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Do this one next: https://en.wikipedia.org/wiki/Gonzales_v._Raich https://en.wikipedia.org/wiki/Gonzales_v._Raich The Supreme Court somehow held that the feds

Do this one next: https://en.wikipedia.org/wiki/Gonzales_v._Raich https://en.wikipedia.org/wiki/Gonzales_v._Raich The Supreme Court somehow held that the feds can regulate what you do in your own home (in this case, growing marijuana for personal use) because it could have a butterfly effect on the interstate price. (Constitutionally, the feds can only regulate _interstate_ commerce.)

swiftcoder 6mo ago
I'd imagine one wants to litigate Wickard v. Filburn in its entirety, rather than just the downstream Gonzales v. Raich
- mothballed 6mo ago
  That would also invalidate the civil rights act, as the (similar) 19th century CRA was already struck down because the 14th amendment binds against discrimination by public not private actors. The reason why the modern CRAs weren't also struck is because they rested on the laurels of Wickard v Filburn declaring the CRA (this time) is about regulating "interstate" commerce.
  - bombcar 6mo ago
    fixing the interstate commerce clause is one of those things that needs to be done eventually, but will likely never be done - even if just to "fix" it so everything remains the same but is based on simpler allocation of powers than through a "loophole".
    - gbacon 6mo ago
      John Roberts will find a way to screw it up.
  - drak0n1c 6mo ago
    That would be an improvement in the same spirit, as the modern CRAs are also unconstitutionally limiting over what one chooses to do with their own property. The scope should be limited to government-involved services and facilities, as those must serve all possible taxpayers. We live in a more connected, option-saturated information age where even bigots more often than not understand the utility of at least doing business politely and making nuanced exceptions. Egregious offenses are corrected by social pressure and business competition. The current regime of ambulance-chasing liabilities inserted into every organizational, contracting, and hiring process harms far more people of every race and sex than it helps.
    - BobaFloutist 6mo ago
      >Egregious offenses are corrected by social pressure and business competition. This doesn't work when bigots are willing to pay a premium for discriminatory services. Also, do you feel the same way about the FHA and Title VII? Those also involve regulating what you can choose to do with your private property, but I don't want to assume that you don't consider housing and employment to be distinct from, say, hotels and grocery stores.
      - hellojesus 6mo ago
        I think it should be repealed. It's legally baseless. How hard would it possibly be to get anti discriminatory Ammendments into the constitution? Surely at least 2/3 of reps are not that unfit.
- gbacon 6mo ago
  You have identified a root perversion. Roscoe Filburn’s wheat did not leave Ohio or even his farm. He didn’t offer it for sale; the wheat was for his own use. It was deemed to “affect interstate commerce” and thus within the scope of the interstate commerce clause. With that, a provision intended to remove power of states to tax each other’s goods and services and promote a free trade zone instead became a mechanism to nitpick and micromanage every last little detail, ossify existing practice, protect large players, give loopholes to the politically connected, and enable mass regulatory capture. It cannot be overturned quickly enough. https://supreme.justia.com/cases/federal/us/317/111/ https://supreme.justia.com/cases/federal/us/317/111/
  - laughing_man 6mo ago
    I don't see SCOTUS ever overturning Wickard, sadly. Too many federal programs and regulations would lose their legal basis if that happened.
    - gbacon 6mo ago
      You’re almost certainly correct. Kagan, Sotomayor, and Jackson would argue this consequentualist line. Thomas, Alito, and Gorsuch could be persuaded by textualist or originalist arguments and are the most likely overturn votes. Kavanaugh was a key man on standing up and defending the so-called PATRIOT Act during the George W. Bush administration, so no way he knocks out this pillar. ACB talked a strong originalist game during her confirmation but since shown it’s not her core philosophy. Although Roberts appears inclined to rein in the administrative state, he’s aligned chaotic neutral and thinks himself too clever. Already down 4-3 and having to persuade both Barrett and Roberts to join a ruling overturning parts of Wickard, another Dobbs seems wildly unlikely even though both precedents were poorly reasoned. At best, they agree to some marginal or technical reduction in scope. It seems equally likely that she sides with the four, in which case, what does Roberts do? He may need to make it 6-3 to control who writes the opinion. Such strong numbers would be unfavorable enough on the surface that he might persuade her back to an even more tepid limitation. The concurring opinions that it would induce from Thomas, Alito, and Gorsuch would be entertaining reading, at least.
