Gonzales v. Raich
“California is one of at least nine States that authorize the use of marijuana for medicinal purposes.[1] The question presented in this case is whether the power vested in Congress by Article I, § 8, of the Constitution "[t]o make all Laws which shall be necessary and proper for carrying into Execution" its authority to "regulate Commerce with foreign Nations, and among the several States" includes the power to prohibit the local cultivation and use of marijuana in compliance with California law.”
The court is here presented with activities solely preformed in one state and explicitly legal as per the laws of that State. The court will find that this is commerce among several states though no portion of the events where happened out side California and that the activities were not commerce.
“On August 15, 2002, county deputy sheriffs and agents from the federal Drug Enforcement Administration (DEA) came to Monson's home. After a thorough investigation, the county officials concluded that her use of marijuana was entirely lawful as a matter of California law. Nevertheless, after a 3-hour standoff, the federal agents seized and destroyed all six of her cannabis plants. ”
Here Ms. Monson has suffered harm though and will be unable to effect her right to petition for redress. The court would have no problem concluding that the 3rd Amendment is present to them was unable on it face to prevent the housing of soldier in private residences if that housing was ordered by law because the “but in a manner to be prescribed by law” would be found to be the primary component of the Amendment and even if it wasn't the interest of the government in housing troop justifies the compulsion of consent of the owners of the residences.
The court then discusses the legal course of appeals. And shows that those finding in favor of a possible find site United States v. Lopez and United States v. Morrison while those opposed to rest on the faulty ground of Wickard v. Filburn.
“The obvious importance of the case prompted our grant of certiorari. 542 U. S. 936 (2004). The case is made difficult by respondents' strong arguments that they will suffer irreparable harm because, despite a congressional finding to the contrary, marijuana does have valid therapeutic purposes. The question before us, however, is not whether it is wise to enforce the statute in these circumstances; rather, it is whether Congress' power to regulate interstate markets for medicinal substances encompasses the portions of those markets that are supplied with drugs produced and consumed locally. Well-settled law controls our answer. The CSA is a valid exercise of federal power, even as applied to the troubling facts of this case. We accordingly vacate the judgment of the Court of Appeals. ”
Bad law made good with time. It is the courts view that an abuse if long standing ceases to be injurious but becomes just and right.
“This was not, however, Congress' first attempt to regulate the national market in drugs. Rather, as early as 1906 Congress enacted federal legislation imposing labeling regulations on medications and prohibiting the manufacture or shipment of any adulterated or misbranded drug traveling in interstate commerce.[11] Aside from these labeling restrictions, most domestic drug regulations prior to 1970 generally came in the guise of revenue laws, with the Department of the Treasury serving as the Federal Government's primary enforcer. ”
The court will fail to see the distinction between the power to tax and to control interstate commerce and the board control excreted by the CSA.
“Marijuana itself was not significantly regulated by the Federal Government until 1937 when accounts of marijuana's addictive qualities and physiological effects, paired with dissatisfaction with enforcement efforts at state and local levels, prompted Congress to pass the Marihuana Tax Act, 50 Stat. 551 (repealed 1970).[14] Like the Harrison Act, the Marihuana Tax Act did not outlaw the possession or sale of marijuana outright. Rather, it imposed registration and reporting requirements for all individuals importing, producing, selling, or dealing in marijuana, and required the payment of annual taxes in addition to transfer taxes whenever the drug changed hands.[15] Moreover, doctors wishing to prescribe marijuana for medical purposes were required to comply with rather burdensome administrative requirements.[16] Noncompliance exposed traffickers to severe federal penalties, whereas compliance would often subject them to prosecution under state law.[17] Thus, while the Marihuana Tax Act did not declare the drug illegal per se, the onerous administrative requirements, the prohibitively expensive taxes, and the risks attendant on compliance practically curtailed the marijuana trade. ”
Here the false parallel is drawn between the effects a burdensome Tax act and the CSA but it ignores the role of State in the creation of the end result. It does not acknowledge that while possible oppressive compliance with federal Tax law did not have the effect of a prohibition in the absences of State action. To claim that because to actor may through their joint exercise of power effect a result that one of the may then effect the same result against the will of the other is to abolish and usurp all the rights the States.
