Regulating My Dinner

 Posted by on 8 June 2005 at 6:11 am  Uncategorized
Jun 082005

By the principle adopted by the majority in the recent medical marijuana case, Gonzales v. Raich, my preparation of pork chops last night could be justly subject to almost any federal regulation via the commerce clause. I kid you not.

In case you’ve forgotten, let me remind you of the little that the Commerce Clause actually says: “The Congress shall have Power … To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.” Although the wording is perhaps a bit too vague, the power regulate commerce between the states cannot be plausibly understood as the power to pass any law whatsoever, so long as the activity in question is somehow or other connected to interstate commerce. Yet the recent Supreme Court decision basically said just that. Although my understanding of the history of the commerce clause is somewhat sketchy, I suspect that this decision constitutes the most absurdly expansive reading to date.

Jonathan Adler’s dissection of the logic of the argument is quite enlightening. (The whole article is well worth reading, as it discusses some of the history of the commerce clause. I’m just quoting a bit of it here.)

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 regulating domestic food preparation; and so on.

So yes, Congress could decide to regulate what meats we all cook on which days of the week under this reading of the commerce clause, given the impact of such choices upon the interstate traffic in animal products for human consumption.

Are the majority justices so incapable of thinking in principle that they failed to see the straightforward implications of their argument? Probably not, since it seems that the minority dissent pointed them out well enough. More likely, they were happy to put another stake through the heart of the principle of enumerated powers.

As if that weren’t enough, another disturbing consequence of the majority opinion is that it encourages massive regulatory schemes, rather than narrowly-tailored laws:

Under Raich, it is easier for Congress completely to 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.

Oh, lovely.

Update: For a bit of insight into the proclivities of the current Supreme Court, see this post by Orin Kerr.

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