusion of wheat grown for home consumption in the 1938 Act was that rising market prices could draw such wheat into the interstate market, resulting in lower market prices. Wickard.  The parallel concern making it appropriate to include marijuana grown for home consumption in the CSA is the likelihood that the high demand in the interstate market will draw such marijuana into that market. While the diversion of homegrown wheat tended to frustrate the federal interest in stabilizing prices by regulating the volume of commercial transactions in the interstate market, the diversion of homegrown marijuana tends to frustrate the federal interest in eliminating commercial transactions in the interstate market in their entirety. In both cases, the regulation is squarely within Congress’ commerce power because production of the commodity meant for home consumption, be it wheat or marijuana, has a substantial effect on supply and demand in the national market for that commodity.

Slip op. at 16.

Rational Basis Rules.
After Lopez and Morrison, some wondered what level of review would apply in Commerce Clause decisions.  It seems that rational basis rules. Per Justice Stevens, writing for a 6-3 Court:

In Wickard, we had no difficulty concluding that Congress had a rational basis for believing that, when viewed in the aggregate, leaving home-consumed wheat outside the regulatory scheme would have a substantial influence on price and market conditions. Here too, Congress had a rational basis for concluding that leaving homeconsumed marijuana outside federal control would similarly affect price and market conditions.

Slip op. at 16.  More to the point:

In assessing the scope of Congress’ authority under the Commerce Clause, we stress that the task before us is a modest one. We need not determine whether respondents’ activities, taken in the aggregate, substantially affect interstate commerce in fact, but only whether a “rational basis” exists for so concluding.

Id. at 19.  Justice Scalia agreed:

I thus agree with the Court that, however the class of regulated activities is subdivided, Congress could reasonably conclude that its objective of prohibiting marijuana from the interstate market “could be undercut” if those activities were excepted from its general scheme of regulation. See Lopez. That is sufficient to authorize the application of the CSA to respondents.

Scalia's concurring opinion at 10.

The Court Doesn't Get Federalism
In her dissenting opinion in Gonzales v. Raich, Justice O'Connor wrote:

We enforce the “outer limits” of Congress’ Commerce Clause authority not for their own sake, but to protect historic spheres of state sovereignty from excessive federal encroachment and thereby to maintain the distribution of power fundamental to our federalist system of government.

James Madison would have disagreed:

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 would enjoy greater freedom since the structure of federalism would prevent Congressional overreaching into local affairs.  The people would have two servants, not two masters.  Federalism is concerned with individual liberty, not "state sovereignty" or "power."

Gonzales v. Raich's (Immediate) Aftermath
Gonzales v. Raich will have an immediate effect on three lower-court opinions in which the government had petitioned for cert. in three recent cases, but had asked that the Court hold the cert. petitions pending the outcome of Raich.  I'll summarize the cases and then link to the cert. petitions.

United States v. Maxwell and United States v. Smith are two important Commerce Clause decisions from the Eleventh Circuit Court of Appeals.  In Maxwell a unanimous three-judge panel held that 18 U.S.C. 2252A(a)(5)(B), which makes it a federal crime to posses child p*rnography on materials that traveled in interstate commerce, was an invalid exercise of Congress' commerce power.  Judge Tjoflat wrote for the panel that since Maxwell's possession of the pornographic images was non-commercial, it would not apply Wickard v. Filburn's aggregation principle.  Slip op. at 37 ("We believe this aggregate approach cannot be applied to intrastate criminal activity of a non-economic nature.")

In Smith, another Tjoflat opinion, a unanimous three-judge panel of the Eleventh Circuit, applying plain error review, reversed another conviction obtained under Sec. 2252A(a)(5)(B).  Maxwell and Smith exasperated a circuit split concerning Congress' power to criminalize the intrastate creation and possession of child pornography.

Another important case testing the limits of Congress' commerce power is United States v. Stewart.  In Stewart, a 2-1 panel of the Ninth Circuit, per Judge Kozinski, held that Congress could criminalize the possession of homemade machine guns. The defendant in Stewart used parts that traveled in interstate commerce to convert his semi-automatic rifle with the capability to fire automatically, i.e., Stewart's rifle would fire repeatedly without his having to continually pull the trigger.

The Maxwell cert. petition is available here; the Smith cert. petition is available here; the Stewart cert. petition is available here.  The government has requested that all three petitions for a writ of certiorari be held and then disposed of in light of Ashcroft v. Raich.

Post-Raich, it's unlikely that Maxwell, Smith, or Stewart will stand.  All three cases, like Raich, involve the intrastate production or possession of materials for which there is a national market (machine guns and child pornography).  The Court will likely GVR (grant cert., vacate the judgment, and remand for reconsideration) these cases.    But it's worth keeping an eye on them.

