commerce and Roberts

Sometimes I forget OR is largely intended to replace email as a space to have civic discussion. The following is an exchange from this yesterday and this morning. Yesterday, Mike and I were talking about the Oregon assisted suicide case, and whether Congress has power to prevent Oregon from acting under its law allowing this. Congress evoked the commerce clause as it's power source. In lieu of doing the whole thing over again, here are the emails:

Mike Writes:
Also Mr. Owens, wont it be interesting to watch Roberts and how he decides on the current Oregon case? It would seem [probably to many conservatives' horror] that to be consistent with his professed philosophy he would rule in favor of Oregon and against the administration. I myself am against the Oregon Law, but it seems to me Roberts would need to favor Oregon's states rights here as I would too, despite my position on the subject of the law itself. [Of course I would also say this same reasoning should void Roe]. Anyway, your thoughts? Mike

Andrew:
Is Roberts a big 10th amend guy? No way to really know. I think Rehnquist, o'connor and Thomas dissented in the cali marijuana case...all the others found commerce power the congressional law allowing for federal prosecution. This one’s under federal drug enforcement, so presumably under commerce powers as well? the cali case should tell us how all will rule, as I see little difference. I mean, sure- one is pot and this is about pills that kill you. But the question is fed gov's power to control such things.

I don't know if Roberts is a Thomas-style strict reader, a Rehnquist style federalist, or what. Will be interesting to see for sure.

Mike:
I had kinda got the notion he is a "Rhenquist style Federalist", but I guess it really was Bush saying that as opposed to Roberts.....to me its crazy if they base this on "Commerce", but I know that is a real possibility [liklihood?] as youve pointed out.......anyway, R's ruling will perhaps give indications of where he'll be going in the future. Cheers, Mike


Mike:
So Andrew, are you fine with the Court's allowing the federal govt to legislate re drug use/rules in national policies for the states? You didnt include anything critical in your mentioning the California case [Calif?]...Im just curious! Cheers man, Mike

Andrew:
Well- this is something where my con law thinking is still forming. Commerce clause stuff is difficult for me: I agree, generally, with the push back from 1960/70s commerce jurisprudence that allowed for broad scope fed power with the slightest tangential relation to interstate commerce. Mainly, though, I agree with the pushback via my appreciation of local governing, more so than an over-riding vision of the Constitution forbidding an interpretation allowing such power. To wit, philosophically, I think I agree that most anything can touch on interstate commerce, and the fed gov could regulate...I just don’t think they should.

Pragmatically, it makes little difference in my mind, because the structure of our two tiered gov (state/fed) has gotten states so dependant on federal money that congress can do most anything through the spending clause anyway now. Take Lopez: this is the case on the guns free school act- passed under commerce clause powers. Court said guns near schools does NOT relate enough to interstate commerce- so Lopez was one of the few cases in the 90s that pushed back against broad commerce powers. However, fed gov could probably pass something along the same lines under spending power- where they attach gun control as a string to fed money to state schools. This is what they're going to do with the eminent domain law, it's what they used to get the drinking age at 21, on and on...

So in a world of state dependency, it is difficult to get away from fed sway. 2 solutions:

1) feds need to appreciate the value of local gov

Or

2) states need to jack up taxes, refuse fed money, and go on their own. But, there would have to be some kind of trade off...you can't jack up prices without fed giving your state a break on taxes…but that is a long shot.
I talked with my housemate about all this recently. I got to where I was thinking each state should get higher taxes and break from federal sway. But he has a good counter: we are a country now that subsidizes the poorer, smaller states. He said- what happens to a south Dakota, or north Dakota if option 2 is taken? You think they have the chance to reap in a bunch off tax revenue from their scant populations? No way. Basically, fed taxes subsidize these people. He convinced me: if we do #2, we'll have mini third world country like states. And so, now, the communitarian (big scale) side of me appreciates the idea that I give up some things I want in order to help my fellow states of the union.

So, it's tough...

But, to sum on commerce- yeah, I think it can go too far- but I'm not convinced it's unconstitutional.

Mike:
Man, thanks for such an in-depth and thoughtful response...it is even a teaching example! I really appreciate the food for thought.