jmyeet 6mo ago
I looked at the actual decision [1] and didn't see Filburn mentioned once. I find that odd. Filburn [2] was a controversial and far-reaching decision that said that the Federal government's ability to regulate interstate commerce extended to people growing wheat on their own property for their own use. The rationale was that by growing wheat you weren't participating in the interstate wheat market. That seems like a wild interpretation to me but it's Supreme Court precedent at this point. So I found this footnote: > The government does not challenge the district court’s Commerce Clause analysis on appeal. Accordingly, any such argument is forfeited, and we do not address it. That's interesting. Here's a legal analysis that does bring up the Commerce Clause and Filburn [3]. I really wonder why the government didn't raise this issue. I knew just from the headline this was going to be a 5th Circuit decision, and it was. This is the same circuit that is perfectly fine to override "state's rights" for other issues. [1]:https://www.ca5.uscourts.gov/opinions/pub/24/24-10760-CV0.pdf https://www.ca5.uscourts.gov/opinions/pub/24/24-10760-CV0.pd... [2]: https://en.wikipedia.org/wiki/Wickard_v._Filburn https://en.wikipedia.org/wiki/Wickard_v._Filburn [3]: https://www.yalejreg.com/nc/reviving-the-commerce-clause-one-home-distilled-spirit-at-a-time-by-eli-nachmany/ https://www.yalejreg.com/nc/reviving-the-commerce-clause-one...
- gbear605 6mo ago
  It's possible that the government thought that if they did try to challenge the Commerce Clause analysis, then the Supreme Court could have struck down Filburn. They'd much rather lose narrowly on this specific case than have Filburn reversed entirely.
  - mothballed 6mo ago
    SCOTUS did a pretty hilarious soft "strike down" of Wickard where they basically determined the gun free school zone act (GFSZA) violated interstate commerce clause. So congress just added "in interstate commerce" to the GFSZA and now it does the exact same thing even if there was no interstate commerce involved, and nothing involved ever crossed state lines or actually entered interstate commerce. So SCOTUS basically solved this by saying the law had to say "in interstate commerce" but it is basically just there as a talisman to ward away challenges, a distinction without any difference as it becomes a tautology.
tyre 6mo ago
Another case based on interstate commerce: the US ban on racial segregation. The example given, iirc, was restaurant competition across state lines.
- Der_Einzige 6mo ago
  I wouldn't be surprised if this one unironically goes given that Uber/Lyft are fully doing "women only" ride shares now. Gen Z / Alpha have embraced X-"realism" and fully accept essentialism/reject "intersectionality". They're far more conservative/prudish than millennials, even at their young age.
  - esseph 6mo ago
    > Gen Z / Alpha have embraced X-"realism" and fully accept essentialism/reject "intersectionality". They're far more conservative/prudish than millennials, even at their young age. This does not meet up with my experience with them at all. Just quick check, what percentage of onlyfans creators are Gen Z / Alpha vs other nonsense year demographics?
    - DennisP 6mo ago
      I think there's a selection effect there that makes it an unrepresentative sample.
      - esseph 6mo ago
        First, Gen Alpha is in their teens, so it's kind of hard to say what is happening there or will happen. Second, there is a growing divide between gen Z males that are skewing conservative in some ways. Their church/religious attendance is up, but overall attendance is still down. Gen Z females that are the most liberal demographic in history. The split is both political/social. (US analysis)
        fennecbutt 6mo ago
        >Their church/religious attendance is up This was debunked, at least in the UK. Not sure about the US but I'll bet it's the same sham (church sponsored) statistics. I think more of each generation is coming to realise that religion is an outmoded parasite.
tdb7893 6mo ago