“Then in 1970, after declaration of the national "war on drugs," federal drug policy underwent a significant transformation. A number of noteworthy events precipitated 12*12 this policy shift. First, in Leary v. United States, 395 U. S. 6 (1969), this Court held certain provisions of the Marihuana Tax Act and other narcotics legislation unconstitutional. Second, at the end of his term, President Johnson fundamentally reorganized the federal drug control agencies. The Bureau of Narcotics, then housed in the Department of Treasury, merged with the Bureau of Drug Abuse Control, then housed in the Department of Health, Education, and Welfare (HEW), to create the Bureau of Narcotics and Dangerous Drugs, currently housed in the Department of Justice.[18] Finally, prompted by a perceived need to consolidate the growing number of piecemeal drug laws and to enhance federal drug enforcement powers, Congress enacted the Comprehensive Drug Abuse Prevention and Control Act.[19]”
Here the court uses the correction of a previous injustice to justify the imposition of a new one. In Leary v. United States the court found that it was a violation of the 5th Amendment to require that a citizen provide information to pay a Tax if he might suffer prosecution as a result as may be the case with drugs since they may be illegal as per State or local law. The court further found that by creating a nominal Tax with such restrictions that it could not be paid was in effect a band and as such was “ultra vires”, an act that exceeded the scope of federal authority.
Leary v. United States is less strong on the criminalization of possession as a finding of the violation of the Tax. I think that such a holding in the law is conflict with the presumption of innocence that is a fundamental part of US jurisprudence as found in Coffin v. United States. While possession is clear evidence against an accused for the crime of possession it can not be justly found the equate to all the necessary evidence for the commission of a crime such a avoiding a Tax relating to the object found in the accused's possession. In my view statutory equivalency is not a valid exercise of the law if the objective sought but the law is beyond the bounds of the government's powers equating it to something within its power is insufficient to allow it that authority. The court however found that “The upshot of Tot, Gainey, and Romano is, we think, that a criminal statutory presumption must be regarded as "irrational" or "arbitrary," and hence unconstitutional, unless it can at least be said with substantial assurance that the presumed fact is more likely than not to flow from the proved fact on which it is made to depend.”. I think “more likely than not” is a bad standard and that but I would be willing to accept “assured” or “inevitably” as a standard of justification allowing this sort of equivalency. The court does find that on the basis of knowledge of ordinary users on origin of their marihuana that they could not be held to know or to “naturally” conclude their particular marihuana had been imported and thus it was improper to hold their possession equivalent to the avoidance of the Tax required. This is an odd standard as it limits the power of government based upon the informed status of citizens for example if there had been an inescapable media campaign on the origin of marihuana consumed in the US then the court's ruling could have been held to be different. In fact the courts own findings in this case could be held to inform users as to the likely origin of their marihuana thus validating the law the court invalidated here. I think that only those who actually commit crimes can justly be held to liable for those crimes and on that basis equating possession with failure to pay an import tax is unjust in the absence of evidence of importation by the accused.
But in any case, a finding of Congressional over each is a odd thing to serve as the basis for additional Congressional reach.
“Title II of that Act, the CSA, repealed most of the earlier antidrug laws in favor of a comprehensive regime to combat the international and interstate traffic in illicit drugs. The main objectives of the CSA were to conquer drug abuse and to control the legitimate and illegitimate traffic in controlled substances.[20] Congress was particularly concerned with the 13*13 need to prevent the diversion of drugs from legitimate to illicit channels.[21]
To effectuate these goals, Congress devised a closed regulatory system making it unlawful to manufacture, distribute, dispense, or possess any controlled substance except in a manner authorized by the CSA. 21 U. S. C. §§ 841(a)(1), 844(a).”
Here Congress exceeds its authority. While it may wish the power to control actions not in and of themselves commerce among several States it does not justly have that power. Thus manufacturing, internal State distribution and dispensing, as well as possession are beyond its domain.
