Posted on 11/11/2010 7:23:06 AM PST by bassmaner
Some conservatives outraged by Obamacare’s individual mandate had helped pave the way for it through the war on drugs.
If the generation of “limited government” lawmakers freshly chosen to man the trenches in Washington wishes to be taken seriously, the butcher’s bill must include some of the social conservatives’ sacred cows.
Starting with the War on Drugs.
Many conservatives have long argued that the federal government is broadly empowered to prosecute the drug war under Congress’s authority over interstate commerce. In the name of the drug war, they have been willing to allow federal law-enforcement officers to prosecute seriously ill patients who use medical marijuana in compliance with their states’ laws.
Many of those same conservatives are now finding that the terrible, swift sword of expansive federal power that they endorsed in the name of drug prohibition has now been turned on them in the form of Obamacare’s individual mandate.
The Justice Department is defending Obamacare by asserting that a 2005 Supreme Court case, Gonzales v. Raich, permits such a broad reading of the Commerce Clause that the federal government can tell individual citizens that they have to buy health insurance.
The Raich case was about medical marijuana. Angel Raich, a resident of Oakland, Calif., used medical marijuana to deal with the debilitating pain caused by an inoperable brain tumor, a seizure disorder, and a life-threatening wasting syndrome. California law allowed her to do so, but the Drug Enforcement Administration claimed that the federal Controlled Substances Act (CSA) made no exception for those in Raich’s position.
The Raich case closed out a decade’s worth of rolling back the scope of Congress’s power. In 1995, the Court held in United States v. Lopez that the federal Gun-Free School Zones Act exceeded the limits of Congress’s ability to regulate interstate commerce. United States v. Morrison in 2000 invalidated a federal civil remedy for victims of intrastate gender-motivated violence. Raich reversed this pushback. By a six-to-three majority, the court held that the aggregation of individuals’ small-scale cultivation and consumption of marijuana in compliance with California law would substantially affect the market for the drug, a market that the federal government had outlawed.
Raich cemented the legal foundation for the individual health-insurance mandate that has so many conservatives outraged.
Not all states took Raich’s broad claims of federal power lying down. Deep blue California, Maryland, and Washington State filed an amicus brief contending that Congress had intended only to interdict large-scale drug traffickers, not to bar states from accommodating those in Raich’s position. The attorneys general of Alabama, Louisiana, and Mississippi, drug warriors tried and true, nonetheless objected to what they saw as an alarming disregard for federalism and state sovereignty. (Disclosure: The Cato Institute also filed an amicus brief.)
Several conservative drug-war supporters in the House joined a brief in support of a limitless reading of Congress’s Commerce Clause power in the Raich case but have since denounced the application of that power in Obamacare — the unintended consequence of a shortsighted focus on maximizing drug enforcement. Indiana Republican Dan Burton was one of those who signed on; he has since sponsored a bill to repeal Obamacare’s “government-run” health-care solution. Burton and fellow drug warrior Mark Souder signed on to another repeal measure before Souder resigned amidst an adultery scandal. Georgia Republican Jack Kingston took up the charge to repeal the individual mandate as well. Former representative Ernest Istook (R., Okla.) has been on the warpath, phrasing the issue as “Obamacare vs. Limited Government.”
The Justice Department has found Raich an exceedingly useful tool in battling the legal challenges to Obamacare. In the Florida lawsuit, the DOJ claims that “Individuals who self-insure engage in economic activity at least as much as the plaintiffs in Raich.” The same goes for Michigan, where a federal judge recently upheld the individual mandate as a legitimate exercise of Congress’s Commerce Clause power: “As living, breathing beings, who do not oppose medical services on religious grounds, they cannot opt out of this market.” The words “Gonzales v. Raich” kick off the government’s Commerce Clause argument in the Virginia litigation. (Disclosure: The Cato Institute has filed briefs in support of Virginia attorney general Kenneth Cuccinelli’s challenge to Obamacare.)
The jump from Raich to Obamacare is a short one, at least in the government’s eyes. The dissenters in Raich predicted the expansion of Commerce Clause authority. Justice Thomas warned that if the federal government could override a state’s licensing of medical marijuana, “then it can regulate virtually anything — and the Federal Government is no longer one of limited and enumerated powers.” Justice O’Connor noted the “perverse incentive to legislate broadly pursuant to the Commerce Clause” — the more broadly Congress writes a law, the more likely Raich’s logic is to uphold it. O’Connor discussed how the Court’s logic would allow the government to regulate (and ban) non-commercial activities that would detract from regulated markets, such as home-care substitutes for daycare. This would be funny, if a federal judge had not just ruled that being alive and breathing means you must buy health insurance or face the consequences.