I guess re all this COMMERCE info, my same old 10th Amendment and strict constructionist philosophical/consistency arguments I always mention come to the fore. Like with your excellent examples, I tend to be on the other side of all those commerce rulings and the blackmail by Congress of federal funds...remember those funds come from the people in the states! I think the drinking age federal rule is terrible for example, and so on. And I agree with your housemate, indeed to accept federal powers but then just say states can raise taxes and ignore the congressional money would make little 3rd world states.

It seems the answer is that Congress simply does not have the power to make any rule it wants and justify it by some twisted and clearly ridiculous "interpretation" of the Commerce Clause [and YES to original intent as one component of any interpretation]....back to strict constructionism for me....fair for big states and small...clearly separates states and feds....

Cheers, Mike


Andrew:
...

Clause 3: To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes

...

Clause 18: To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers...

When you have the question: "is X 'necessary and proper' to carrying out the power of 'regulating commerce' amongst the states," I see room for an interpretation taking a broad reading of what is necessary and proper. I say, we could both read the clause narrowly, and disagree with the Justice that reads it broadly...but I don't see how that makes us more true to the text, or strict constructionalists, than the other Justice. We are both interpreting. He might say we're being 'activist' in reading it narrowly.

Scalia's answer to this problem is that we read the words as they were intended, with the meaning they had at the end of the 18th century- but the problems with that are abundant, and in the end, I think his potentially earnest approach is intellectually immature. 1, the constitution was clearly drafted by people with different ideas of what these phrases mean. Wait, I don't even have to go that far: this is common sense...we disagree over what necessary and proper means now, right? Well, why in the heck do we think people of the late 18th century magically didn't? the other overwhelming reason to reject Scalia's originalism is the obvious, scant structure of the Constitution. It is MADE to be interpreted.

Now, this doesn't put me in a comfortable place to be...it leaves to much room for a painful disposition; to wit, that I disagree with a ruling without being convinced it is wrong constitutionally. But again, I say- I get the sense the broad reading of commerce is not entirely anti-constitutional. But, I don't like it. Here, I think I agree with Cass Sunstein: in the face of this problem, the most proper route for Constitutional decision making is small, case by case, prudent decisions, wherein you try to limit the reach of your decision, and apply it much as possible to the case at hand without making broad constitutional provisions.

Cheers,
andrew


Mike:
You and I probably need to update our broad versus strict conversation related to all this......

BUT: of course there must be INTERPRETATION....no document can be so specific on everything in the universe that the same words mean the same thing to all readers. but there IS such a thing as a logically STRICT interpretation, and a BROAD one; these are tangibly different. Because something can be interpreted does NOT mean anything goes! I get the feeling from you Broad folks that the Necessary and Proper clause allows practically anything! Heck, if this is true, then why not dump the whole Constitution and have the one sentence!?

Mike says the ENTIRE document should be viewed as a seamless whole, the context of the WHOLE being important in the interpretation of anything specific. So yes we have "delegated Powers" clauses and you cite the Commerce one, we have the concluding [for that section] N & P clause you cited......but, we also have the 10th amendment, and the B of R's, etc...heck, what about the Preamble?

So, it is legitimate for me to say I think it negative, inappropriate, and unconstituional to call "commerce" those things that arent really about commerce at all, ie drinking ages for example.....yes indeed, what IS commerce may need discussion, but the existence of the N & P clause alone does not suddenly mean all things can be considerd commerce! You of course may not be saying this, but if you arent, I cant see in anything where you would agree with me or draw a line around what commerce actually means.....Perhaps you could illustrate for
me.

And what you say re Scalia and original intent, I would agree with you if Scalia's only or even primary interpretation methodology is original intent..is this the case? But I disagree heartily with you if you mean to say original intent is not important and should not be considered. For example, the Framers certainly intended a 3 branch government in which no single branch could take control of the government. This was their final decision as the document shows! Though others debated this and disagreed, this is the document that now exists. We should know and consider the reasonings and underpinnings of WHY the 3 branches were adopted and WHY and HOW there is a balance of powers.....To ignore this in our interpretations of contemporary Law would be terrible! Wouldn't you agree?

So my friend, Where would you say that you and I seeing eye to eye, and where then are we boldly different?

Cheers, Mike