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Chief Justice Roberts, Rapanos, Oregon, and judicial "modesty":

I agree with most of Orin's observations on Chief Justice Roberts' adherence to his credo of "judicial modesty" in Rapanos v. United States and Gonzales v. Oregon. Here are a couple more points that seem to have been ignored in the David Savage LA Times article Orin criticizes:

First, as I document in some detail here, the plurality opinion that Roberts joined in Rapanos and the dissent he signed on to in Oregon both strongly reaffirm Congress' power to do almost anything it wants within the relevant policy areas (water regulation and assisted suicide). That hardly strikes me as an aggressive assertion of judicial power.

Second, in Oregon, five of the six justices in the majority that held that the Controlled Substances Act did not permit the federal government to regulate the use of drugs to facilitate assistend suicide were also in the majority that had emphasized the "broad" and "comprehensive" nature of the CSA just a few months earlier in Gonzales v. Raich, where they also asserted the right of Congress to override "traditional" state prerogatives. This contradiction between Raich and Oregon was rightly emphasized by the dissenters in the latter case and virtually ignored by the Oregon majority. Despite this fact, I still think, as does Orin, that the Oregon dissenters voted the wrong way. But it is hard to describe their stance as "tak[ing] away the state's traditional power to regulate the practice of medicine," as Savage does. That bridge had been crossed in Raich, where most of the very same justices who made up the majority in Oregon voted to allow the federal government to override California's medical marijuana law. The latter had allowed doctors to prescribe the use of marijuana for medical purposes in much the same way as Oregon's Death With Dignity Act allowed them to prescribe the use of drugs to facilitate assisted suicide for the terminally ill.

Finally, Savage ignores Roberts' solo concurring opinion in Rapanos, which suggests that the Army Corps of Engineers could easily have obtained far broader regulatory authority under the Clean Water Act than the plurality opinion he signed onto would otherwise permit, simply by issuing new regulations that conformed to the Court's earlier interpretation of the CWA in SWANCC v. U.S. Army Corps of Engineers. Such regulations would, according to Roberts, have been entitled to "generous" judicial deference and could have given the Corps "plenty of room to operate." In sum, Roberts position in Rapanos was that the Corps has very broad discretion under the CWA's grant of power to regulate discharges into "navigable waters," but not the power to assert what he rightly called virtually "boundless" regulatory authority. The Corps had claimed the right to regulate virtually any body of water, no matter how small, remote, or nonnavigable, and had persisted in this stance in the face of an adverse Supreme Court decision. No broad assertions of judicial power here.

Overall, I think that Roberts voted the wrong way in Oregon, and I think that there are also flaws in his stance on Rapanos (though I believe that he got the bottom line more or less correct). But his positions were hardly contrary to "judicial modesty." Indeed, in my view, a stronger criticism of Roberts' performance is that he was too deferential to assertions of federal authority in both cases, particularly Oregon.

PatHMV (mail) (www):
I don't think Raich and Oregon are as contradictory as you suggest. In Raich, the Court found that Congress could forbid even the medical use of marijuana because interstate traffic of marijuana could not be effectively halted without criminalizing its cultivation and possession elsewhere. Congress was not regulating how a drug was used, but whether that drug could exist at all.

By contrast, in Oregon Congress there was no way to claim that Congress was trying to control the interstate traffic of the narcotics at issue; morphine and the other drugs can enter into commerce for at least some purposes. The anti-suicide regulation was aimed solely at the use to which the drug was being put, after it had been in interstate commerce. Both cases were rightly decided.
9.25.2006 3:32am
Ilya Somin:
By contrast, in Oregon Congress there was no way to claim that Congress was trying to control the interstate traffic of the narcotics at issue; morphine and the other drugs can enter into commerce for at least some purposes. The anti-suicide regulation was aimed solely at the use to which the drug was being put, after it had been in interstate commerce. Both cases were rightly decided.

It is almost certain that the prescription of drugs by doctors (often as part of a commercial relationship) has at least as much connection to interstate commerce as the completely noncommercial use of homegrown drugs in Raich. The (often commercial) prescription of drugs that the feds tried to regulate in Oregon probably has greater connection to interstate commerce than mere possession of medical marijuana (as in Raich). The Raich decision did not distinguish between "possession" and "use" but clearly held that Congress could regulate anything that had even a remote connection to interstate commerce or that Congress could "rationally" believe had such a connection.