A principled stand on the limits of federal power does not begin and end with health care. The Commerce Clause is a double-edged sword: Conservatives cannot wield it in the drug war without making it a useful tool for advancing progressive visions of federal power.
Heavy sigh.
I have been pointing this fact out here for 12 years. The "reasonable" regulation allowed for in the Heller case may well at some point allow the govt. to disarm everyone by "regulating" ammo or firing pins ect. The 40 billion dollar a year war on Pot smokers have not reduced supply, demand or even raised the price of marijuana. Conservatives and liberals alike are guilty of shredding the Bill of Rights to advance a mindless, hopeless war on a fairly benign weed.
While the “war” on drugs is clearly unconstitutional, suddenly legalizing them while we have a permissive welfare system would result in a “Cloward-Piven” type failure of services.
There are much more critical usurpation's of power that need to be corrected before government gets out of the pharmaceutical business.
He is also trying to say that Raich somehow supports the claim that the individual health insurance mandate is constitutional and that's even stupider. The acknowledged power of the federal government to regulate the intrastate production of agricultural commodities tells us nothing about whether the feds have the power to compel people to buy a service they don't want. The Court made a mistake when it said that growing something for your own use affected commerce enough to trigger federal power under the Commerce Clause. But that mistake doesn't compel the conclusion that the feds can force us into the marketplace for health insurance. Far from it. Obamacare presents a very different issue and Raich will be a marginal precedent at best in the legal battle over the individual mandate. How does ingnorant crap like this get published at NRO?
I suspect that many of my readers saw the recent mention of the U.S. Supreme Court's decision about California's medical marijuana law, and just turned the page. You don't smoke marijuana, and don't particularly care what decision the Court made. You actually should care--because many of the same arguments that applied to this case, and other federal statutes relating to interstate commerce, apply to guns as well.
Shotgun news.
The Courts are saying so too.
The Justice Department has found Raich an exceedingly useful tool in battling the legal challenges to Obamacare. In the Florida lawsuit, the DOJ claims that “Individuals who self-insure engage in economic activity at least as much as the plaintiffs in Raich.”
The same goes for Michigan, where a federal judge recently upheld the individual mandate as a legitimate exercise of Congress’s Commerce Clause power: “As living, breathing beings, who do not oppose medical services on religious grounds, they cannot opt out of this market.”
The words “Gonzales v. Raich” kick off the government’s Commerce Clause argument in the Virginia litigation.
You are free to believe as you wish.
Wickard v. Filburn can be legislated around by Congress. After all...people still grow food for their own consumption today without the govt. telling them how many rows of tomatoes they may grow or arresting them for growing to much...or too little.
What can govt. not do under the substantial effects doctrine of the Commerce Clause in your opinion?
How about we hold the line on food for now?
Obamunists are seeking to outlaw Happy Meals, transfats, and other substances.
Or are dopers’ rights the only thing to pursue?
Justice Thomas
Respondent’s local cultivation and consumption of marijuana is not “Commerce ... among the several States.”
Certainly no evidence from the founding suggests that “commerce” included the mere possession of a good or some personal activity that did not involve trade or exchange for value. In the early days of the Republic, it would have been unthinkable that Congress could prohibit the local cultivation, possession, and consumption of marijuana.
and
“
If the Federal Government can regulate growing a half-dozen cannabis plants for personal consumption (not because it is interstate commerce, but because it is inextricably bound up with interstate commerce), then Congress’ Article I powers — as expanded by the Necessary and Proper Clause — have no meaningful limits. Whether Congress aims at the possession of drugs, guns, or any number of other items, it may continue to “appropria[te] state police powers under the guise of regulating commerce.”
and further:
“
If the majority is to be taken seriously, the Federal Government may now regulate quilting bees, clothes drives, and potluck suppers throughout the 50 States. This makes a mockery of Madison’s assurance to the people of New York that the “powers delegated” to the Federal Government are “few and defined”, while those of the States are “numerous and indefinite.”
Not long after the decision in Raich, the Court vacated a lower court decision in United States v. Stewart and remanded it to the court of appeals for reconsideration in light of Raich. In Stewart, the Ninth Circuit had held that Congress lacked the Commerce Clause power to criminalize the possession of homemade machine guns
In my opinion, nothing at all. I think the whole doctrine is nonsense. Uprooting it will be an important step back toward limited, constitutional government. My point is just that Gonzales v Raich didn't add to that doctrine in any significant way. The courts and the DOJ could cite Wickard and get the same mileage they get from Raich.
