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Scalia and the Commerce Clause
National Review ^ | Feburary 9, 2011 | Robert VerBruggen

Posted on 02/09/2011 8:53:15 AM PST by Hawk720

As the challenge to Obamacare’s constitutionality approaches the Supreme Court, the question on everyone’s mind is: How will Anthony Kennedy vote? But perhaps we should also ask: How will Antonin Scalia vote? Scalia is known as one of the Court’s most conservative justices, but a concurrence he wrote in a 2005 case should give opponents of the health-care law pause.

(Excerpt) Read more at nationalreview.com ...


TOPICS: Constitution/Conservatism; Crime/Corruption; Editorial; News/Current Events; Politics/Elections
KEYWORDS: antoninscalia; commerceclause; constitution; healthcare; obamacare; scalia

1 posted on 02/09/2011 8:53:16 AM PST by Hawk720
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To: Hawk720

This should be done by our so called representatives. Not the Court system.


2 posted on 02/09/2011 8:54:41 AM PST by screaminsunshine (34 States)
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To: Hawk720

Maybe they should determine if the presidential signature on that law is valid first.


3 posted on 02/09/2011 9:03:40 AM PST by Safrguns
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To: Hawk720

Although I am not in favor of pot legalization, I said at the time that Scalia’s reasoning in the Raich case would come back to bite him on the butt. The war on drugs has done more to pervert the constitution than any other cause. Why is it that otherwise rational, conservative constitutionally solid Justices will turn the constitution into a pretzel in their attempts to uphold clearly unconstitutional drug enforcement laws?


4 posted on 02/09/2011 9:04:06 AM PST by circlecity
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To: circlecity

That’s why if repealed, it won’t hit the SCOTUS


5 posted on 02/09/2011 9:09:06 AM PST by nikos1121
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To: circlecity

I said something similar to Scalia’s ruling in Raich, but it was in a firearms thread about how it related to Stewart vs. US when that was sent back to the Ninth Circuit Court to be reviewed in light of the Raich decision -— ultimately, I did say that if Stewart’s victory was overturned, then Obamacare might have an ally in Scalia if a challenge comes to SCOTUS, but I just used that for demonstration purposes about an entirely different point.


6 posted on 02/09/2011 9:10:43 AM PST by The KG9 Kid
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To: Hawk720

Let me be the first to say, that if Justice Scalia votes in favor of the Obamacare crap sandwich, given the fact that he knows full well what RR thought of socialized medicine...that this lady will simply jump off a bridge in despair.

I’ll find a bridge in S. Utah, trust me.

And I’ll know I’m not long for this world.


7 posted on 02/09/2011 9:10:47 AM PST by Daisyjane69 (Michael Reagan: "Welcome back, Dad, even if you're wearing a dress and bearing children this time)
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To: Hawk720

Well, it was a questionable decision, no doubt. But drugs are something people SELL, and even if someone isn’t selling his own pet plants, it effects the market in drugs.

Gubbermint-mandated health insurance isn’t something anyone is selling. It’s something the Gubbermint wants to force you to buy.

So, I’m still hopeful on this.


8 posted on 02/09/2011 9:10:57 AM PST by Cicero (Marcus Tullius)
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To: Hawk720

Don’t worry. Scalia finds ways to twist around to suit his personal agenda. Hence he was on the right side of a gun-control commerce clause case, and on the wrong side of a marijuana-control commerce clause case.


9 posted on 02/09/2011 9:18:01 AM PST by Huck (one per-center)
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To: Hawk720
True enough, the situations are different. But the Obamacare case offers Scalia a chance to fight the expansion of the Commerce Clause — and in Raich, he declined to do just that.

He didn' just decline to fight the expansion of the CC. He helped to reaffirm, and thus solidify, one of the most expansionist CC rulings of the last century. By reaffirming Wickard, he basically helped kill any hope of a "limited" government.

10 posted on 02/09/2011 9:22:17 AM PST by Huck (one per-center)
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To: Hawk720

Just where in the commie (commerce) clause are the words “the People”? Then why does it give government the power to regulate commerce between “the People”? And where does it say congress can regulate stuff that “might affect commerce”? Do we put people in jail because they “might” commit a crime? I guess with the black robed terrorists we have in the supreme court, that just “might” happen!


11 posted on 02/09/2011 9:23:36 AM PST by government is the beast (In the last century, an estimated 262 million people have been murderd by their own government)
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To: Huck
Scalia finds ways to twist around to suit his personal agenda.

Bullsh!t.

