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The Commerce Clause, The Federal Judiciary, and Tyranny (or How Scalia Helped Screw America)
self | 10/15/09 | Huck

Posted on 10/16/2009 8:29:12 AM PDT by Huck

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To: Mojave; Rockingham

I was asking more about the interstate commerce aspects, getting to where that individual mandate would be without Wickard. This question to Kagan is related to my question:

http://www.youtube.com/watch?v=DSoWGlyugTo

Funny that she could not answer it. What would Madison say?


401 posted on 07/01/2010 3:51:04 AM PDT by publiusF27
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To: publiusF27
Funny that she could not answer it.

Senator, your question is absurd political posturing.

Senator, didn't you and your colleagues pass an Orwellian law mandating that Americans could not buy catfish from Vietnam? Haven't you banned the importation of Haggis for the last two decades? Didn't you ban the beverage absinthe for nearly a century? Don't you ban fresh tuna from use as sashimi? Isn't Casu Marzu cheese banned in the United States? Isn't wild caviar prohibited by federal law?

In California, isn't horse meat illegal, Senator? Would you have me strike down the state law as a violation of the "substantive due process" rights of Americans to eat whatever they want? There used to be a time when self-proclaimed "Constitutionalists" rejected such legislating from the bench.

Finally, Senator, the court decides cases, not issues. Frankly, I'm appalled that someone in your position didn't recognize that.

402 posted on 07/01/2010 4:25:39 AM PDT by Mojave (Ignorant and stoned - Obama's natural constituency.)
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To: Rockingham
On the specific holding in Raich, I think Scalia's rationale in his concurring opinion is preferable. Scalia identified the "necessary and proper" provision as amplifying the reach of the "substantial effects" test. That is a more nuanced test that would permit the Court to block some extensions of the Commerce Clause along the lines of Raich and Wickard by holding that they were not "necessary and proper" to a particular exercise of the Commerce Clause.

I thought he just didn't want to sign on to an opinion so filled with mentions of Wickard, so he wrote his own derivative opinion and buried Wickard in a footnote. ;)
403 posted on 07/01/2010 5:46:03 AM PDT by publiusF27
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To: publiusF27

That underestimates Scalia.


404 posted on 07/01/2010 6:19:25 AM PDT by Rockingham
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To: Rockingham

I was kidding around. More to your point, has the court ever decided a law was not constitutional because it was unnecessary or improper?


405 posted on 07/02/2010 5:20:39 AM PDT by publiusF27
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To: publiusF27
No, although in principle it could do so. In McCulloch v. Maryland, the Court invalidated a state tax on the Second Bank of the United States. In doing so, the Court held that all Federal laws need not be "absolutely necessary" to be necessary and proper. The Court reasoned that "The clause is placed among the powers of Congress, not among the limitations on those powers."

The Court went on to warn that "Should Congress, in the execution of its powers, adopt measures which are prohibited by the Constitution, or should Congress, under the pretext of executing its powers, pass laws for the accomplishment of objects not intrusted to the Government, it would become the painful duty of this tribunal, should a case requiring such a decision come before it, to say that such an act was not the law of the land."

406 posted on 07/02/2010 6:55:11 AM PDT by Rockingham
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To: Rockingham
In doing so, the Court held that all Federal laws need not be "absolutely necessary" to be necessary and proper.

Yeah, that's a problem. Given traditional deference to the legislature in deciding what is necessary or proper for them to do, I can't see Scalia's "limitation" as meaningful or applicable in the real world.

But at least he doesn't mention Wickard in every other sentence like Stevens insisted on doing. ;)
407 posted on 07/02/2010 8:59:18 AM PDT by publiusF27
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To: publiusF27

At most, Scalia was planting the seed of a potential revision in commerce clause doctrine.


408 posted on 07/02/2010 5:22:02 PM PDT by Rockingham
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