Sunday, August 29, 2004

And she'll have fun fun fun...

Fun with the Commerce Clause!!! I deliciously love a paradox, namely a situation in which the Supreme Court will run head-on into its own dogmatic political ideology. Here's the situation: Slappy Thomas, Nino the Duckhunter, Bill "Look at my nifty gold stripes!" Rehnquist and Sandra "Dammit! I can't retire if Gore wins, Bush needs to win!" Day O'Conner have ushered in their Federalist Society wet-dream (can Sandy have a wet dream? just curious) of scaling back the reach of Congress by redefining the SCOTUS Commerce Clause jurisprudence in Lopez, and then in Morrison. Now, putting aside the issue of "activist judges" for a moment (itself a situation ripe with irony), let's confront the situation in which the Court will find themselves this coming term: How will they simultaneously narrow the scope of Congressional Commerce Clause power (the federalist argument) while still allowing the DEA's Congressionaly mandated (and mostly failed) federal "war on drugs." To be able to allow Congress the power to federally overrule California's (and a whole slew of other states) state law allowing medicinal ganja, Nino and the gang will have to put aside their federalism hard-ons; Conversely, to continue the Lopez line of cases and thereby advance the Federalist Society love of states rights (boy, don't you just LOVE a loaded term?), the SCOTUS will have to effectively hand a mighty big club to those working for saner drug laws and policy by allowing the voters of Cali-for-ni-yah the right to toke it up without fear of the Feds (provided they're under the supervision of a doctor, etc. etc. etc. But c'mon, let's be that an icy slope I see ahead?).

All in all, it appears that the Court will have to turn its back on one hallowed precept (state's raahts) or another (drugs are bad, m'kay?). Should be interesting, and probably will have Commerce Clause ramifications one way or the other; either we continue the Lopez/Morrison confining of federal power, or Morrison becomes the outer limits of federalism related to the Commerce Clause.



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