The Court Still Doesn't Get Federalism
Gonzales v. Raich (Omnibus Post)

Gonzales v. Raich's 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.