Moreover, Oregon did not in fact reopen the constitutional issues addressed by Raich, but merely the statutory interpretation issues. And as a matter of statutory interpretation, Raich repeatedly interpreted the CSA as a "broad" and "comprehensive" regulatory scheme covering all use of drugs.
9.25.2006 4:27am
PatHMV (mail) (www):
But the core argument in Raich, to my mind, was that Congress was seeking to eradicate marijuana, period, to prohibit all commerce among the states of that product. The Raich court determined that Congress had the power to do that, and thus the prohibition of even the medical use of marijuana, even in small amounts and with no money changing hands, was necessary and proper to accomplish that legitimate goal.

In Raich, the prohibition was aimed at marijuana itself, not the particular use any given doctor chose to put it to. The CSA is mostly directed at preventing drugs from reentering commerce in an inappropriate manner. The doctor can prescribe morphine, but there are certain limits to doing so, in order to restrict the likely subsequent commerce among the states which would ensue were it handed out like candy. The restrictions are, ultimately, directed at prohibiting the interstate commerce of the drugs outside of the regulatory scheme.

But in Orgeon, the drugs were not, could not reenter the stream of commerce after their single use. The Ashcroft interpretation of the CSA was thus not aimed at restricting any later potential commerce among the states; it was aimed and had no purpose other than controlling the medical decisions of the doctors, unlike Raich.
9.25.2006 9:27am
William Spieler (mail) (www):
I thought Oregon was more about an admin law question (was there a proper delegation of power from Congress?) rather than a Constitutional question.
9.25.2006 1:15pm
Justin (mail):
William - you would be correct. The majority found that Congress did not authorize the government to use the CSA in the prescribed manner, and did not answer the question of whether Congress "could" use said power. The dissent quickly disagreed and spent the majority of its space discussing why the federal government could have that power. Though the dissent and Somin finds the liberal judges hypocrites (as if somehow, policy-preference-wise, liberals are anti-medical-marijuana, an absurd concept), I don't see any contradiction at all.

I was shocked by both decisions, in that I assumed Raich would be 8-1 (Thomas) and Oregon would be 9-0 in favor of the way it came out. I think the results, from a practical standpoint, were both obvious, and completely consistent.
9.25.2006 1:27pm
Roger Schlafly (www):
The Oregon case was just about the interpretation of the phrase "legitimate medical purpose" in the federal statute. That's all.
9.25.2006 1:54pm
jhchand (mail):
Based on my reading of both cases, and my case note on Oregon for law review, it seems as if they are at least somewhat reconcilable. First, Raich was premised on the Attorney General's power under the CSA to "prevent diversion." Clearly, a colorable argument can be made that allowing home-grown consumption of medical marijuana could, at least, in theory, lead to diversion in the interstate market. Further, since Congress can clearly prohibit all items in interstate commerce and wholly intrastate commerce (the Lottery Case), the case was an as-applied challenge to the CSA.

In Oregon, I think that the majority's views on the Attorney General's powers to "register and deregister" physicians if "inconsistent with the public interest" were obviously correct taken in light with the other provisions of the CSA.

While both cases deal with the CSA and the AG's powers thereunder, I think that most constitutional scholars will at least consider Justice Thomas' dissent in Oregon as raising important points about federalism, Article I powers, and statutory interpretation.
9.25.2006 2:47pm
whit:
Raich, imo was an abomination. It was the first time I strongly disagreed with Scalia, who in the past HAS supported states' rights.

It's pretty clear that if an MD in california issues a script for MJ, and a person then grows it in his backyard, that there is no way that falls under "interstate commerce".

The argument that congress' desire to "eradicate mj" somehow justifies intruding in state authority is absurd. Yes, it might make eradication more difficult. So what? Just because it is congress' GOAL to eradicate mj, does not justify violating states' rights and purely INTERNAL state matters to do so (not that they ever have, or ever will eradicate mj. the idea is absurd).

Congress absolutely has authority to ban interstate sale or transport of mj and it's crossing our international borders. Whether or not they want to eradicate mj, the idea that legal mj in california might make it more difficult for them seems to me to be irrelevant. It seems a "judicially activist" extension of the interstate commerce clause, and I would have expected better from scalia.

disclosure: i don't smoke mj, and i have no desire to. i think it's lame. but i think violating state authority by the federal govt is far more lame.
9.25.2006 3:30pm
Ilya Somin:
Under Raich, Congress' purpose is irrelevant. All that matters is whether or not the regulated activity has even a remote connection to interstate commerce. Therefore, the fact that Congress sought to "eradicate" the interstate trade in marijuana had no significant impact on the outcome.