I think much more likely is that it will just be made legal federally sometime in the next decade. Marijuana legalization has majorities across ideologies (https://news.gallup.com/poll/514007/grassroots-support-legalizing-marijuana-hits-record.aspx https://news.gallup.com/poll/514007/grassroots-support-legal...) and even though the inability to create federal law on something so popular seems like a good case study on how the US system doesn't always do a good job representing it's actual people, it seems to be at a critical mass where it can't be ignored for much longer. Even my parents' friends who are conservative have started doing weed.
- dmitrygr 6mo ago
  You’re probably right, though I dread the possibility. I cannot stand the smell, and one of the best things about moving from California to Texas was avoiding that pervasive smell being everywhere. Negative externalities of personal behavior really need to be handled better in our society. If you want pot to be legal, fine, but only inside your own personal enclosed house.
  - barbazoo 6mo ago
    That's only one of many ways to consume it, many people vape, have edibles or drinks and you just don't notice.
    - embedding-shape 6mo ago
      Even as a daily weed smoker myself though, it's hard not to acknowledge that a more liberal marijuana stance in a geographic location does lead to that smell being more commonly encountered when in public and out and about. Personally I don't mind, almost the opposite, but for people who don't like the smell, obviously they feel differently. Good thing we can have different policies in different places, and people can generally, one way or another, move themselves to other places. Could be easier, but could also be way worse.
      - dfdsjsdklfjs 6mo ago
pdonis 6mo ago
In Wickard v. Filburn, back in 1942, they said the same thing for wheat.
- thaumasiotes 6mo ago
  You say that like interstate commerce regulation was more egregious for wheat than it was for marijuana. But Raich is significantly more egregious: the theory on which the government won Wickard v. Filburn, that private consumption of wheat could affect the interstate market for wheat, doesn't even apply, because there can be no interstate market in a substance that is illegal to trade.
  - ianferrel 6mo ago
    >there can be no interstate market in a substance that is illegal to trade. There is in fact an interstate market in many substances that are illegal to trade because laws against things do not make those things fail to exist.
    - PaulDavisThe1st 6mo ago
      No market that the federal government can recognize, tax or regulate
      - lmm 6mo ago
        Illegal commerce is still subject to taxation and regulation, famously so in the case of Al Capone.
        IAmBroom 6mo ago
        Legally subject to. Practically, untaxed.
      - zdragnar 6mo ago
        By making it illegal, it has already been regulated. The IRS also requires reporting and taxing all income, even that which was unlawfully gained.
999900000999 6mo ago
The problem is if you say the government can’t regulate MJ, then all drug regulations fall apart. On one hand you should have a right to buy whatever you want at 21( which should be the minimum enlistment age), but I’d be concerned about Billy selling homemade GPLs or whatever.
- dylan604 6mo ago
  > The problem is if you say the government can’t regulate MJ, then all drug regulations fall apart. No, that's not what's being said. If you grow your own plant for personal use, there's no need for the federal government to be involved. If you grow that plant and then try to sell it, then there's some commerce which does fall under some regulation (we'll leave the interstate nuances aside). Having the fed being allowed to say you cannot grow in your house is one step away from saying you are only allowed to perform missionary position (no other positions are allowed) between the hours of 7-8pm, but not at all on Sunday.
  - kjkjadksj 6mo ago
    And before people say you are being hyperbolic, the government still regulates sex positions. Sodomy is illegal in 12 US states.
    - randallsquared 6mo ago
      Not the federal government, however. There are specific prohibitions on certain categories of state laws, like granting titles of nobility, creating non-gold/silver currencies, etc. The federal government cannot constitutionally regulate sex positions, because anything not explicitly covered in the Constitution is reserved to the states, or the people. In that broad grant, however, the states individually can make or avoid making law on any topic. As others have mentioned, the Supreme Court has frequently worked around the Constitution for reasons that made sense to them at the time, including the original ruling that this one overturns.
      - 6mo ago
torstenvl 6mo ago