12 posted on 02/09/2011 9:26:18 AM PST by subterfuge (BUILD MORE NUCLEAR POWER PLANTS NOW!!!)
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To: subterfuge
Interesting argument, but not compelling. Ever read Raich? Or Wickard?
13 posted on 02/09/2011 9:30:52 AM PST by Huck (one per-center)
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To: subterfuge

Then there was that Playboy case, I forget the name. Clarence Thomas is solid and consistent. Scalia is squishy on social issues.


14 posted on 02/09/2011 9:32:44 AM PST by Huck (one per-center)
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To: Huck

Yeah, I have a way with words. If Scalia twists things to his agenda, as you say, well, we all might as well move to China, because it is already over in this country.

Haven’t read Raich or Wickard.


15 posted on 02/09/2011 9:34:07 AM PST by subterfuge (BUILD MORE NUCLEAR POWER PLANTS NOW!!!)
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To: government is the beast
Then why does it give government the power to regulate commerce between “the People”? And where does it say congress can regulate stuff that “might affect commerce”?

Two reasons. First, because the Constitution created an unaccountable, supreme judiciary that gets to decide what the words of the Constitution mean, without appeal. Second, because the framers, over the objections of the anti-feds, shot down every attempt to make the Constitution a document of "expressly delegated" powers only, choosing instead to create "implied powers."

Implied powers + Article 3 = unlimited government.

It's a fundamental flaw in the system.

16 posted on 02/09/2011 9:35:49 AM PST by Huck (one per-center)
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To: subterfuge
Scalia is shaky whenever social issues are involved. You can always tell when that's the case--whenever Thomas and Scalia are on opposite sides of a decision.

Limited government has been over for a long, long time. I wouldn't take it so hard. It's outside your control. China? Yuck.

17 posted on 02/09/2011 9:37:35 AM PST by Huck (one per-center)
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To: subterfuge

I wrote an essay about it here

http://www.freerepublic.com/focus/news/2363918/posts?page=179


18 posted on 02/09/2011 9:40:10 AM PST by Huck (one per-center)
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To: Hawk720

By the title I figured they were talking about Gonzales v. Raich. Scalia really screwed that one up, abandoning any principle of a constitutionally limited federal government. Thomas’ dissent nailed it, and even O’Connor’s wasn’t bad.


19 posted on 02/09/2011 10:04:30 AM PST by antiRepublicrat
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To: Cicero

“But drugs are something people SELL, and even if someone isn’t selling his own pet plants, it effects the market in drugs.”

Maybe... but that market is not something that is legally regulated, it’s a black market. So, it’s not really sensible that the Justices were worried that a pot grower was negatively affecting the price of goods for legitimate pot dealers :)

That argument is almost like saying... you can’t have sex with your wife because that would negatively affect the prices in the prostitution market.


20 posted on 02/09/2011 10:07:27 AM PST by Boogieman
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To: Huck

“Limited government has been over for a long, long time. I wouldn’t take it so hard. It’s outside your control.”

I’m glad the founding fathers didn’t subscribe to such pessimism.


21 posted on 02/09/2011 10:09:38 AM PST by Boogieman
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To: Safrguns

The courts have said American serfs have no standing in questiong usurpers. Sick.


22 posted on 02/09/2011 10:10:28 AM PST by Frantzie (HD TV - Total Brain-washing now in High Def. 3-D Coming soon)
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To: Daisyjane69

“this lady will simply jump off a bridge in despair.”

You’re not patient enough to wait for a decision by a death panel?


23 posted on 02/09/2011 10:12:09 AM PST by DrC
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To: Huck
The Constitution created an unaccountable, supreme judiciary that gets to decide what the words of the Constitution mean, without appeal.

I say that is an untrue statement. The Constitution did not specify exactly how disputes among the branches should be resolved. It is only in practice and precedent that the judicial has that power.

24 posted on 02/09/2011 10:22:39 AM PST by NutCrackerBoy
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To: DrC

Not only must we buy insurance, but we are forbidden from purchasing it across state lines. And in NY we are forced to buy it from ‘non-for-profit’ HMO’s who don’t pay any taxes and who have stockpiled billions and whose executives get multi-million dollar salaries. To hell with the Constitution. Meet me at that bridge.


25 posted on 02/09/2011 10:28:18 AM PST by privatedrive
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To: subterfuge
If Scalia twists things to his agenda, as you say, well, we all might as well move to China, because it is already over in this country.

Haven't read Raich or Wickard.

