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Federalism, Up in Smoke?
NRO ^ | June 07, 2005 | Jonathan H. Adler

Posted on 06/07/2005 1:41:26 PM PDT by neverdem

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Federalism, Up in Smoke?

The Supreme Court upholds a sweeping justification of federal power.

In 1996, California became the first of nine states to decriminalize the medical use of marijuana. Although California law allows doctors to prescribe marijuana under state law, the federal Controlled Substances Act (CSA) prohibits the use, cultivation, or possession of marijuana for any purpose. Seeking relief from a variety of painful symptoms, Angel McClary Raich challenged the federal prohibition on constitutional grounds. Among other things, Raich argued that insofar as the CSA prohibited her possession and use of marijuana pursuant to a doctor’s prescription, it exceeded the scope of federal power. Such a regulation, she argued, was not a valid exercise of the federal commerce power. (For more on her arguments, see here.)

Raich prevailed in the U.S. Court of Appeals for the Ninth Circuit. The Supreme Court ruled against her Monday, however, and upheld federal bans of marijuana possession and cultivation for personal medicinal use. In a majority opinion authored by Justice John Paul Stevens, and joined by Justices Souter, Ginsburg, Kennedy, and Breyer, the Court held that the Constitution’s “commerce clause” authorizes federal regulation of such conduct under the Controlled Substances Act (CSA). Justice Antonin Scalia also concurred in the result. Only Justices O’Connor, Thomas, and Chief Justice Rehnquist dissented. Few expected the Court to rule differently. The question now is whether Gonzales v. Raich means the federalism doctrine of enumerated powers has gone up in smoke.

Gonzales v. Raich (previously Ashcroft v. Raich) is the latest in a long series of Supreme Court opinions interpreting the scope of the so-called commerce clause. Under Article I, section eight of the Constitution, Congress has the power to regulate “commerce . . . among the several states.” For most of the nation’s history, this was understood as a rather limited power, rarely invoked by Congress. When Congress first sought to exercise its regulatory muscle, in the late 19th and early 20th century, it faced a hostile court, skeptical that the power over interstate commerce authorized plenary authority over economic concerns.


In the 1930s, however, the Supreme Court reversed course, okaying one federal regulatory statute after another. In one infamous case, Wickard v. Filburn, the Court upheld the federal regulation of wheat production, even where the wheat was grown and consumed on a single farm. Farmer Filburn’s activity was neither “interstate” nor “commercial,” but was nonetheless subject to federal control. Allowing every individual farmer to grow their own wheat in excess of federal supply controls could disrupt federal efforts to regulate wheat prices, the Court explained. While no individual farmer could have a significant affect on wheat prices, the cumulative effect of all such farmers could have a “substantial effect” on interstate commerce, and so it is subject to the commerce clause.

Despite numerous challenges, the Court did not invalidate a single piece of federal legislation on commerce clause grounds for over 50 years. Then, in 1995 the Court found a law that exceeded the scope of federal power: the Gun-Free School Zones Act. Gun possession in or near a school was in no sense economic, a five-justice majority of the Court held in United States v. Lopez, and could not be reached under the commerce clause. A few years later, in United States v. Morrison, the same five justices invalidated portions of the Violence Against Women Act, again on the grounds that the regulated activity was not economic and could not have a “substantial effect” on interstate commerce.

After Lopez and Morrison, it seemed that further expansion of federal regulatory authority into local matters might be at an end. Even if the Court was not ready to overturn decades of decisions upholding extensive federal power, there was hope it would not allow Congress to go any farther under the pretense of regulating “commerce among the several states.” If nothing else, these decisions made clear that federal power had judicially enforceable limits. Raich now casts this conclusion in doubt.

Noting the Court’s interpretation of the Commerce Clause “has evolved over time,” Justice Stevens’ majority opinion in Raich held Congress’s effort to control drug abuse and illegal trafficking could be used to regulate conduct that has little relation to either. As in Wickard, the Court asserted that Congress may regulate “purely intrastate activity that is not itself ‘commercial’” if necessary for the regulation of interstate commodity markets. As in Wickard, the federal government can regulate the activity of one individual if, when aggregated together with all similarly situated people, that person’s activity will have a “substantial effect” on interstate commerce.