“Respondents in this case do not dispute that passage of the CSA, as part of the Comprehensive Drug Abuse Prevention and Control Act, was well within Congress' commerce power. Brief for Respondents 22, 38. Nor do they contend that any provision or section of the CSA amounts to an unconstitutional exercise of congressional authority ”
This is sad since it is here that the legitimate grounds for action lies. As we shall see any grant of authority is a universal grant.
“Rather, respondents' challenge is actually quite limited; they argue that the CSA's categorical prohibition of the manufacture and possession of marijuana as applied to the intrastate manufacture and possession of marijuana for medical purposes pursuant to California law exceeds Congress' authority under the Commerce Clause.”
This is their concern and as thus it can be understood why they failed to see that it is nessecary to confront the general abuse of authority to correct the derivative abuse.
“Cases decided during that "new era," which now spans more than a century, have identified three general categories of regulation in which Congress is authorized to engage under its commerce power. First, Congress can regulate the channels of interstate commerce. Perez v. United States, 402 U. S. 146, 150 (1971). Second, Congress has authority to regulate and protect the instrumentalities of interstate commerce, and persons or things in interstate 17*17 commerce. Ibid. Third, Congress has the power to regulate activities that substantially affect interstate commerce. Ibid.; NLRB v. Jones & Laughlin Steel Corp., 301 U. S. 1, 37 (1937). Only the third category is implicated in the case at hand. ”
Interestingly only third category is beyond federal authority.
“Our case law firmly establishes Congress' power to regulate purely local activities that are part of an economic "class of activities" that have a substantial effect on interstate commerce. See, e. g., Perez, 402 U. S., at 151; Wickard v. Filburn, 317 U. S. 111, 128-129 (1942). As we stated in Wickard, "even if appellee's activity be local and though it may not be regarded as commerce, it may still, whatever its nature, be reached by Congress if it exerts a substantial economic effect on interstate commerce." Id., at 125. ”
And a Dictatorship is a Democracy because all decisions have the support of the only enfranchised citizen. This is an unlimited grant of power inconsistent with any real limits. I have covered Wickard v Filburn in depth and have found is devoid of just foundation. Perez v United States is about a loan shark and whether his criminal threats and extortion fall under Federal jurisdiction. While interstate lending may justly be regulated by Congress the action in question were not interstate. In the words of Justice Stewart's dissident “In order to sustain this law we would, in my view, have to be able at the least to say that Congress could rationally have concluded that loan sharking is an activity with interstate attributes that distinguish it in some substantial respect from other local crime. But it is not enough to say that loan sharking is a national problem, for all crime is a national problem. It is not enough to say that some loan sharking has interstate characteristics, for any crime may have an interstate setting. And the circumstance that loan sharking has an adverse impact on interstate business is not a distinguishing attribute, for interstate business suffers from almost all criminal activity, be it shoplifting or violence in the streets. ”
“When Congress decides that the "`total incidence'" of a practice poses a threat to a national market, it may regulate the entire class. See Perez, 402 U. S., at 154-155 (quoting Westfall v. United States, 274 U. S. 256, 259 (1927) ("`[W]hen it is necessary in order to prevent an evil to make the law embrace more than the precise thing to be prevented it may do so'")). ”
Need does not grant ability which is the entire thrust of the Westfall decision. A society of laws must abide by the laws that govern it. To allow any part of it to ignore the law on the basis that doing is necessary because of the difficulty of compliance with the law is to negate the law in its entirety and to place in its stead power as the only surety.
“In this vein, we have reiterated that when "`a general regulatory statute bears a substantial relation to commerce, the de minimis character of individual instances arising under that statute is of no consequence.'" E. g., Lopez, 514 U. S., at 558 (emphasis deleted) (quoting Maryland v. Wirtz, 392 U. S. 183, 196, n. 27 (1968)). ”
In the words of Justice Douglas's dissent in Maryland v Wirtz “The Court's opinion skillfully brings employees of state-owned enterprises within the reach of the Commerce Clause; and as an exercise in semantics it is unexceptionable if congressional federalism is the standard. But what is done here is nonetheless such a serious invasion of state sovereignty protected by the Tenth Amendment that it is in my view not consistent with our constitutional federalism. ”.
