Pursuant to our recent discussions, I would urge people interested in issues of federal power to actually read the Raich opinions, just as it’s useful to actually read Wickard. The Stevens opinion for the Court is a very clear description of the relevant doctrines and persuasively explains why the actions of the government were, while wrong as a policy matter, constitutional. And while I’m sure Ginsburg extensively quoted Scalia’s concurrence in Sebelius partly to tweak him, she also did so because it’s brilliant. Congress has the power to regulate interstate markets, and it also has the power to pass regulations necessary to effectuate these regulations, even if the additional regulations reach behavior that is local or noncommercial. (Here’s one tip, gleaned from having taught these cases multiple times: if someone tells you that the Supreme Court found that Raich and Monson were themselves “engaged in interstate commerce,” you know that either they haven’t read the opinion or don’t understand it.) As long as the connection between the broader scheme and the regulation is rational, the courts should defer to Congress’s judgment.
Still, I can see a counter. The War on (Some Classes of People Who Use Some) Drugs is a moral catastrophe. Aren’t liberals entitled to their own cynical uses of federalism? I don’t think you could write a Raich opinion I would want to join, but perhaps you could write one that wouldn’t do much damage. You could begin by emphasizing that Wickard was correct and remains good law. As all three Raich dissenters did, you could certainly distinguish the cases. Raich is more like Wickard than Lopez because there’s a connection to a broader regulatory framework, but the link between the CSA and the actions of Riach and Monson is more attenuated than the link between the AAA and Filburn. (The quotas at issue in Wickard by definition applied only to commercial farms of significant size; the CSA is less discriminate.) If you could write a decision narrowly enough to protect people like Riach without threatening the regulatory state, what’s the harm?
Well, first of all, if you wrote the opinion that narrowly the effect on the W O (scopwus) D would be trivial. Raich presented a relatively unusual set of facts for a federal action. Cases involving the purchase of controlled substance, large-scale possession, distribution, links to firearms, and/or links money laundering could all go forward — in other words, the federal level of the drug war would pretty much proceed as usual. At the state level, Raich would not help at all. The negligible benefits of restricting the federal power to destroy small amounts of homegrown marijuana do not justify the risk of narrowing the federal commerce power.
Alternatively, you could write a broader opinion that might undermine more federal actions under the CSA — but there’s no way of writing such an opinion that wouldn’t threaten huge swaths of the federal regulatory state. If Wickard is overruled — if the federal government cannot regulate activities that are not interstate commerce even it deems them necessary to a broader regulation of an interstate market — then the Affordable Care Act is unconstitutional, a great deal of environmental regulation is unconstitutional, and so on. Sure, as Scalia and Kennedy showed if you’re hacky enough you find a reason to uphold or not uphold anything, but since a liberal has no reason to believe that a liberal will typically occupy the median vote of the Supreme Court, hoping that the Supreme Court will use more aggressive federalism doctrines to strike down laws you don’t like without striking down laws you do like would be really dumb.
Indeed, the idea that the commerce power could be used to attack the war on drugs without threatening other aspects of the federal regulatory scheme is, if you know anything about the history of the Supreme Court, almost painfully ignorant and naive. The federal courts are, in fact, particularly unlikely to apply their discretion to narrow the ability of the government to enforce drug laws. Raich itself is an excellent argument against the idea of applying more heightened levels of scrutiny to the necessary and proper clause in the hope of stopping the drug war.
The Court’s judgment in Raich was sound. As Sebelius and Shelby County demonstrate, once the courts stop deferring to reasonable congressional judgments about what is “necessary and proper” or “appropriate,” a great deal of mischief can ensue, and the court’s judgments about what is “proper” and “appropriate” will be inherently arbitrary and political. The consensus the Court reached about federal power in the wake of the New Deal made sense, and revising it would be a terrible idea.