As we get ready for tomorrow’s decision, I think it’s good to be aware of what legal standard Antonin Scalia will be using to decides the case. The best way to do so is to revisit his secret unpublished opinion in an obscure successor to Raich:
Article I, Section 8 grants Congress the power to regulate interstate commerce. In recent years, the Court’s commerce clause analysis has been accused of being “unclear” and “results-driven.” See Bork, R., What the Fuck Is Up With Scalia in Raich?, 118 Harv. L. Rev 211, 213-14 (2005). Specifically, critics have pointed to the seeming inconsistency between the Court’s decision in Morrison and its decision in Raich (cases coincidentally involving similar facts at the case at issue here). Id. at 215. See also Aging Hippy Liberal Douche, A Post-Modernist Perspective on the Habermasian Dialectic Inherent in Scalia’s Commerce Clause Analysis, 98 Yale L.J. 1201, 1210-11 (2004).
The lower courts have also failed to find a meaningful distinction between the laws struck down by the Court and those upheld. See, e.g., Vedder v. Cobain, 321 F.3d 12, 15 (2004) (Posner, J., dissenting) (“What the fuck is up with Scalia in Raich?”).
In light of this criticism, the Court today announces a new clear standard to guide lower courts in their application of the commerce clause. This new standard will govern when a law exceeds Congress’s power under the commerce clause and when it does not. The new standard is this – a law passed pursuant to the commerce clause is constitutional if Justice Scalia likes the law and unconstitutional if he does not. Similarly, if the law is regulating things that Justice Scalia wants regulated, it is constitutional. If it does not, it is not.
While this new standard is a marked improvement over our prior doctrine, we recognize that lower courts will need additional guidance in determining just what Justice Scalia likes and dislikes. Although multi-factored balancing tests are generally for commie pinkos and Justice Kennedy, there is not always a clear answer to these questions. Instead, lower courts must look at the many things Justice Scalia likes and dislikes and then determine how the law relates to them.
For instance, Justice Scalia dislikes many things – hippies, long-haired hippies, hippies with beards, long-haired hippies wearing sandals, the homosexual agenda, assisted-physician suicide, Will & Grace, long-haired bearded hippies wearing sandals, long-haired hippies wearing sandals and burning flags, the Florida Supreme Court, Justice Kennedy, Satan, the New Deal, and the equal protection clause.
On the other hand, Justice Scalia likes many things – police, police arresting hippies, laws criminalizing drug possession, laws criminalizing drug possession by hippies, duck hunting, barbeque, John Ashcroft, Jesus, and the equal protection clause in the context of presidential elections.
Alas, I think the opinion will prove to be highly influential. Thanks to Publius for uncovering it.