“Wickard thus establishes that Congress can regulate purely intrastate activity that is not itself "commercial," in that it is not produced for sale, if it concludes that failure to regulate that class of activity would undercut the regulation of the interstate market in that commodity.”
The courts failure to see any distinction between “regulate” and “control” is deeply disturbing. By expanding the conception of regulation to include the outcomes of commerce it necessitates control over both supply and demand which should rightly stand beyond the sphere of regulation while directing the outcome of commerce. Regulation may justly mediate between supply and demand but many not justly direct, prohibit, or create them.
“While the diversion of homegrown wheat tended to frustrate the federal interest in stabilizing prices by regulating the volume of commercial transactions in the interstate market, the diversion of homegrown marijuana tends to frustrate the federal interest in eliminating commercial transactions in the interstate market in their entirety. In both cases, the regulation is squarely within Congress' commerce power because production of the commodity meant for home consumption, be it wheat or marijuana, has a substantial effect on supply and demand in the national market for that commodity.”
I do not believe that regulation of commerce grants the power to prohibit.
“In assessing the scope of Congress' authority under the Commerce Clause, we stress that the task before us is a modest one. We need not determine whether respondents' activities, taken in the aggregate, substantially affect interstate commerce in fact, but only whether a "rational basis" exists for so concluding. Lopez, 514 U. S., at 557; see also Hodel v. Virginia Surface Mining & Reclamation Assn., Inc., 452 U. S. 264, 276-280 (1981); Perez, 402 U. S., at 155-156; Katzenbach v. McClung, 379 U. S. 294, 299-301 (1964); Heart of Atlanta Motel, Inc. v. United States, 379 U. S. 241, 252-253 (1964). Given the enforcement difficulties that attend distinguishing between marijuana cultivated locally and marijuana grown elsewhere, 21 U. S. C. § 801(5), and concerns about diversion into illicit channels,[33] we have no difficulty concluding that Congress had a rational basis for believing that failure to regulate the intrastate manufacture and possession of marijuana would leave a gaping hole in the CSA. Thus, as in Wickard, when it enacted comprehensive legislation to regulate the interstate market in a fungible commodity, Congress was acting well within its authority to "make all Laws which shall be necessary and proper" to "regulate Commerce ... among the several States." U. S. Const., Art. I, § 8. That the regulation ensnares some purely intrastate activity is of no moment. As we have done many times before, we refuse to excise individual components of that larger scheme. ”
That is it difficult is not a just rational to violate the law this defense would not be accepted for any other defendant and should not be accepted here. In a particular instance the determination be between intrastate and interstate commodity are a question for the jury. That the government should wish to resolve this uncertainty in the abstract is not in keeping with the normal practice of law. Appellants may not challenge laws through the hypothetical consequences that the law may have in other circumstances and the government should not be able to defend its laws on that basis. To do other wise is to hypocritically disparage the rights of citizens.
The author then goes on to limit the precedence of Lopez. Which it should be noted he dissented from joining a dissent which said “The third legal problem created by the Court's holding is that it threatens legal uncertainty in an area of law that, until this case, seemed reasonably well settled. Congress has enacted many statutes (more than 100 sections of the United States Code), including criminal statutes (at least 25 sections), that use the words "affecting commerce" to define their scope, see, e. g., 18 U. S. C. ง 844(i) (destruction of buildings used in activity affecting interstate commerce), and other statutes that contain no jurisdictional language at all, see, e. g., 18 U. S. C. ง 922(o )(1) (possession of machineguns). Do these, or similar, statutes regulate noncommercial activities? If so, would that alter the meaning of "affecting commerce" in a jurisdictional element? ” This I think is all the explame needed to show the author's hostility to the precedence at hand. That he does not over turn it is likely a concession to the necessity of holding the majority rather than any real change of opinion.