Of course Congress doesn't have to use all the power the Court says it has. But using that power doesn't help justify different and greater usurpations. I'd like to see a Republican Congress say that Wickard was wrong and it would interpret its power more narrowly than the Court has, but that's a fantasy. Back in the real world, Congress doesn't hurt the argument that the individuals mandate is unconstitutional by accepting Wickard and acting accordingly.
The argument that it does is a manifestation of the civil war some foolish libertarians want to start within the broader conservative movement. The author is taking up any stick he can find to beat “social conservatives” with and he doesn't seem to care whether he's making any sense. Now of all times, this isn't constructive.
There has always been suspicion that the “social conservative” wing of the GOP came into being with the religious right’s disillusionment with Jimmy Carter and his administration. They flocked to the GOP to help elect Reagan and have been in the Republican party since. Many movement conservatives who pre-dated Reagan worried that this class of voters believed, like the liberals, that government would be a fine place to address the various perceived moral failings of the American citizen. The founders of the conservative movement in this country had no truck with authoritarian moralists who allied with government to impose additional controls over our lives, and still don't.(Read Kirk, Buckley and Goldwater) I think a Church that can not move people to right through moral persuasion has no business trying to do so through force using the police powers of the State. A large chunk of the conservative base will reject that attempt. Myself included.
Blue laws are an insult to a free man...whether he be a preacher or a hooker. A nanny State is a Nanny State...something that both liberals and social conservatives seem to desire.
Oh please. Spare us the libertarian claptrap. Of course vigorous enforcement of drug laws is consistent with small, limited government. The idea that drug abuse is wrong is part of our conventional morality. Enforcing that morality is a core function of government. The proper allocation of that responsibility between state and federal authorities under our constitutional scheme is another question. But for practical purposes, the Supreme Court resolved that question decades ago. The War on Drugs doesn't involve anyone using the law to move society to the right or to move it anywhere at all. It is an effort to maintain cultural norms without which we can't maintain liberty. The persistent libertarian failure to understand this is downright infuriating. Government has to maintain the moral infrastructure of a free society. If it doesn't, you won't have liberty, you'll get a totalitarian state. It's as simple as that.
To return to my initial point — the author is an idiot.
Among the many things Brooks doesn't understand is that there can be no compromise between limited and unlimited government. If you assign to government a transcendent purpose — such as making us all prosperous and happy — the government will be unlimited. Unlimited ends entail unlimited means.
You really don't see the disconnect do you?
What kind of claptrap are you pushing?
That Government has to maintain the moral infrastructure of a free society?
I can't find where that gift of power is given to the Federal Govt. in the Constitution. But I bet you can...Liberals claim the "general welfare" excuses their intrusions.
What you speak of is called Theonomy, a merging of the political and religious. A dangerous concept...one the Taliban embrace.
Government can't properly be charged with making us all good. Robespierre's “Republic of Virtue” certainly had a transcendent purpose and was inherently tyrannical. But enforcing the morality that society generates on its own over millennia is something else entirely. That's an essential government function, like national defense. You can't have a free society without a government that supports conventional morality and helps maintain its force.
If taboos against drug abuse and promiscuity(to choose a couple of examples at random) erode, society starts to crumble and government steps in to hold things together by force. That's why government, in cooperation with other social institutions, has to maintain our essential taboos or you can kiss liberty goodbye. The left is constantly trying to attack the taboos we rely on and using the law to do it. That's wrong. But there is all the difference in the world between using government power to maintain moral standards and using government power to uproot them and replace them with something else. It's the difference between maintenance and demolition, painting your house and burning it down.
John Locke's theory of government, which was the foundation of our constitutional order, assigns to the state the sole function of acting to sustain the conditions necessary for the private realm to thrive on its own. One of the things we need for the private realm to function without government management is a strong moral order. One important component of that order is the principle that it is a waste of the gift of life to burn your brains out with drug abuse. The government can't adopt a permissive attitude toward drug use without undercutting that principle. None of this should be hard to follow.
The federal government doesn't have to be as active about drug enforcement as it is. States exist for a reason in our scheme. But the federal government can properly use whatever power it legitimately has to stigmatize and punish drug use and dealing. There is no contradiction between John Locke's classical liberalism and the Drug War. Only a fool who dimly understood John Stuart Mill's worst essay and never understood anything else about political theory could conclude otherwise.
Unfortunately, the world is full of such fools and the author of this article is plainly one of them. “On Liberty” is a recipe for societal suicide, the libertarianism is spawned is an intellectual dead end and all the carping about drug enforcement that comes from the libertarian camp is moronic. Don't join the chorus.