“That the regulation ensnares some purely intrastate activity” — such as the personal possession of marijuana for medical use — “is of no moment,” Stevens explained. Congress enacted a “lengthy and detailed statute creating a comprehensive framework for regulating the production, distribution, and possession” of controlled substances, and reasonably determined that any possession or consumption of a controlled substance could undermine the entire scheme. Even personal consumption has the potential to displace demand for marijuana in the open, albeit illegal, interstate market. So, Angel Raich is no less subject to federal power than farmer Filburn. Yet if any privately produced item that can substitute for a commercially produced good is subject to federal control, then Congressional power knows few limits. Federal regulation of commercial day care services could justify regulating child care in the home; regulation of restaurants could justify domestic food preparation; and so on.

In prior cases, the Court had only ever applied such reasoning to activities one could consider “economic.” Justice Stevens’ majority opinion accepted this rule, but adopted what Justice O’Connor termed a “breathtaking” definition of the term. The CSA regulates “quintessentially economic” activities, Stevens wrote, specifically “the production, distribution, and consumption of commodities.” This is the definition of “economics” Stevens found in the 1966 Webster’s Third New International Dictionary. Most other dictionaries, however, do not offer nearly so expansive a definition, Justice Thomas observed in dissent. But a more constrained — and common-sensical — definition of “economic” would have constrained the scope of federal power.


That Justices Stevens, Souter, Ginsburg, and Breyer — the Court’s four liberals — would be so deferential to congressional power is not surprising. All four have made clear they have little interest in constraining legislative power on federalism grounds. More disturbing is Justice Kennedy’s decision to go along for the ride without explanation. Perhaps, some surmise, this is due to his visceral hostility to drugs. Yet whatever the reason, he was not the only right-leaning justice to give a green light to the continued extension of federal power.

Concurring in the result Justice Scalia offered a “more nuanced” if only marginally less expansive, opinion. In Scalia’s view, the federal regulation of medical marijuana was justified under the “necessary and proper clause,” as such regulation is not itself the regulation of commerce. Rather, Scalia explained, Congress has the power to regulate “intrastate activities that do not themselves substantially effect interstate commerce,” if “necessary to make a regulation of interstate commerce effective.” Because marijuana is a “fungible commodity,” Congress power to control interstate drug trafficking provides sufficient basis to criminalize smoking home-grown weed pursuant to a doctor’s prescription. Indeed, Scalia concurred with the majority’s troubling conclusion that any noneconomic intrastate activity is fair game, so long as such activities are regulated “in connection with a more comprehensive scheme of regulation.”


Under Raich, it is easier for Congress to completely displace state power with a comprehensive and intrusive regulatory regime than with narrow legislation focused on a discrete and limited issue of particular federal concern. As Justice O’Connor noted in her dissent, the Court “suggests that the federal regulation of local activity is immune to commerce clause challenge because Congress chose to act with an ambitious, all-encompassing statute, rather than piecemeal.” So long as Congress could rationally conclude that the control of a noncommercial, intrastate activity is “essential” to a broader regulatory scheme, a majority of the Court appears ready to go along. This not only gives Congress the incentive to adopt more ambitious legislation, it also severely constrains any meaningful judicial check on federal power under the commerce clause.

After Lopez and Morrison, lower federal courts were exceedingly reluctant to invalidate federal statutes or regulations on commerce-clause grounds. The decisions had little bite below, as court after court upheld even the most expansive federal laws and their most intrusive applications. Courts stretched to ensure laws covering petty arsons and other local crimes would pass muster. So even if Raich does not auger more relaxed scrutiny of federal enactments, it will discourage lower courts from questioning federal actions on commerce clause or other textual grounds. The Founders sought to create a government of limited and enumerated powers. After Raich, there is reason to fear that we can’t rely on courts to enforce these constitutional limits.

Contributing Editor Jonathan H. Adler is associate professor and associate director of the Center for Business Law and Regulation at Case Western Reserve University School of Law.