“Marijuana was listed as the 10th item in the 3d subcategory. That classification, unlike the discrete prohibition established by the Gun-Free School Zones Act of 1990, was merely one of many "essential part[s] of a larger regulation of economic activity, in which the regulatory scheme could be undercut unless the intrastate activity were regulated."”
Again we see that the view that the government may control the outcome of commerce necessitates powers beyond those actually granted to it. The strong logic that if such a total degree of control was intended the powers to effect it could have easily been granted but since they were explicitly denied such power were not intended.
They author then seeks to limit the similar Morrison precedence which he also joined a dissent from. “The premise that the enumeration of powers implies that other powers are withheld is sound; the conclusion that some particular categories of subject matter are therefore presumptively beyond the reach of the commerce power is, however, a non sequitur. From the fact that Art. I, § 8, cl. 3, grants an authority limited to regulating commerce, it follows only that Congress may claim no authority under that section to address any subject that does not affect commerce. It does not at all follow that an activity affecting commerce nonetheless falls outside the commerce power, depending on the specific character of the activity, or the authority of a State to regulate it along with Congress.” This refutes the dissents author's claim in Lopez that “To hold this statute constitutional is not to "obliterate" the "distinction between what is national and what is local," ante, at 567 (citation omitted; internal quotation marks omitted); nor is it to hold that the Commerce Clause permits the Federal Government to "regulate any activity that it found was related to the economic productivity of individual citizens," to regulate "marriage, divorce, and child custody," or to regulate any and all aspects of education. Ante, at 564.”. These dissents provide absolutely no rational by which the power of the commerce clause could be limited for them to claim that such is not the case is the barest of fig leaves representing only the unwillingness to admit the true effect of the logic they endorse.
“Unlike those at issue in Lopez and Morrison, the activities regulated by the CSA are quintessentially economic. "Economics" refers to "the production, distribution, and consumption of commodities." Webster's Third New International Dictionary 720 (1966). The CSA is a statute that regulates the production, distribution, and consumption of commodities for which there is an established, and lucrative, interstate market. Prohibiting the intrastate possession or manufacture of an article of commerce is a rational (and commonly utilized) means of regulating commerce in that product. ”
Economic is not a strict synonymy with commercial. Commercial requires multiple parities and the purchase or exchange of good. For example saving change is an economic activity but is not commercial. To put forth that the commerce clause allows the regulation of the economy among several States is deceptive and possibly delusional.
“The Court of Appeals was able to conclude otherwise only by isolating a "separate and distinct" class of activities that it held to be beyond the reach of federal power, defined as "the intrastate, non-commercial cultivation, possession and use of marijuana for personal medical purposes on the advice of a physician and in accordance with state law." 352 F. 3d, at 1229. The court characterized this class as "different in kind from drug trafficking." Id., at 1228. The differences between the members of a class so defined and the principal traffickers in Schedule I substances might be sufficient to justify a policy decision exempting the narrower class from the coverage of the CSA. The question, however, is whether Congress' contrary policy judgment, i. e., its decision to include this narrower "class of activities" within the larger regulatory scheme, was constitutionally deficient.”
Here the court ignores the question of if such a class is within the authority of the Federal government when separated from the class of action which might be considered interstate commerce.
“First, the fact that marijuana is used "for personal medical purposes on the advice of a physician" cannot itself serve as a distinguishing factor. Id., at 1229. The CSA designates marijuana as contraband for any purpose; in fact, by characterizing marijuana as a Schedule I drug, Congress expressly found that the drug has no acceptable medical uses.”
Congress is thus given the right to control all medical treatment through the commerce clause in contradiction to the 9th and 10th Amendments.
“Furthermore, the dispensing of new drugs, even when doctors approve their use, must await federal approval. United States v. Rutherford, 442 U. S. 544 (1979). Accordingly, the mere fact that marijuana—like virtually every other controlled substance regulated by the CSA—is used for medicinal purposes cannot possibly serve to distinguish it from the core activities regulated by the CSA.”
The possibility of a right of the people to treat their illnesses as the see fit is not even contemplated in the face for governmental power.
