noticed something troubling in raich oral arguments

[beerslurpy]

I was thinking that surely raich would be decided in our favor (states rights), then I noticed that scalia was taking a decidedly pro-wickard stance, which is very uncharacteristic for him. Does anyone else think that the normally federalist supremes will let their conservative social opinions interfere with their better legal judgement? Although I can see Kennedy siding with the potheads for social reasons, I cant see a pro-federalist decision coming out of this if Scalia and Rhenquist go against us.

Why care about a pothead case? Because US v Stewart was delayed so that it could be decided after Raich. If Raich is decided in the governments favor, we 99 percent surely lose Stewart as well.

If scalia and rhenquist go the federalist route, Thomas is obviously going to go federalist no matter what (god I love him) and OConnor will probably side against Ashcroft as well. Which means a high likelyhood of one of the remaining 5 justices concurring for some other reason. Which THEN means very good news for Stewart. On the other hand, even if only Scalia goes the wrong way we stand a huge chance of Wickard v Filburn being forgotten as the biggest federal power grab because it will be dwarfed by the travesty of Ashcroft v Raich. In other words, bend over.

 

[Brett Bellmore]

Given what I've read of Scalia's writings, it wouldn't particularly suprise me if he voted against federalism in this case. He's not nearly a principled as Thomas. But you should understand that sometimes the Justices ask tough questions to help the lawyers before them sharpen their arguments, not just because they're hostile.

I think it could go either way, but if it goes against Raich, federalism is dead.

 

[beerslurpy]

It has occurred to me in rereading it that they might be trying to put themselves in a corner where the only way out is to overturn Wickard.

A lot of the harmless sounding questions to Clement seemed to suggest that they beleived that CSA didnt pass muster via Lopez and Morrison, and the only leg the govt had to stand on was Wickard, even though it suggested some very unconstitutional conclusions to follow logically from that.

They also seemed to be fairly rough on Barnett, but by the end it seemed like they were trying to trap him up against Wickard and make him realize that the only way out was through.

Either they intend to uphold CSA on Wickard (essentially overturning Lopez and Morrison which they seemed to think highly of, being their decision and all) or they intend to overturn Wickard or at least weaken it to be in line with Lopez and Morrison. It might be soemthing like removing hypothetical influences on commerce from the commerce clause.

Effects of this partial overturn of Wickard:
This would keep most of the existing gun control in place (since the 68 GCA was on its face, aimed at controlling interstate and international dealing in small arms) but it might make it easy to overturn 922(o) since that is federal criminalization of posession simpliciter, which the justices seem to be acquiring a dislike to. The NFA seen as an exercise in taxation might work (kind of like an interstate sales tax for transfers), but the NFA as a regulatory and posession law might fall apart because of this.

 

[publius]

Does anyone else think that the normally federalist supremes will let their conservative social opinions interfere with their better legal judgement?

Yes, I think that will probably happen.

I come to places like this one and see how little interest in federalism really exists among conservatives when Raich comes up, and that tells me what will happen. My observation is that drug warriors tend to go away when the subject of Raich/Stewart comes up. A few will drop by to say they believe in federalism, even if it means Raich wins, but most just vanish.

They don't want to admit that they believe in Wickard. But what they want even less is to stop believing in Wickard when it comes to Raich, so they just go away.

The Supremes don't have the option to just go away at this point, so they'll come out with a Wickard-based decision which reflects the general will of the population of people from which they were drawn. Most seem to like the status quo. A few of us would like to use these cases to overturn Wickard and reduce the federal government's influence, but we will lose.

It's OK. The status quo is not bad, compared to most any humans who have ever lived.

 

[patentnonsense]

Nice thread! Don't underestimate Scalia's principles - look at the methodology in Crawford v. Washington if you want to see a stunning example of him bringing real Constitutional law back into the Supreme Court. (Consider what would happen if that methodology were applied to US v. Stewart!)

And BTW there's an entertaining lawyer's blog at http://sheridan_conlaw.typepad.com/sheridan_conlaw/circle_of_confusion_wickard_raich/ which reviews this line.

 

[publius]

I know lawyers don't like to hear this, but SCOTUS decisions are often not based on some objective, discernable, and unchanging legal principles. They're based on what the people want.

Today, if someone is facing federal charges for, say, marijuana cultivation, and his lawyer brings up a commerce clause based objection, the judge will simply dismiss it, cite Wickard, and probably threaten contempt if they bring up a frivolous and long-decided argument again.

If Raich wins, that same person's lawyer brings up the same objection, and what happens?