It is true, as I mentioned earlier, that Oregon did not directly address the constitutional issues dealt with by Raich. But it did involve interpretation of the CSA, which Raich had repeatedly stated was a broad and "comprehensive" statute covering all use and possession of drugs. This latter aspect of Raich seems to be contradicted by the result in Oregon.
9.25.2006 3:56pm
Greedy Clerk (mail):
There is no tension between Raich and Oregon. Oregon did not address whether Congress had the power to prohibit doctors from prescribing medicine for suicide. Rather, the Court decided (correctly) that Congress had not exercised that power (if it had it), and that Ashcroft had overstepped his bounds by issuing a regulation under the CSA which essentially eradicated Oregon's law. Although there may be tension at a superficial level, a law professor should recognize that the difference between the questions addressed by the two cases is a key, very important difference. I have little doubt that the majority in Raich would have voted to uphold a law actually passed by Congress that would outlaw the use of controlled substances by doctors for assisted suicide. For better or for worse, there was a direct conflict between the laws of California and the laws of the United States in Raich. Thus, the only question was whether the federal law was being constitutionally applied in Raich. I think it was -- though as a policy matter (and as a citizen of California), I object strongly to the law being applied in this manner.

The Oregon dissenters' views were in direct tension with Rehnquist's statements in Glucksberg that assisted suicide was a matter for the democratic process in the states. That democratic process was exercised in a way that the Oregon dissenters did not like, so they voted to ratify an ultra vires exercise of power by the Attorney General (who as a Senator tried, but failed, to outlaw assisted suicide at the federal level). In fairness to Roberts, he was not on the Court when Glucksberg was decided. Justice Scalia, however, in Oregon showed his true colors and his true lack of respect for the democratic process.
9.25.2006 4:33pm
Greedy Clerk (mail):
I was shocked by both decisions, in that I assumed Raich would be 8-1 (Thomas) and Oregon would be 9-0 in favor of the way it came out. I think the results, from a practical standpoint, were both obvious, and completely consistent.

I agree completely, and would have made the same predictions at the time. Both cases were correctly decided. The real "inconsistency" is between the views of Scalia &Kennedy in Raich and their views in Morrison. Although there are plausible arguments to be made to distinguish Morrison and Raich, I find them very unconvincing: at bottom, it is reasonable to assume that Scalia and Kennedy agreed as a policy matter with the exercise of Congressional power in Raich, but did not in Morrison, and that explains their votes. Compare the views of Stevens, Souter, Ginsburg and Breyer in Raich and Morrison and you will see a lot of consistency. It is furthermore very clear from reading the trasncript of oral argument in Raich and the opinions that at least some of these four "liberal" Justices disagreed strongly with the federal government's actions in Raich, but voted to uphold them nevertheless as they were unfortunately obliged to do so under the Constitution and a proper reading of the Commerce Clause.
9.25.2006 4:42pm
In the Hat:
Silly me, I always assumed that Oregon came out the way that it did because many of the Justices are on death's door and have seen colleagues trying to die with some dignity intact. After Raich I assumed that Oregon would be a one-line per curiam or the effective equivalent.
9.25.2006 4:46pm
Greedy Clerk (mail):
By the way, I should note that I agree with the general point made by both Orin and Ilya that David Savage's article was unfarily critical of Roberts. This, however, is typical of reporting on the Supreme Court in the MSM; to keep the story interesting to readers not familiar with the nuances of legal doctrine, they have to insert some "controversial" assertion. We saw the same thing, from the other side, in the LA Times when they criticized Justice Ginsburg in a front-page article for speaking at women's rights groups.
9.25.2006 4:47pm
logicnazi (mail) (www):
The problem with the Raich deciscion is that it didn't look at congress's intent.

Raich required a significant interstate nexus or for the provision to be necessery to achieve some comprehensive legislative goal. This seems fine and reasonable if the goal of the comprehensive legislation is really within the federal domain. If it is necessery to ban a certain sort of container to prevent smuggling things across state lines it seems reasonable to conclude this is within federal power.

However, the problem in Raich was that it didn't require the aim of the comprehensive legislation to be within the domain of federal power. For instance congress might want to prevent all cucumbers from being used in sexual acts (or prevent cucumbers whiched crossed state lines from being used in sexual acts) and under Raich if the government engages in some comprehensive system of legislation to prevent cucumbers from being used in sexual acts they then become free to directly outlaw the use of cucumbers in sexual acts (forget about privacy rights for the moment).