The word "interstate" does not exist in the text of the Constitution. There's arguably some merit to your position, but the argument that some case law is invalid because it doesn't meet the definition of a term defined in other case law is circular and incoherent.
- codexb 6mo ago
  It uses the phrase “regulate commerce between the states” which effectively has the same meaning.
  - torstenvl 6mo ago
    No. It absolutely does not use that language, and it baffles me as to what would cause you to say that it does. Please endeavor to say only true things. The truth matters.
    - deleted 6mo ago
      [deleted]
    - bsimpson 6mo ago
      You're working awfully hard to be pedantic without comparing the actual language: > to regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes" https://en.wikipedia.org/wiki/Commerce_Clause https://en.wikipedia.org/wiki/Commerce_Clause
      - torstenvl 6mo ago
        [flagged]
        kelnos 6mo ago
        A paraphrase isn't a lie. The actual quoted passage from the constitution does indeed amount to a regulation of interstate commerce.
codexb 6mo ago
The controlling case is Wickard v Filburn (1942). A farmer was told he could only grow X acres of feed on his own land; feed that he had no intention of selling and was being fed entirely to his own livestock on the same land. This seems to overturn that in part, but until Wickard is overturned, and the interstate commerce clause reigned in, there will be weird side effects of it like this.
- semiquaver 6mo ago
  Circuit courts may not overrule Supreme Court precedent. Accordingly, this decision purports to rest on the “Necessary and Proper” clause, avoiding Wickard (decided on commerce clause grounds)
  - wahern 6mo ago
    In particular, Necessary and Proper as it relates to the taxing power, which the challenged statute relied upon, having been passed decades before the scope of Commerce Clause powers began their expansion, let alone Wickard v. Filburn.
  - gowld 6mo ago
    > Circuit courts may not overrule Supreme Court precedent. That's a Supreme Court opinion that only applies if the new case reaches their docket and gets reaffirmed.
  - HWR_14 6mo ago
    How does the supreme court revisit precedents if the circuit court doesn't readdress the issue?
    - PaulDavisThe1st 6mo ago
      Somebody has to bring a new case that presents a novel legal theory/presentation that isn't clearly addressed by the ruling that forms the precedent.
      - 6mo ago
laughing_man 6mo ago
If they reversed Gonzales v. Raich they'd be under a lot of pressure to reverse Wickard v. Fulburn, which would have such wide ramifications I just don't see the court doing it no matter how warranted.
john01dav 6mo ago
I suspect that if that ruling was made, then many other drugs being made at home for personal use might become legalized, at least unless states decide to go and ban it too. Note that I am not taking a position here on if that's desirable.
- bsimpson 6mo ago
  That's arguing around the point. If the law is broken, fix the law. Don't pervert logic to pretend that the existing law dictates what you want is correct. If Roe v Wade is based on faulty logic, cool - overturn it. But it then becomes Congress's responsibility to replace it with the correct version. The federal government isn't supposed to police people's personal behavior. "Federal" comes from "federation" as in, the group of states in the union. It's the job of the legislature to write the laws, the job of the judiciary to interpret the laws, and the job of the states to do these things for areas that don't rise to the level enumerated in the Constitution. When you get it twisted, you end up with this tug-of-war where corrupt politicians try to put biased judges on the bench to mold the rules to their whims without actually having to pass them.
  - gowld 6mo ago
    > If the law is broken, fix the law If you follow that argument to its conclusion, you end up at: fixing the law requires amending the Constitution, and if the law for amending the constitution is broken, the remedy is revolution. Most participants prefer the current practice instead.
    - DangitBobby 6mo ago
      Maybe we could get enough support behind an amendment to amend the amendment process.
- abigail95 6mo ago
  If anyone considers that outcome to be strange - that's how most things are supposed to be regulated. It's doubly specified in the wording of the constitution and 10A. If one takes the opinion interstate commerce means buying, selling and transporting. It's also how the current system works. Most drug convictions are based on state law. Federal drug prosecutions are 2% of the total. Every state has its version of controlled substances act. Nothing much would change at all.
Tangurena2 6mo ago