Today the Court delivered Lingle v. Chevron, No. 04-163 (U.S. May 23, 2005).  Soon, it will deliver Kelo v. City of New London, which asks whether a private corporation's decision to take your home will receive rational basis scrutiny.  After reading Lingle, I'm confident that the homeowners in Kelo will lose.

In Lingle, Justice O'Connor wrote for a unanimous Court:

[G]overnment regulation of private property may, in some instances, be so onerous that its effect is tantamount to a direct appropriation or ouster—and that such regulatory takings may be compensable under the Fifth Amendment. In Justice Holmes’ storied but cryptic formulation, while property may be regulated to a certain extent, if regulation goes too far it will be recognized as a taking.”  The rub, of course, has been—and re-mains—how to discern how far is too far.  In answering that question, we must remain cognizant that government regulation—by definition—involves the adjustment of rights for the public good, and that Government hardly could go on if to some extent values incident to property could not be diminished without paying for every such change in the general law.

Moreover, in most circumstances, deference is owed to the Government's determination that property wass taken for public use under the Fifth Amendment.

Slip op. at 7-8 (citations and quotation marks omitted).  Well, she didn't write that last sentence: I injected it.  But it seems to follow, doesn't it?

UPDATE: If this money quote doesn't convince you that the homeowners in Kelo will lose, then nothing will:

The reasons for deference to legislative judgments about the need for, and likely effectiveness of, regulatory actions are by now well established, and we think they are no less applicable here.

Id. at 15 (emphasis added).  Taking someone's home, like so many other government functions, is but a mere "regulatory action" that deserves "deference."

UPDATE: A commentor here reads a different outcome from Lingle's tea leaves.

Does a grand jury have the power to nullify the application of an unjust law in a particular case?  If so, must the trial court inform the grand jury of its power?  It appears not, according to a 6-5 en banc panel of the Ninth Circuit.  United States v. Navarro-Vargas, No. 02-20663 (9th Cir. May 23, 2005) (en banc).  Although the panel technically holds that a grand jury may refuse to return an indictment even "where a conviction can be obtained," slip op. at 5440-41, it allows to stand instructions that clearly tell the jury it may not judge the justness of laws. 

Here was one instruction given:

You cannot judge the wisdom of the criminal laws enacted by Congress, that is, whether or not there should or should not be a federal law designating certain activity as criminal. That is to be determined by Congress and not by you. Furthermore, when deciding whether or not to indict, you should not be concerned about punishment in the event of conviction. Judges alone determine punishment.

Slip op. at 5564 (emphasis added).  Hmm...  So a grand jury has the power to nullify, but a judge may tell the grand jury that it does not have the power to nullify.  If you don't know that you have the power to do something, does your power mean anything?

The majority opinion is tortured (as are all cases of judicial activism).  But the dissent is worth reading.  It leads:

The majority tells us that a constitutionally created institution, designed precisely to filter prosecutorial desire through citizen judgment, must give way to the unbridled exercise of prosecutorial discretion. The majority arrives at this remarkable conclusion by relying principally upon British history and the use of the grand jury in England prior to King George III. Yet the presence of the grand jury in our constitutional system is a uniquely American institution, born out of concern for unchecked government power and the experience of American colonists that led them to separate themselves from the very history the majority embraces.

Id. at 5558.  Here is another (of many) powerful point:

And herein lies the essential hypocrisy of the government's position. Standing firmly in the defense of its exercise of [prosecutorial] discretion (amounting at times to nullification), it just as firmly argues that grand jurors are without authority to make similar judgments about which laws deserve vigorous enforcement and which ones do not, in deciding whom to indict, and on what charges. In the government's eye, the grand jury is a mere instrument of prosecutorial will, a probable cause screening device obligated to act at the direction of the prosecutor and then only when the prosecutor has decided whom and how much to charge.

Id. at 5566.  You can read the full dissent here.

Today a per curiam panel of the Eighth Circuit held that reliable hearsay may serve as the basis for a four-level sentencing increase.  United States v. Wallace, No. 04-1265  (8th Cir. May 23, 2005).  However, the panel did not discuss, nor did Wallace's attorney argue, whether Crawford v. Washington applied at Wallace's sentencing hearing.

In Crawford, Justice Scalia wrote: "Dispensing with confrontation because testimony is obviously reliable is akin to dispensing with jury trial because a defendant is obviously guilty." Given the Blakely/Booker  line of cases, can't we also say that "Dispensing with confrontation because testimony is obviously reliable is akin to dispensing with sentencing fact-finding because a defendant is obviously guilty of the alleged conduct."