The key point that Raich missed is that congress's motivation in passing it's comprehensive system of legislation can't be to ban an entierly intrastate activity. In otherwords congress doesn't get to bootstrap itself up to banning some intrastate activity by first passing laws governing interstate activity to make it more difficult to engage in the supposed intrastate activity (say requiring all cucumbers passing between states to be treated with a chemical which causes allergic reactions if used sexually) and then using this as the comprehensive regulation to justify outright banning of the activity.

Of course Gonzales, being an entierly statutory deciscion, is mostly not related.

However, if it was to be decided on federalism grounds I do think you could seperate it from Raich. Unlike in Raich there is no chance that allowing assisted suicide would substantially increase interstate smuggling in illicit drugs.
9.25.2006 4:53pm
Justin (mail):
"It is true, as I mentioned earlier, that Oregon did not directly address the constitutional issues dealt with by Raich. But it did involve interpretation of the CSA, which Raich had repeatedly stated was a broad and "comprehensive" statute covering all use and possession of drugs. This latter aspect of Raich seems to be contradicted by the result in Oregon."

I really respect your blogging, probably second to Kerr here. But this seems to be a complete cop-out. Whether CSA was "comprehensive" (particularly in regards to marijuana, a no-exceptions criminal drugs) has nothing to do with the question in Oregon, which was whether Congress intended to CEDE TO THE ATTORNEY GENERAL the power to use the CSA for a specific, unintended purpose. One was a classic Commerce Clause question, another was a classic Chevron question, and I do not think taking dicta out of context and then stretching its meaning even further to imply a contradiction does you any good in rebuttal.
9.25.2006 5:46pm
Justin (mail):
Logicnazi,

That wasn't the question that cert was granted on. Either you're blaming the Supreme Court for failing to take cert on the right question, or you're blaming Barnett for failing to apply for cert on the right question. But neither has no relevancy on the propriety of the logic of Raich.

While the Supreme Court occasionally wanders into an area beyond its cert mandate, it really shouldn't do that, because it fails to get sufficient input relative to the importance of its output, imho.
9.25.2006 5:49pm
Bryan DB:
Mr. Somin,
I think the consistency is that Congress can regulate the drug in interstate commerce by making its possession legal (OR drugs) or illegal (CA drugs). However, once the possession of the drug is legal, it is no longer Congress' province to dictate how the drug is used (medical practice).
9.25.2006 7:01pm
whit:
The idea that Raich correctly decided the commerce clause decision is absurd. It stretches the definition of interstate commerce to a ridiculous extreme. It's pretty clear what interstate commerce means, and it does not mean something that happens entirely within a state's borders.

There is no way that is interstate commerce.

Most every argument that says that internal legalization of MJ somehow can be regulated as interstate commerce sounds suspiciously like the "living constitution" and so called judicial activism that scalia so detests.

It is not interstate commerce. Heck, growing your own mj for medical use is not even commerce at all, let alone interstate commerce.

Commerce is an interchange of goods. Where is the "interchange", when a patient grows their own marijuana?

And the idea that marijuana grown for medicinal purposes MIGHT make its way into interstate commerce somehow makes the original act therefore related to interstate commerce is the sort of twisted logic that fails the basic smell test.

I kinda like logicnazis points.
9.26.2006 4:07am
Americano:

It's pretty clear what interstate commerce means, and it does not mean something that happens entirely within a state's borders.

There is no way that is interstate commerce.


I seem to recall a case about growing grain for purely personal consumption was also determined to be interstate commerce.

It seems to me (and I believe I should get paid to argue these things) that congress can regulate suicide (and everything dealing with it) under it's power to raise armies and the like. Seems a plausible argument could be made that we gotta keep the suicidal around in case we need them for especially hairy army missions.

Other than that reason, I can't see how congress has a say if someone wants to kill himself.
9.26.2006 4:31am
whit:
"I seem to recall a case about growing grain for purely personal consumption was also determined to be interstate commerce."

It would not surprise me if some moronic, activist power hungry judge(s) made such a ruling. I'm just saying that there aren't many "penumbras" :l surrounding the word commerce, nor the word interstate. It's pretty clear what they mean. But bad decisions do kind of have a cascading effect. And the interstate commerce clause has been the tool by which a LOT of bad law (that violates state rights) has been upheld.
9.26.2006 2:03pm