 

 
http://www.nationalreview.com/adler/adler200506070921.asp
     



TOPICS: Business/Economy; Constitution/Conservatism; Crime/Corruption; Culture/Society; Editorial; Government; News/Current Events; Politics/Elections; US: California; US: District of Columbia
KEYWORDS: farout; federalism; groovy; madhippies; wowman
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1 posted on 06/07/2005 1:41:26 PM PDT by neverdem
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To: neverdem

But some of the sick people were using reefers.


2 posted on 06/07/2005 1:42:27 PM PDT by Doctor Stochastic (Vegetabilisch = chaotisch is der Charakter der Modernen. - Friedrich Schlegel)
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To: neverdem

What has been so amazing to me is to see so many alleged conservatives cheering this catastrophe for the concept of limited government.


3 posted on 06/07/2005 1:45:22 PM PDT by thoughtomator (The U.S. Constitution poses no serious threat to our form of government)
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To: thoughtomator

You're not alone. O'Connor regained some sanity. Scalia lost his. Kennedy is out to lunch as usual.


4 posted on 06/07/2005 1:55:00 PM PDT by neverdem (May you be in heaven a half hour before the devil knows that you're dead.)
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To: neverdem
Federalism Liberty, Up in Smoke?

Let's see an up or down ruling on the entire Interstate Commerce Clause by the American voters. NAFTA? CAFTA? $hit, we don't have those trade freedoms within our own damn borders.

5 posted on 06/07/2005 1:59:53 PM PDT by datura (Looking down at the bayonet sliding out of him, OBL read "Molon Labe" on the hilt.)
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To: thoughtomator

Can someone explain to me how a substance grown, transported, and consumed entirely within the borders of the State of California is a Federal matter?


6 posted on 06/07/2005 2:00:06 PM PDT by Redcloak (We'll raise up our glasses against evil forces singin' "whiskey for my men and beer for my horses!")
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To: Redcloak

It's no longer about justice, law, or the Constitution. It's merely about raw power now. They've decided WE don't have any.

I've got news for them.


7 posted on 06/07/2005 2:02:09 PM PDT by datura (Looking down at the bayonet sliding out of him, OBL read "Molon Labe" on the hilt.)
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To: neverdem

This case was hopelessly dreadlocked for years. Regardless of the outcome, I'm glad it was finally settled.


8 posted on 06/07/2005 2:03:37 PM PDT by keat (Posting code without previewing since 2004)
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To: neverdem

O'Conner using "states rights" as an explanation is maddening. This is apparently, in her mind, the only right the states have left.


9 posted on 06/07/2005 2:06:08 PM PDT by gorush (Exterminate the Moops!)
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To: Redcloak
Can someone explain to me how a substance grown, transported, and consumed entirely within the borders of the State of California is a Federal matter?

Not really, unless you want to buy the Brooklyn Bridge.

10 posted on 06/07/2005 2:10:18 PM PDT by neverdem (May you be in heaven a half hour before the devil knows that you're dead.)
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To: keat
This case was hopelessly dreadlocked for years.

Dreadlocked, you say?

(Posting code without previewing since 2004)

Oh, OK.

;^)

11 posted on 06/07/2005 2:13:10 PM PDT by DumpsterDiver
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To: DumpsterDiver
Dreadlocked, you say?

Weak attempt at humor.
12 posted on 06/07/2005 2:21:17 PM PDT by keat (Posting code without previewing since 2004)
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To: keat

How do you figure it's settled? It's just begun.


13 posted on 06/07/2005 2:23:05 PM PDT by bigfootbob
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To: keat
Weak attempt at humor.

I'm not too quick on the uptake today. I thought it was a typo.

14 posted on 06/07/2005 2:24:17 PM PDT by DumpsterDiver
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To: neverdem

Every once and a while a decision comes along like this and shows us that Thomas, and not Scalia, is the justice on the court who is most in line with the principles of limited government, individual liberty, and conservative ideas. I don't want to imply that Scalia is anything less than an outstanding justice - but he is no Thomas.