Many American treaties (with other nations) prohibit both/either parties from decriminalizing marijuana among other drugs. Links: discusses some of the treaties: https://www2.nycbar.org/pdf/InternationalDrugControlTreatiesArticle.pdf https://www2.nycbar.org/pdf/InternationalDrugControlTreaties... History of illegalization of pot: https://www.congress.gov/crs-product/R44782 https://www.congress.gov/crs-product/R44782
- bsimpson 6mo ago
  It's not about decriminalizing marijuana - it's about the absurd assertion that the federal government can regulate what you do personally because "yadda yadda yadda…interstate commerce!"
- tavavex 6mo ago
  These treaties are ancient and mostly irrelevant, especially outside the topic of hard drugs. Unless you're doing harm to the other nations, no one will do anything. This paper is all the way from 2012. Since its publication, many countries have pushed the limits to far greater lengths than what it talks about. Canada remains a signatory to all the old 60s-80s treaties about drugs, but can you guess what the consequences were when we legalized cannabis in spite of all of them? No one cares about these.
- 15155 6mo ago
  Treaties can't legally do an end-run around the limits prescribed to the government in the Constitution.
andrewmg 6mo ago
Our companion case in the Sixth Circuit tees up the issue: https://www.buckeyeinstitute.org/issues/detail/ream-v-us-department-of-treasury https://www.buckeyeinstitute.org/issues/detail/ream-v-us-dep... See the opening brief.
- nullc 6mo ago
  Thank you for your work here. Overcoming the argument that a threat of prosecution doesn't create standing is a huge advancement for the cause of freedom-- in light of Babbitt the state never should have been arguing otherwise nor should the lower court have ruled that way but they were and that line of argument is protecting a lot of facially unconstitutional law.
webdoodle 6mo ago
The entire 10th amendment is basically being ignored because interstate commerce policies and rulings. For that matter, the 1st, 4th and 5th aren't being upheld either.
nradov 6mo ago
Yes, regardless of that specific case I'm hoping to see a series of Supreme Court decisions that will eviscerate federal government power over internal state affairs and restore the original intent of the 10th Amendment. Long live federalism.
- threecheese 6mo ago
  We’ve already seen states try and regulate outside their borders; TX with abortion as one example. How does a weaker federal government protect against this, or do you believe it should not? And how does this not devolve into 50 fiefdoms?
- carefulfungi 6mo ago
  It will be an interesting next decade or two on this topic. The federal government increased its power in part to coerce States to end Jim Crow, to broaden personal liberty (like with Roe v. Wade), establish a social safety net, and set minimum environmental protection standards. If we keep seeing federal power being used to compel a reduction in liberalism among the States, the sides supporting "state rights" seem likely to switch. Adding to that, if the supreme court continues to make realistic federal administration harder by tearing down executive rule making authority and requiring more explicit Congressional rule making (which can't scale in our current system), we'll continue to see less stable and predictable federal regulatory actions - which might further compel the states to step in... But where will States raise the taxes to make this happen? While the federal government seems willing to do less (in terms of classic liberalism policies), it certainly isn't reducing its spending. And how will States defend themselves from federal intrusion if they do start to claim more of their power - will we see armed stand-offs between national and state forces?
saltyoldman 6mo ago
nah, 3d printed firearms next.
bilekas 6mo ago
That's really strange.. I grow tomatoes at home. Surely that would apply too?
- vel0city 6mo ago
  Yes, it would. But there isn't currently a law limiting the amount of tomatoes one can grow especially for personal consumption. In 1938, the Agricultural Adjustment Act was passed. This law tried to control the prices of food by determining quotas for production. Filburn was allowed to grow ~11 acres of wheat. He went and grew 23 acres of wheat, setting aside the overproduction for personal consumption while taking that ~11 acres to market.
deleted 6mo ago
[deleted]
dragonwriter 6mo ago
Gonzales v. Raich (2005) is a pretty straightforward application of the precedent of Wickard v. Filburn, 317 U.S. 111 (1942) [0] rather than a novel, out-of-the-blue new interpretation of the Constitution. [0] https://en.wikipedia.org/wiki/Wickard_v._Filburn https://en.wikipedia.org/wiki/Wickard_v._Filburn

