HIGH ON THE COMMERCE CLAUSE

We've never supported drug legalization, even in its "medical
marijuana" drag. Still, we can't help but feel uneasy about the
Supreme Court's 6-3 decision Monday in Gonzales v. Raich, which held
that the federal government can trump state laws permitting the
possession and cultivation of small quantities of cannabis for purely
personal use.

As Justice Clarence Thomas wrote in his dissent: "If Congress can
regulate this under the Commerce Clause, then it can regulate
virtually anything, and the federal government is no longer one of
limited and enumerated powers." By "enumerated powers," Justice Thomas
means the idea that the federal government can undertake only such
activities as the Constitution explicitly permits.

Hence the 10th Amendment, which reserves those powers not listed --
such as criminal law enforcement -- to the states. President James
Madison, the Constitution's primary author, famously vetoed a highway
bill in 1817: "The legislative powers vested in Congress are specified
and enumerated in the eighth section of the first article of the
Constitution, and it does not appear that the power proposed to be
exercised by the bill is among the enumerated powers..."

How things have changed -- largely as a result of New Deal-era
jurisprudence holding that the federal government's Constitutional
authority to regulate interstate commerce could be used to justify all
sorts of previously unimagined powers. This can be a good thing, when
what we are truly talking about is interstate commerce.

But by the 1990s federal law making had grown so unhinged from any
plausible Commerce Clause justification that it provoked a minor
Supreme Court backlash. In 1995 in United States v. Lopez, the Court
struck down the Gun-Free School Zones Act on the grounds that gun
possession near a school was not an economic activity. And in United
States v. Morrison, the Court struck down portions of the Violence
Against Women Act on similar grounds.

Raich would appear to end the Lopez line of reasoning, since the two
decisions don't seem reconcilable. If, as Justice Antonin Scalia wrote
in his majority concurrence, non-economic activities can be regulated
so long as they are part of a "comprehensive scheme of regulation,"
there would appear to be no federal power the Commerce Clause couldn't
theoretically justify.

And let no one be deluded that the democratic preference of America's
largest state isn't being trampled here. We didn't support the
California medical marijuana ballot initiative at issue in Raich. But
a clear majority of Californians did. Just because an issue is
"important" doesn't mean it should be a matter for federal law. Almost
all homicide is regulated at the state level, and contentious issues
like abortion rights are best handled not by judicial fiat but by
democratic compromises in the 50 states. Who knows what further
intrusions into the rights of local polities the Raich decision may
one day be used to justify?

Such stakes explain why many conservative legal scholars such as
former Reagan Assistant Attorney General Douglas Kmiec and former Bush
Solicitor General Charles Fried urged the court to recognize that
federal powers shouldn't extend this far. But Justices Scalia and
Anthony Kennedy, who voted to limit federal powers in Lopez and
Morrison, appear to have retreated from putting any restraint on
Commerce Clause-based regulation. This was not a good decision for
anyone who believes there are Constitutional limits on the federal
leviathan.