15 posted on 06/07/2005 2:25:59 PM PDT by Texas Federalist (No matter what my work/play ratio is, I am never a dull boy.)
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To: neverdem
The decision in this case was supported by the ACLU.
Legislation on gun control in California using the Commerce Clause to prohibit firearms can now move forward.

Those who thought this was about pot are gullible dupes.
...
16 posted on 06/07/2005 2:26:26 PM PDT by mugs99
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To: mugs99
The War on Drugs and Gun Control.

It isn't about guns, it's about control. It also isn't about drugs, and I think they just declared War. On US.

17 posted on 06/07/2005 2:28:56 PM PDT by Dead Corpse (Never underestimate the will of the downtrodden to lie flatter.)
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To: keat
Speaking of
...hopelessly dreadlocked...

18 posted on 06/07/2005 2:35:22 PM PDT by snarks_when_bored
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To: neverdem

I have nothing left to say. No one is listening, anyway.


19 posted on 06/07/2005 2:35:29 PM PDT by patton ("Fool," said my Muse to me, "look in thy heart, and write.")
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To: Dead Corpse
I think they just declared War. On US

I think you're right.
...
20 posted on 06/07/2005 2:46:17 PM PDT by mugs99
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To: neverdem
After a few years of pushback on federal legislation that very specifically tries to regulate state stuff, SCOTUS starts rewarding overreaching federal regulation as long as it is sweeping in the way it is justified, interstate commerce-wise.

What message does that send?

21 posted on 06/07/2005 3:00:49 PM PDT by NutCrackerBoy
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To: neverdem

Federalism died along time ago.

This Nation has been on the downward slide for a long time, and the end is in sight.


22 posted on 06/07/2005 3:02:51 PM PDT by clee1 (We use 43 muscles to frown, 17 to smile, and 2 to pull a trigger. I'm lazy and I'm tired of smiling.)
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To: keat
This case was hopelessly dreadlocked for years.

Jah, bashy mon! Dat's a funny, a true. Me a go toke now.


23 posted on 06/07/2005 3:21:53 PM PDT by rdb3 (Yeah, but what's it spelled backwards?)
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To: neverdem
You're not alone. O'Connor regained some sanity. Scalia lost his. Kennedy is out to lunch as usual.

That pretty well sums it up for me, too.

So, why did we need an 18th Amendment prohibiting "intoxicating liquors" which must surely have some effect on interstate commerce, given the majority's line of reasoning? (And the 22nd Amendment repealing the 18th was also unnecessary, no?)

24 posted on 06/07/2005 3:44:56 PM PDT by nonsporting
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To: Dead Corpse; mugs99; blackie; tpaine; JohnHuang2; traviskicks; Texas Federalist; clee1; ...
The War on Drugs and Gun Control

Connecting the War on Guns & Drugs

The war on guns

Thank you for the reminder! This is also why we don't want a Second Amendment case before this SCOTUS.

25 posted on 06/07/2005 3:51:16 PM PDT by neverdem (May you be in heaven a half hour before the devil knows that you're dead.)
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To: neverdem
"Such a regulation, she argued, was not a valid exercise of the federal commerce power."

Why did she argue this case as a commerce power issue?

Why did she not argue you the case as an Amendment IX right?

What a coincidence that it was 40 years ago today that the Supreme Court struck down a state law prohibiting the use of a contraceptive by a woman, a consenting opinion cited Amendment IX as the constitutional basis for the nullification.

What is the difference between a chemical for contraception or for pain? It is a personal, fundamental right and decision, "retained by the people," for free people to make for themselves, not for their government to make for them.

Yes, maybe it can be "regulated" for safety reasons, but it can not be "prohibited."

Remember it took a constitutional amendment to ban alcohol, why does it not take a constitutional amendment to ban marijuana?

The commerce clause power cannot violate the Bill of Rights, otherwise Congress could "regulate" the content of newspapers, which Amendment I clearly prohibits.

I cannot wait for Judges Owens and Rogers-Clark to start on the federal bench to start the reversal of these current decisions repugnant and at odds with the clear textual language of the constitution protecting our rights.