______________________________________

From Scalia's decision in Raich:

...the authority to enact laws necessary and proper for the regulation of interstate commerce is not limited to laws governing intrastate activities that substantially affect interstate commerce. Where necessary to make a regulation of interstate commerce effective, Congress may regulate even those intrastate activities that do not themselves substantially affect interstate commerce.

http://www.law.cornell.edu/supct/html/03-1454.ZC.html

______________________________________

1. Do you agree or disagree with Scalia?

2. Do you think he is being true to the original understanding of the Commerce Clause?

3. If your answer to #2 is "No", why do you think he wrote what he did?

26 posted on 02/09/2011 11:30:07 AM PST by Ken H
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To: NutCrackerBoy

It was well understood and documented at the time that the judiciary would interpret con. law. Hamilton said so in Federalist 78 (approvingly) and Brutus said the same (disapprovingly) in his number 78-84.


27 posted on 02/09/2011 11:44:01 AM PST by Huck (one per-center)
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To: Hawk720
“Some people say drugs were involved [in Raich], and that may have influenced some of the justices.”

That sentence is a lot funnier than the author intended it to be.

28 posted on 02/09/2011 11:47:18 AM PST by Constitutionalist Conservative (Two blogs for the price of none!)
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To: Boogieman

Their situation was much different than ours.


29 posted on 02/09/2011 11:49:00 AM PST by Huck (one per-center)
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To: Ken H

I do have to answer No on #2 and I can’t imagine how he arrives at that conclusion. Is this the one in reference to the War on drugs, etc?


30 posted on 02/09/2011 1:17:05 PM PST by subterfuge (BUILD MORE NUCLEAR POWER PLANTS NOW!!!)
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To: Huck

Well done. Thanks Huck. Now i understand.


31 posted on 02/09/2011 1:22:35 PM PST by subterfuge (BUILD MORE NUCLEAR POWER PLANTS NOW!!!)
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To: subterfuge
Thanks man. I hate to always be the bearer of bad news. Scalia talks a good game, but definitely gets off the bus here and there. We're safe on this Obamacare though, because he's got no reason to be for it. The activity/inactivity will most likely be the line of attack.

The bad news is that even so, commerce clause power is massive, and even Scalia has been willing to uphold it when it suits him. Sad but true.

32 posted on 02/09/2011 1:39:18 PM PST by Huck (one per-center)
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To: subterfuge
Is this the one in reference to the War on drugs, etc?

Yes. It was the California medical pot case.

33 posted on 02/09/2011 8:08:46 PM PST by Ken H
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To: Daisyjane69

Don’t despair. That’s what the Left wants. They tyrannize others into submission because it pleases them. Don’t submit and give them the satisfaction.


34 posted on 02/13/2011 10:08:39 PM PST by TheThinker (Communists: taking over the world one kooky doomsday scenario at a time.)
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To: circlecity
Why is it that otherwise rational, conservative constitutionally solid Justices will turn the constitution into a pretzel in their attempts to uphold clearly unconstitutional drug enforcement laws?

Because they don't want to see your kids' brains turned into pretzels?

Because they don't want to live in an America in which 40% of the population is living on public support blowing dope?

Because they've read about the Opium Wars and what happened to Chinese society?

Pick one.

35 posted on 02/14/2011 12:00:58 AM PST by lentulusgracchus (Concealed carry is a pro-life position.)
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To: Huck
Saw your essay about judicial review and the Commerce Clause on that 18-month-old thread.

Belated suggestions for constitutional fixes:

Just a couple of suggestions.

36 posted on 02/14/2011 12:47:35 AM PST by lentulusgracchus (Concealed carry is a pro-life position.)
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To: lentulusgracchus

Well, if the ends are all that matter then lets just get rid of the constitution all together. We’ll just let the Supreme Court make it up as they go and give them absolute power to protect us from that terrible drug menace. Certainly a drug free society is more important than a constitution. Even though there has never been a drug free society in world history.


37 posted on 02/14/2011 4:23:56 AM PST by circlecity
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To: Huck
Thanks for posting that. You make one hell of a powerful argument. It seems obvious that the problem isn't with the Commerce Clause per se; it has been stretched so far from its original meaning that it could have easily been another clause used to justify omnipotent Federal power.

The quotation that you pulled from Anti-Federalist 82 was damned prescient:

They will be able to extend the limits of the general government gradually, and by insensible degrees, and to accommodate themselves to the temper of the people. Their decisions on the meaning of the constitution will commonly take place in cases which arise between individuals, with which the public will not be generally acquainted. One adjudication will form a precedent to the next, and this to a following one.
And shame on Scalia for not putting a dagger into Wickard.
38 posted on 02/14/2011 6:59:10 AM PST by thecabal (Destroy Progressivism)
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