(Clarence Thomas) wrote a scathing dissent to the opinion overturning California's attempt to legaize homegrown pot. The majority argument claimed that they could overturn because the federal government had primacy over interstate commerce. Thomas pointed out that somebody growing something in their backyard for their own use was not interstate commerce.
Not too many attorneys think it was a "scathing dissent," and it simply reiterated his long-time stance that only the actual buying-selling of commodities should qualify as interstate commerce that can be regulated by Congress. Such a view was discarded in Gibbons in the early 1800s. For those who want to perform more research, the case to which JeffT is referring is Gonzalez v. Raich (2005). http://www.law.cornell.edu/supct/html/03-1454.ZS.html I'm also including a blurb from my Con Law outline regarding the case.
a. Raich (2005): INTRAstate, non-commercial cultivation/possession of pot (commodity) for personal use. Was legal under CA law. Controlled Substance Act ruled constitutional. Back to aggregation--Wickard.
i. “Economics” = production, distribution, consumption; doesn’t have to be goods that travelled in stream/commerce.
ii. Non-economic activity, that in the aggregate (personal pot usage) substantially affects IC, can be called “economic.” (Even Scalia agrees) “Congress can regulate purely local activities that have a substantial effect on IC.” Broadened Lopez’ definition of economic.
iii. Even if say non-economic, is part of a broader regulatory scheme that regulates clearly economic drug activity. If exempted personal pot use, the whole regulatory CSA scheme would be undermined.
1. O’Connor’s Dissent: This creates a perverse incentive for Congress to legislate broadly.
iv. Since “economic” Court need only find rational basis substantially affects IC.
v. If exempted personal pot use, the whole regulatory CSA scheme would be undermined.
vi. Open question re: Raich:
1. Will Raich methodology be limited to situations where Congress has enacted a comprehensive scheme of federal control or will it be applied in all CC cases? Needed an effective, national scheme, but no such response needed in Lopez/Morrison.
2. Where is the law now?
a. All Justices agree that Congress can regulate intrastate economic activities if those activities, in the aggregate, substantially affect interstate commerce.
b. They disagree over how the Court is to decide what is substantial if the activity is not commercial in nature.
c. Thomas: thinks buying, selling, shipping.