As for the Taliban analogy — switch to decaf. Law and morality are inevitably intertwined. When the morality is flawed the law will be too. When society gets the morality right it will get the law right to. But there is no such thing as an amoral legal order. There's also no such thing as a moral system without religion at its root. The problem with the Taliban isn't that they incorporate their religiously based morality into their temporal law. The problem is that their religiously based morality is thoroughly nasty. When you compare the Taliban burying homosexuals alive to the U.S. government incarcerating drug abusers you just sound silly.
Incidentally, none of this has anything to do with Theonomy which is a theory about the ultimate source of moral standards, not the role of government in maintaining them. The dictionary can be your friend.
The problem is that concrete moral issues have been preempted by the liberal presumption of privacy, and the relentless extension of the liberal language of autonomy has removed a common moral framework from our society. And your millennia morality sits upon shifting sands.
The Bill of Rights and The Book of Leviticus stand in direct opposition to each other in a free and civilized society.
An order of rights without right is simply that. Only if we recognize this do we have any chance of retaining contact with an order of right beyond rights. What we have a right to do may not in fact be right to do. The difference is crucial and it must be embedded in the law itself, because only then can we prevent the collapse of the morally right into the legally right. Acknowledging the limits of the law is indispensable to preserving the recognition of a moral order beyond it. Conversely, relieving legality of the burden of moral rightness is also indispensable to its preservation. The legal and the moral must remain distinct if they are to perform their roles of supporting and facilitating one another.
The last is a quote from David Walsh Professor of Politics at Catholic University of America.
Two Treatises of Government a good read but you should also read A Letter Concerning Toleration. In it his views run more parallel with Mills' On Liberty.
Now, I appeal to the consciences of those that persecute, torment, destroy, and kill other men upon pretence of religion, whether they do it out of friendship and kindness towards them or no?
And I shall then indeed, and not until then, believe they do so, when I shall see those fiery zealots correcting, in the same manner, their friends and familiar acquaintance for the manifest sins they commit against the precepts of the Gospel; when I shall see them persecute with fire and sword the members of their own communion that are tainted with enormous vices and without amendment are in danger of eternal perdition; and when I shall see them thus express their love and desire of the salvation of their souls by the infliction of torments and exercise of all manner of cruelties.
For if it be out of a principle of charity, as they pretend, and love to men’s souls that they deprive them of their estates, maim them with corporal punishments, starve and torment them in noisome prisons, and in the end even take away their lives — I say, if all this be done merely to make men Christians and procure their salvation, why then do they suffer whoredom, fraud, malice, and such-like enormities, which (according to the apostle) manifestly relish of heathenish corruption, to predominate so much and abound amongst their flocks and people?
Locke
Mill wrote “On Liberty” with his dingbat wife and published it in a fit of grief when she died suddenly. It is the antithesis of everything Locke stood for. Any state that followed Mill's design would rapidly descend into brutal tyranny, something he never considered because he assumed that tyranny was obsolete in the 19th century! Locke's designed the liberal state precisely to defeat the tyranny that Mill's thought would enable.
Of course law and morality must remain distinct from one another (see famous HLR exchange between Professors H.L.A Hart and Lon Fuller). But that doesn't begin to suggest that they can or should remain separate. They can't. Morality precedes law; nearly all laws have a moral foundation. That's as it should and must be. Deal with it. The quote you offer up misses the point of this discussion by a country mile.
Once it is settled that any production of a commodity is subject to federal regulation on the theory that it affects interstate commerce in that commodity (and that was settled decades ago) there is no basis in constitutional theory for supposing that the federal government shouldn't reinforce society's moral judgments about drug production, sales and abuse. You don't limit government by trying to get it out of the business of maintaining society's moral standards. On the contrary you expand it.
The left is deliberately attacking those standards to tear society down and build utopia on the ruins. Any effort to remove legal support for them just plays into the left’s hands, which is what libertarians routinely do. When the moral standards all fall and society comes apart at the seams the result won't be liberty. It will be a totalitarian state. That's what following Mill will net you
Do you seriously think this has anything to do with drug enforcement? Seriously? Does the government incarcerate dope dealers because of their religion? Are all those kingpins prisoners of conscience?
Sheesh.
...Roe v Wade was predicated on the possibility of a women crossing State lines to get an abortion, constituting interstate commerce, thus giving the Feds the power to "regulate"(legalize) abortion nation wide.
Your statement supports this government action, or at least supports its right to take this action.
So your statement is foolish and will be proven to be more so as the goverment uses this FDR packed court decision in Wickard to control more and more of your life.
Is punishing the pot smoker worth it to you?
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