Raich, Medical Marijuana, the US Supreme Court, and a huge blow against Federalism

UPDATE: Lawrence Solum has a good quick intro and a long analysis hereClick here: Legal Theory Blog END UPDATE

UPDATE TWO: Clarence Thomas in his dissent (via Radley Balko:

If Congress can regulate this under the Commerce Clause, then it can regulate virtually anything--and the Federal Government is no longer one of limited and enumerated powers....

Certainly no evidence from the founding suggests that "commerce" included the mere possession of a good or some purely personal activity that did not involve trade or exchange for value. In the early days of the Republic, it would have been unthinkable that Congress could prohibit the local cultivation, possession, and consumption of marijuana.

END UPDATE TWO

It may well be that the Commerce Clause was the breach in the wall which shall destroy the concept of a federal government of limited and enumerated powers. This wasn't a surprising decision, but it was a very big one which goes far beyond the issue of medical marijuana.

The Supreme Court ruled that any effect whatsover upon interstate commerce, no matter how tenuous, meets the needs of the Commerce Clause. It's a shame this case was taken all the way to the Supreme Court: Now there is a solid precedent which largely eliminates the Commerce Clause as a limit on Federal power. It will likely be a very long time before the Raich decision is repudiated. David Bernstein has come comments at Volokh Conspiracy :

(1) The five-member majority of the Court simply does not take federalism seriously. Justice Stevens writes that Congressional factual findings are required when there is a "special concern such as the protection of free of speech." Apparently, however, the Constitution's limitations on federal power--critical by any measure to the American system of government--are not a "special concern," or even especially important.

(2) Justice Scalia's concurrence, unlike Justice Thomas's dissent, does not address the original meaning of the Commerce Clause. This reflects a pattern with Scalia, apparent also in his affirmative action, First Amendment, and other opinions: he is much more likely to resort to originalist arguments when they can be used to undermine Warren Court precedents...than when such arguments would either undermine his political views or challenge precedents that are not on the social conservative..."hit list."

(3) I predicted the outcome of this case...on the theory that wavering Justices...would be affected by political trends apparent in the United States...(T)he Republican Congress is vying with the Democratic Congresses of the 1930's and 1960's as the biggest supporter of increased federal power in American history....

(4) There are essentially two strategies for those who are concerned with civil liberties for limiting the government's ability to abuse the rights of the public. One is the standard ACLU strategy of being a liberal supporter of broad government power, and then insisting that the government respect individual rights, especially constitutional rights, when using that power. The other strategy, followed by libertarians, is to try to limit the government's general power to begin with because the government cannot abuse power it does not have. The drug war provides a least one example of the superiority of the libertarian strategy. The drug war has run roughshod over the civil libertarian accomplishments of the Warren Court, leading to a weakening to various degrees of the First, Second, Fourth, Fifth, Sixth, and Eighth amendments, not to mention a huge increase in the prison population, and the denial of the basic right to use relatively innocuous recreational drugs, even for medicinal or health purposes. Far better to have denied the federal government the power to regulate intrastate use of and sale of drugs to begin with...

(5) I was both amused and angered by Justice Stevens's paean to the democratic process as the appropriate avenue of relief for advocates of medical marijuana at the end of his opinion. Every Justice who joined Stevens's opinion voted to prohibit states from regulating homosexual sex in Lawrence and [if they were on the Court at the time] voted to limit the government's power to regulate abortion in Casey. Why was the democratic process not the appropriate avenue of relief for the victims of overzealous government regulation in those cases?

SCOTUSblog (SupremeCourt of the US blog) has a long round up of opinion on this as well. Marty Lederman notes there :

As Justice Breyer noted in dissent in Morrison, as long as Congress adds a "jurisdictional element," a previously unconstitutional statute can be readily salvaged. And that's exactly what Congress did after Lopez: it enacted a statute that made possession of handguns near schools unlawful if the gun had traveled in interstate commerce.