26 posted on 06/07/2005 3:58:18 PM PDT by tahiti
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To: nonsporting; Abram; Annie03; Baby Bear; bassmaner; Bernard; BJClinton; BlackbirdSST; blackeagle; ...
Well, the 18th Amendment was because...well, you know...because...

Freepatriot32's Libertarian Ping List

27 posted on 06/07/2005 4:02:20 PM PDT by LibertarianInExile (<-- sick of faux-conservatives who want federal government intervention for 'conservative things.')
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To: neverdem

28 posted on 06/07/2005 4:23:58 PM PDT by El Conservador ("No blood for oil!"... Then don't drive, you moron!!!)
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To: Redcloak
Can someone explain to me how a substance grown, transported, and consumed entirely within the borders of the State of California is a Federal matter?

Because our Masters, The Supreme Court say so.
I'm really disgusted with Scalia. He doesn't deserve to be the chief justice.
29 posted on 06/07/2005 4:29:42 PM PDT by Kozak (Anti Shahada: " There is no God named Allah, and Muhammed is his False Prophet")
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To: LibertarianInExile; All
Notice that all 3 dissenting justices were appointed by Republicans while both Clinton appointees concurred with the majority.

"If you support the war on drugs in its present form, then you're only paying lip-service to the defense of freedom, and you don't really grasp the concept of the sovereign individual human being."   and (on the "Cutie-Pie & Holmes" show):"Sean, you're afraid of freedom!"
"I told Bob Barr right here on the air that if I had a sick and dying loved one, and he stood in the way of my bringing some medical marijuana to her to relieve her pain, that I would personally kick his ass.  I don't know of anyone else who ever said that on the air to a prominent politician before." -- Neal Boortz, HERE

30 posted on 06/07/2005 4:53:45 PM PDT by FreeKeys ("You have to ask yourself, 'Who owns me? Do I own myself or am I just govt property?'"- Neal Boortz)
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To: Redcloak

Because the Feds say it is! Now quit picking on them.


31 posted on 06/07/2005 5:12:04 PM PDT by B4Ranch ( Report every illegal alien that you meet. Call 866-347-2423, Employers use 888-464-4218)
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To: rdb3
Make sure your painters don't smoke while they work!


32 posted on 06/07/2005 6:06:37 PM PDT by B4Ranch ( Report every illegal alien that you meet. Call 866-347-2423, Employers use 888-464-4218)
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To: neverdem

Thanks for the post. Interesting.


33 posted on 06/07/2005 6:15:13 PM PDT by PGalt
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To: Doctor Stochastic

>>But some of the sick people were using reefers.<<

Others used ice.


34 posted on 06/07/2005 6:23:04 PM PDT by B4Ranch ( Report every illegal alien that you meet. Call 866-347-2423, Employers use 888-464-4218)
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To: PaxMacian; WindMinstrel; philman_36; headsonpikes; cryptical; vikzilla; libertyman; Quick1; ...

Whatever your opinion on this particular case, one thing is clear. The SC just gave full permission to Congress to open up a great big can of whoop-ass on the States.


35 posted on 06/07/2005 6:26:15 PM PDT by Wolfie
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To: thoughtomator

Honestly, haven't you seen these "alleged conservatives", some of them extremely prominent here, jettison their principles right and left the last four years? Perhaps I'm more cynical than you, but my only surprise is that there aren't more.


36 posted on 06/07/2005 6:36:46 PM PDT by jammer
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To: jammer

Yes I have consistently seen them oppose the mission statement of this site. I wouldn't use the word "jettison" because any claim most of them had to being constitutionalist in the first place was dubious at best.


37 posted on 06/07/2005 6:38:20 PM PDT by thoughtomator (The U.S. Constitution poses no serious threat to our form of government)
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To: Texas Federalist

Must agree. Thomas shows himself again as the shining light of this current court. Scalia allowed his personal distaste for the consumption of cannabis to sway his decision. He knew this decision stank, thus the separate opinion, which was bunch of crap, but more legally obtuse self-justifying crap than the frankly scary majority opinion.