Precedent allows hearsay evidence at a sentencing hearing, and limits the scope of cross-examination.  But those precedents should be re-examined in light of Crawford where, as here, hearsay testimony caused a judge to sentence a defendant to a longer prison term.

If any law illustrates how wrongly decided South Dakota v. Dole was, then it's the Hatch Act. Under the Hatch Act, a state employee can't run for certain state elective offices.   In other words, the federal government regulates who can run for state office.  Wow.

How does this work in real life?  A friend, who intends to run for the state senate, was offered a job as a prosecutor.  He had to turn the job down because it would have been illegal for him to work as a state employee while running for state elective office.  Officials in Washington, D.C., it seems, have some interest in ensuring that Arizona prevents prosecutors from running for office.

While there are likely good policy reasons to regulate state elections, why is the federal government involved?  Certainly, Congress has the power under the Civil Rights Amendments to ensure that voting rights are not abridged.  But why can Congress regulate state and local elections in this way?  (I realize that this law is likely constitutional under South Dakota v. Dole, but putting aside Dole, where is the national interest?)

The Hatch Act illustrates why the Court needs to reinvigorate the Tenth Amendment.  Congress should have the power to attach conditions to federal funds, but those conditions should be invalided when they reach intimate, and traditional, state functions.  How far this doctrine should extend would be a tough question. (Nat'l League of Cities; San Antonio MTA).  But whether the federal government should be able to regulate state elections (unrelated to the Civil Rights, and the 19th and 26th Amendments) is not a difficult issue.

Cigar smokers might enjoy a program I found, which allows you to create a database of cigars smoked.  It also includes cigars descriptions, and if applicable, cigar rankings.  Like Bainbridge, I'm a one cigar guy (Padron 3000 - though my friend just sent me a sampler of the 1964 Anniversary Series, so my habits have temporarily changed).  But I enjoy learning about cigars - even the ones I don't smoke.  You can download the database here.

Speaking of cigars, I enjoyed reading The Complete Idiot's Guide to Cigars.  The Idiot's (somewhat major) failing was that its author, an editor of Smoke magazine, seemed somewhat less than candid when describing the offerings of some cigars companies that often advertise in Smoke.  The author also failed to discuss Padron Cigars.  I'm not sure someone can discuss fine cigars without mentioning the Padron family.  Still, the materials on how cigars are made and on "cigar esoteria" made the book worth reading and buying.

In the mail is The Cigar Companion: The Connoisseur's Guide.  I'll report back once I've read it.

By the way, cigar smoking is not nearly as expensive a habit as you might expect.  When I buy them by the box, the Padron 3000 costs about $4 a stick.  That's much less expensive than other leisure activities, e.g., going to the movies, having a drink at the bar, or buying a copy of the Sunday Times.  And it's very relaxing.  Though I've never been on antidepressents, I imagine that cigars would do much more to help someone mellow than a small - and expensive - pill.

Any cigar smokers reading this?  What's your favorite cigar?  What do you enjoy most about cigar smoking (other than smoking, them, of course!)?

[Photos are gone.  Comments will stay up.  Thanks for looking.]

I passed.

Petitioner Anthony Alexander Campbell appeals the denial by the district court of his petition for habeas corpus under 28 U.S.C. § 2254. Petitioner challenges his California state court burglary conviction on two grounds. He argues that his trial counsel provided ineffective assistance because of a conflict of interest: she was being prosecuted at the same time by the same district attorney’s office. In addition, he maintains that the trial court violated his due process rights by excluding him from an in-chambers meeting attended by the trial judge, the prosecutor, and his defense attorney, during which the court was informed of the prosecution of the defense attorney and concluded that the attorney did not have a conflict of interest. When presented with these arguments, the California state courts denied relief to Petitioner. Applying the deferential standard of review established under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), we affirm the district court’s denial of the habeas petition.

Campbell v. Rich, No. 99-17311 (9th Cir. May 20, 2005) (en banc).  No time to read the full opinion, but this seems shocking.

UPDATE: The Recoder has an interesting write-up of Campbell v. Rich, here.

I won't be posting anything else today, and won't likely post tomorrow.  Although I completed my law school's course requirements in December, there is only one graduation ceremony a year - which happens to be today.  I'm don't dig pomp and circumstance, but my grandparents are too old to come visit, so I'm going through the ceremony and sending them a video.

Like a big boy, I'll sit quietly while a bunch of people who devoted their entire lives to serving the wealthy and powerful discuss Jesus, justice, and service.  Sigh.