swiftcoder 6mo ago

I'd imagine one wants to litigate Wickard v. Filburn in its entirety, rather than just the downstream Gonzales v. Raich

mothballed 6mo ago
That would also invalidate the civil rights act, as the (similar) 19th century CRA was already struck down because the 14th amendment binds against discrimination by public not private actors. The reason why the modern CRAs weren't also struck is because they rested on the laurels of Wickard v Filburn declaring the CRA (this time) is about regulating "interstate" commerce.
- bombcar 6mo ago
  fixing the interstate commerce clause is one of those things that needs to be done eventually, but will likely never be done - even if just to "fix" it so everything remains the same but is based on simpler allocation of powers than through a "loophole".
  - gbacon 6mo ago
    John Roberts will find a way to screw it up.
- drak0n1c 6mo ago
  That would be an improvement in the same spirit, as the modern CRAs are also unconstitutionally limiting over what one chooses to do with their own property. The scope should be limited to government-involved services and facilities, as those must serve all possible taxpayers. We live in a more connected, option-saturated information age where even bigots more often than not understand the utility of at least doing business politely and making nuanced exceptions. Egregious offenses are corrected by social pressure and business competition. The current regime of ambulance-chasing liabilities inserted into every organizational, contracting, and hiring process harms far more people of every race and sex than it helps.
  - BobaFloutist 6mo ago
    >Egregious offenses are corrected by social pressure and business competition. This doesn't work when bigots are willing to pay a premium for discriminatory services. Also, do you feel the same way about the FHA and Title VII? Those also involve regulating what you can choose to do with your private property, but I don't want to assume that you don't consider housing and employment to be distinct from, say, hotels and grocery stores.
    - hellojesus 6mo ago
      I think it should be repealed. It's legally baseless. How hard would it possibly be to get anti discriminatory Ammendments into the constitution? Surely at least 2/3 of reps are not that unfit.
gbacon 6mo ago
You have identified a root perversion. Roscoe Filburn’s wheat did not leave Ohio or even his farm. He didn’t offer it for sale; the wheat was for his own use. It was deemed to “affect interstate commerce” and thus within the scope of the interstate commerce clause. With that, a provision intended to remove power of states to tax each other’s goods and services and promote a free trade zone instead became a mechanism to nitpick and micromanage every last little detail, ossify existing practice, protect large players, give loopholes to the politically connected, and enable mass regulatory capture. It cannot be overturned quickly enough. https://supreme.justia.com/cases/federal/us/317/111/ https://supreme.justia.com/cases/federal/us/317/111/
- laughing_man 6mo ago
  I don't see SCOTUS ever overturning Wickard, sadly. Too many federal programs and regulations would lose their legal basis if that happened.
  - gbacon 6mo ago
    You’re almost certainly correct. Kagan, Sotomayor, and Jackson would argue this consequentualist line. Thomas, Alito, and Gorsuch could be persuaded by textualist or originalist arguments and are the most likely overturn votes. Kavanaugh was a key man on standing up and defending the so-called PATRIOT Act during the George W. Bush administration, so no way he knocks out this pillar. ACB talked a strong originalist game during her confirmation but since shown it’s not her core philosophy. Although Roberts appears inclined to rein in the administrative state, he’s aligned chaotic neutral and thinks himself too clever. Already down 4-3 and having to persuade both Barrett and Roberts to join a ruling overturning parts of Wickard, another Dobbs seems wildly unlikely even though both precedents were poorly reasoned. At best, they agree to some marginal or technical reduction in scope. It seems equally likely that she sides with the four, in which case, what does Roberts do? He may need to make it 6-3 to control who writes the opinion. Such strong numbers would be unfavorable enough on the surface that he might persuade her back to an even more tepid limitation. The concurring opinions that it would induce from Thomas, Alito, and Gorsuch would be entertaining reading, at least.

jmyeet 6mo ago

I looked at the actual decision [1] and didn't see Filburn mentioned once. I find that odd. Filburn [2] was a controversial and far-reaching decision that said that the Federal government's ability to regulate interstate commerce extended to people growing wheat on their own property for their own use. The rationale was that by growing wheat you weren't participating in the interstate wheat market. That seems like a wild interpretation to me but it's Supreme Court precedent at this point. So I found this footnote: > The government does not challenge the district court’s Commerce Clause analysis on appeal. Accordingly, any such argument is forfeited, and we do not address it. That's interesting. Here's a legal analysis that does bring up the Commerce Clause and Filburn [3]. I really wonder why the government didn't raise this issue. I knew just from the headline this was going to be a 5th Circuit decision, and it was. This is the same circuit that is perfectly fine to override "state's rights" for other issues. [1]:https://www.ca5.uscourts.gov/opinions/pub/24/24-10760-CV0.pdf https://www.ca5.uscourts.gov/opinions/pub/24/24-10760-CV0.pd... [2]: https://en.wikipedia.org/wiki/Wickard_v._Filburn https://en.wikipedia.org/wiki/Wickard_v._Filburn [3]: https://www.yalejreg.com/nc/reviving-the-commerce-clause-one-home-distilled-spirit-at-a-time-by-eli-nachmany/ https://www.yalejreg.com/nc/reviving-the-commerce-clause-one...