“More fundamentally, if, as the principal dissent contends, the personal cultivation, possession, and use of marijuana for medicinal purposes is beyond the "`outer limits' of Congress' Commerce Clause authority," post, at 42 (opinion of O'CONNOR, J.), it must also be true that such personal use of marijuana (or any other homegrown drug) for recreational purposes is also beyond those "`outer limits,'" whether or not a State elects to authorize or even regulate such use. JUSTICE THOMAS' separate dissent suffers from the same sweeping implications. That is, the dissenters' rationale logically extends to place any federal regulation (including quality, prescription, or quantity controls) of any locally cultivated and possessed controlled substance for any purpose beyond the "`outer limits'" of Congress' Commerce Clause authority. One need not have a degree in economics to understand why a nationwide exemption for the vast quantity of marijuana (or other drugs) locally cultivated for personal use (which presumably would include use by friends, neighbors, and family members) may have a substantial impact on the interstate market for this extraordinarily popular substance.”
Again the plight of the Federal government not being able to effect an outcome it desires because it lacks the means is not a compelling argument for its possession of those means in the absence of Constitutional authority. It may wish to do many things but it must limit itself to only those things which it has been granted the authorization to do. This is much like any endeavor undertake by any party they may wish to have accomplish certain goals but their success depends on their resources and abilities.
“Second, limiting the activity to marijuana possession and cultivation "in accordance with state law" cannot serve to place respondents' activities beyond congressional reach. The Supremacy Clause unambiguously provides that if there is any conflict between federal and state law, federal law shall prevail.”
“This Constitution, Laws of the United States which shall be made in Pursuance thereof” this clause only applies to laws that do not exceed the authority of the constitution. That there should be any question about the extent of that authority a stricter examination of justification for the law in question must be undertook if there is conflict with State law than if there is no such conflict.
“It is beyond peradventure that federal power over commerce is "`superior to that of the States to provide for the welfare or necessities of their inhabitants,'" however legitimate or dire those necessities may be. Wirtz, 392 U. S., at 196 (quoting Sanitary Dist. of Chicago v. United States, 266 U. S. 405, 426 (1925)). See also 392 U. S., at 195-196; Wickard, 317 U. S., at 124 ("`[N]o form of state activity can constitutionally thwart the regulatory power granted by the commerce clause to Congress'"). Just as state acquiescence to federal regulation cannot expand the bounds of the Commerce Clause, see, e. g., Morrison, 529 U. S., at 661-662 (BREYER, J., dissenting) (noting that 38 States requested federal intervention), so too state action cannot circumscribe Congress' plenary commerce power. See United States v. Darby, 312 U. S. 100, 114 (1941) ("That power can neither be enlarged nor diminished by the exercise or non-exercise of state power") ”
Look how at how Federal rights are considered inviolate regardless of the circumstances or harm while Civil rights must at every turn yield to “reasonable” or “necessary” limitations. Here is were we see the gloss of compromise come out in the wash. In response to the Sanitary Dist. of Chicago v. United States I would like to say that the Federal government may pass a law directing the flow or course of a river but that does not provide them with the means to control nature to the degree necessary to ensure that it complies with the law. Similarly it powers should not limit the powers of the States even when the exercise of those power might produces results contrary to the wishes of the Federal government. The Darby quote is interesting as that court decision cites Ky. Whip & Collar Co. v. ICR CO. where the law at question depends on State laws.
“Indeed, that the California exemptions will have a significant impact on both the supply and demand sides of the market for marijuana is not just "plausible" as the principal dissent concedes, post, at 56 (opinion of O'CONNOR, J.), it is readily apparent. The exemption for physicians provides them with an economic incentive to grant their patients permission to use the drug. In contrast to most prescriptions for legal drugs, which limit the dosage and duration of the usage, under California law the doctor's permission to recommend marijuana use is open-ended. The authority to grant permission whenever the doctor determines that a patient is afflicted with "any other illness for which marijuana provides relief," Cal. Health & Safety Code Ann. § 11362.5(b)(1)(A) (West Supp. 2005), is broad enough to allow even the most scrupulous doctor to conclude that some recreational uses would be therapeutic. ”
That doctors and patients should have medical discretion in their treatment of illnesses is presented here as a horror necessitate government regulation as are the basic forces of demand and the potential for some criminal activity. How any of these would be improved by legislation is not addressed nor can it be.