 

[Daedalus]

I think it could go either way, but if it goes against Raich, federalism is dead.

I think Federalism has been in a "Persistent Vegitative State" for quite some time now.

 

[Langenator]

The Court, as currently composed, has an oftentimes annoying and, to me, disturbing, deference for precedent. They simply don't like to issue decisions that would overturn previous SCOTUS decisions, no matter who wrote them. I swear, this bunch (or at least 5 of them) would uphold Dred Scott if it were still standing caselaw.

 

[Graystar]

I'll put my money on a finding of no standing.

 

[publius]

I'll put my money on a finding of no standing.

I'll keep mine hidden in jars in the back yard where it belongs, but I'm interested in the basis of your wager?

 

[Graystar]

I'll keep mine hidden in jars in the back yard where it belongs

So where to you live? (he asks as puts fresh batteries in the metal detector )

I'm interested in the basis of your wager?

I think Judge Beam's dissent holds some water. The CSA may be unconstitutional, but you still have to have standing to raise the issue. The Court tossed the pledge case on lack of standing, so it's not an unreasonable possibility.

 

[publius]

Being prosecuted under a law does not give standing to challenge the law?

 

[Graystar]

Being prosecuted under a law does not give standing to challenge the law?

You gotta read the case...

Fearing raids in the future and the prospect of being deprived of medicinal marijuana, the appellants sued the United States Attorney General John Ashcroft and the Administrator of the DEA Asa Hutchison on October 9, 2002.
Raich v. Ashcroft, 352 F.3d 1222 (9th Cir. 2003)

There is no mention of prosecutions either underway or threatened.

Also remember that the Circuit Court was ruling on whether the preliminary injunction should have been denied. That’s the decision that is being appealed. A win in the Supreme Court simply means that the injunction is lifted.

 

[publius]

There is no mention of prosecutions either underway or threatened.

But what about Monson, and John Does 1 and 2? Aren't they coplaintiffs? That's what this article says:

http://www.washingtonpost.com/wp-dyn/articles/A18420-2004Nov28.html?nav=mb

They did have property seized and destroyed. I know that you don't have to be prosecuted or convicted to have your property seized in the drug war, but it still seems to me that if they had legal action taken against them under this law, and they are coplaintiffs, that adds up to standing.

Of course, I have some funny ideas, such as the notion that growing a plant is not interstate commerce, so I could be wrong.

 

[Graystar]

But what about Monson, and John Does 1 and 2? Aren't they coplaintiffs?

Yes, they’re plaintiffs but no one was prosecuted. Their action was a pre-emptive strike against prosecution. But frankly, if the DEA catches you red-handed (by their standard, of course) and they don’t prosecute you, I’d think you’d have an extraordinarily difficult time convincing the Supreme Court that you’re under imminent threat of prosecution. In fact, a reasonable person could conclude that you’re under no threat of prosecution at all. I mean, really now, you’re caught! The DEA is there at your place and they have you and the evidence in hand! And what do they do? Take the evidence and leave you behind! And two years later you're still out on the street!

Threat of prosecution? Are you kidding me??

Of course, I have some funny ideas, such as the notion that growing a plant is not interstate commerce

Where in the world do you come up with such crazy notions...

 

[publius]

Threat of prosecution? Are you kidding me??

Well, it did happen to Ed Rosenthal. They weren't real nice to Peter McWilliams, either.

And even without the threat of being tossed in the clink, couldn't you derive standing from the perfectly reasonable fear on the parts of Monson and Does 1 & 2 that they would once again have their property seized and destroyed under this law? They were damaged by this law. They had every reason to believe they would be again.

 

[Graystar]

And even without the threat of being tossed in the clink, couldn't you derive standing from the perfectly reasonable fear on the parts of Monson and Does 1 & 2 that they would once again have their property seized and destroyed under this law?

Well, maybe if they had stated that in the original complaint, they might. But the only threat they claim is of being “victimized,†and that doesn’t mean anything. It’s not the court’s job to decipher such terms. If you’re afraid of prosecution then that’s what you state. If you’re afraid of seizure then that’s what you state. But claiming that you’re afraid of being “victimizedâ€...well, I think that will ultimately get you tossed out.

Ed Rosenthal has standing. These guys don’t (well, that’s my layman’s conclusion anyways.)

 

[publius]

I frankly doubt they'll make as much sense as you do.

 

[Graystar]

I frankly doubt they'll make as much sense as you do.

It's the cannabis. They really should lay off of that stuff!