38 posted on 06/07/2005 6:45:28 PM PDT by ExcelJockey
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To: B4Ranch
Looks like "Happy Air's" Flagship Aircraft.

Did Ken Kesey paint it ?
39 posted on 06/07/2005 6:47:10 PM PDT by Red Sea Swimmer (Tisha5765Bav)
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To: tahiti

"Why did she argue this case as a commerce power issue?
Why did she not argue you the case as an Amendment IX right?"

Silly tahiti, there is no such thing as the Ninth Amendment. All power is delegated to the federal government now, donchaknow. It's just a matter of how much it lets the states have! God forbid the states have any powers or rights--that'd be silly in a federalist system like ours. Oops, did I say federalist? I mean unitary!


40 posted on 06/07/2005 7:11:05 PM PDT by LibertarianInExile (<-- sick of faux-conservatives who want federal government intervention for 'conservative things.')
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To: ExcelJockey

That's the one thing I have against Scalia. He is 100% great when the decision is not against his personal scruples, but when the chips are down on federalism and something he doesn't like, "necessary and proper" trumps federalism every time.


41 posted on 06/07/2005 7:21:53 PM PDT by LibertarianInExile (<-- sick of faux-conservatives who want federal government intervention for 'conservative things.')
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To: thoughtomator

Yes. That word jettison is wrong. Thanks for calling my attention to it. As you point out, justifying one's actions in the name of principle is not necessarily the same as actually holding those principles.


42 posted on 06/07/2005 8:19:20 PM PDT by jammer
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To: neverdem
Mourn the death of liberaltarianism!

And remember, kids: Charlie loves you!





[Little irony, sarcasm and morbid humor there.]
43 posted on 06/07/2005 8:51:07 PM PDT by familyop ("Let us try" sounds better, don't you think? "Essayons" is so...Latin.)
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To: Wolfie

Justice Thomas' opinion on this case was EXACTLY correct.


44 posted on 06/08/2005 12:05:05 AM PDT by Quick1
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To: keat
This case was hopelessly dreadlocked for years. Regardless of the outcome, I'm glad it was finally settled.

It's about time, mon.

45 posted on 06/08/2005 12:22:42 AM PDT by Tolerance Sucks Rocks (Deport them all; let Fox sort them out!)
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To: thoughtomator
What has been so amazing to me is to see so many alleged conservatives cheering this catastrophe for the concept of limited government.

Remember, this case was brought before the Court by the Bush Administration: Ashcroft vs. Raich.

46 posted on 06/08/2005 4:05:21 AM PDT by raybbr
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To: raybbr

Well, I haven't been under the illusion that George "compassion for illegals, not for cancer patients" Bush is a conservative for quite some time now.


47 posted on 06/08/2005 6:34:09 AM PDT by thoughtomator (The U.S. Constitution poses no serious threat to our form of government)
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To: neverdem
The Second Amendment...
America's Original Homeland Security!

Be Ever Vigilant!

48 posted on 06/08/2005 8:00:58 AM PDT by blackie (Be Well~Be Armed~Be Safe~Molon Labe!)
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To: NutCrackerBoy
SCOTUS starts rewarding overreaching federal regulation as long as it is sweeping in the way it is justified, interstate commerce-wise. What message does that send?

It tells Congress that its laws need to be as expansive and all-encompassing as possible. The bigger the intrusion, the more likely the law will be upheld.

49 posted on 06/09/2005 11:08:29 AM PDT by Sandy
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To: neverdem
Only Justices O’Connor, Thomas, and Chief Justice Rehnquist dissented. Few expected the Court to rule differently

I expected the Court to rule against Raich, but I thought that Rehnquist would write the opinion and reason it so as to keep Lopez and Morrison intact. Unfortunately, the decision turned out to be way worse than I had expected. Lopez and Morrison are essentially dead, so much so that Rehnquist couldn't even join the majority so as to at least limit the damage by writing the opinion himself.

Expectations to contrary notwithstanding, Rehnquist won't be resigning after this term. He has too much damage control to do yet. Unless his death is imminent, he's staying. IMHO.

50 posted on 06/09/2005 11:23:39 AM PDT by Sandy
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