“The exemption for cultivation by patients and caregivers can only increase the supply of marijuana in the California market.[41] The likelihood that all such production will promptly terminate when patients recover or will precisely match the patients' medical needs during their convalescence seems remote; whereas the danger that excesses will satisfy some of the admittedly enormous demand for recreational use seems obvious. ”
California is a State its internal market is its own concern. To claim criminal behavior in the absence of evidence is slanderous. Most people in this abide by laws that are injurious to them to state they would be unable to refrain from criminal actively because of the potential for gain shows a contempt for them and a misappraisal of reality.
“Moreover, that the national and international narcotics trade has thrived in the face of vigorous criminal enforcement efforts suggests that no small number of unscrupulous people will make use of the California exemptions to serve their commercial ends whenever it is feasible to do so.”
The criminal actions of others are not an acceptable basis for restricting the rights or freedoms of individuals.
“Taking into account the fact that California is only one of at least nine States to have authorized the medical use of marijuana, a fact JUSTICE O'CONNOR's dissent conveniently disregards in arguing that the demonstrated effect on commerce while admittedly "plausible" is ultimately "unsubstantiated," post, at 56, 55, Congress could have rationally concluded that the aggregate impact on the national market of all the transactions exempted from federal supervision is unquestionably substantial.”
It is bizarre to talk of the effects on an illegal market as plausible concerns for Federal regulation. How can the government seek to enact prohibition and then act with the same justification as if it was trying to support the price of corn. Why should the price or other market features have any relevance to the governments “regulation” of a black market?
“So, from the "separate and distinct" class of activities identified by the Court of Appeals (and adopted by the dissenters), we are left with "the intrastate, noncommercial cultivation, possession and use of marijuana." 352 F. 3d, at 1229. Thus the case for the exemption comes down to the claim that a locally cultivated product that is used domestically rather than sold on the open market is not subject to federal regulation. Given the findings in the CSA and the undisputed magnitude of the commercial market for marijuana, our decisions in Wickard v. Filburn and the later cases endorsing its reasoning foreclose that claim.”
A wrong long standing becomes justice.
In closing let me address one point from Justice Scalia's concurance.
“It is misleading because, unlike the channels, instrumentalities, and agents of interstate commerce, activities that substantially affect interstate commerce are not themselves part of interstate commerce, and thus the power to regulate them cannot come from the Commerce Clause alone. Rather, as this Court has acknowledged since at least United States v. Coombs, 12 Pet. 72 (1838), Congress's regulatory authority over intrastate activities that are not themselves part of interstate commerce (including activities that have a substantial effect on interstate commerce) derives from the Necessary and Proper Clause. Id., at 78; Katzenbach v. McClung, 379 U. S. 294, 301-302 (1964); United States v. Wrightwood Dairy Co., 315 U. S. 110, 119 (1942); Shreveport Rate Cases, 234 U. S. 342, 353 (1914); United States v. E. C. Knight Co., 156 U. S. 1, 39-40 (1895) (Harlan, J., dissenting).[1]”
Necessary and Proper does not refer to those powers needed to achieve legitimate legislative goals but to those powers needed to enact legitimate pieces of legislation. Thus powers by which the government can directly assert control over interstate commerce are acceptable but those powers which assert indirect control over interstate commerce by controlling those factors which influence it are not. For example it could create an agency to collect taxes or conduct inspects as required by law for interstate goods. But excreting police power over the possession or use of goods by private citizens is not necessary and proper to the regulation on commerce among several states. Those things are not interstate commerce and thus stand outside the area of regulation granted to Congress that it should want to regulate them because direct enforcement or regulation might be hard or might fail to achieve its objective is not enough to make such powers necessary or proper. This is especially true when the objective such as in this case of preventing drug use is outside the scope of powers granted to Congress. Congress neither has a goal relating to commerce nor uses means relating to commerce thus it is absurd that such action be justified on that basis.
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