gbear605 6mo ago
It's possible that the government thought that if they did try to challenge the Commerce Clause analysis, then the Supreme Court could have struck down Filburn. They'd much rather lose narrowly on this specific case than have Filburn reversed entirely.
- mothballed 6mo ago
  SCOTUS did a pretty hilarious soft "strike down" of Wickard where they basically determined the gun free school zone act (GFSZA) violated interstate commerce clause. So congress just added "in interstate commerce" to the GFSZA and now it does the exact same thing even if there was no interstate commerce involved, and nothing involved ever crossed state lines or actually entered interstate commerce. So SCOTUS basically solved this by saying the law had to say "in interstate commerce" but it is basically just there as a talisman to ward away challenges, a distinction without any difference as it becomes a tautology.

tyre 6mo ago

Another case based on interstate commerce: the US ban on racial segregation. The example given, iirc, was restaurant competition across state lines.

Der_Einzige 6mo ago
I wouldn't be surprised if this one unironically goes given that Uber/Lyft are fully doing "women only" ride shares now. Gen Z / Alpha have embraced X-"realism" and fully accept essentialism/reject "intersectionality". They're far more conservative/prudish than millennials, even at their young age.
- esseph 6mo ago
  > Gen Z / Alpha have embraced X-"realism" and fully accept essentialism/reject "intersectionality". They're far more conservative/prudish than millennials, even at their young age. This does not meet up with my experience with them at all. Just quick check, what percentage of onlyfans creators are Gen Z / Alpha vs other nonsense year demographics?
  - DennisP 6mo ago
    I think there's a selection effect there that makes it an unrepresentative sample.
    - esseph 6mo ago
      First, Gen Alpha is in their teens, so it's kind of hard to say what is happening there or will happen. Second, there is a growing divide between gen Z males that are skewing conservative in some ways. Their church/religious attendance is up, but overall attendance is still down. Gen Z females that are the most liberal demographic in history. The split is both political/social. (US analysis)
      - fennecbutt 6mo ago
        >Their church/religious attendance is up This was debunked, at least in the UK. Not sure about the US but I'll bet it's the same sham (church sponsored) statistics. I think more of each generation is coming to realise that religion is an outmoded parasite.

tdb7893 6mo ago

I think much more likely is that it will just be made legal federally sometime in the next decade. Marijuana legalization has majorities across ideologies (https://news.gallup.com/poll/514007/grassroots-support-legalizing-marijuana-hits-record.aspx https://news.gallup.com/poll/514007/grassroots-support-legal...) and even though the inability to create federal law on something so popular seems like a good case study on how the US system doesn't always do a good job representing it's actual people, it seems to be at a critical mass where it can't be ignored for much longer. Even my parents' friends who are conservative have started doing weed.

dmitrygr 6mo ago
You’re probably right, though I dread the possibility. I cannot stand the smell, and one of the best things about moving from California to Texas was avoiding that pervasive smell being everywhere. Negative externalities of personal behavior really need to be handled better in our society. If you want pot to be legal, fine, but only inside your own personal enclosed house.
- barbazoo 6mo ago
  That's only one of many ways to consume it, many people vape, have edibles or drinks and you just don't notice.
  - embedding-shape 6mo ago
    Even as a daily weed smoker myself though, it's hard not to acknowledge that a more liberal marijuana stance in a geographic location does lead to that smell being more commonly encountered when in public and out and about. Personally I don't mind, almost the opposite, but for people who don't like the smell, obviously they feel differently. Good thing we can have different policies in different places, and people can generally, one way or another, move themselves to other places. Could be easier, but could also be way worse.
    - dfdsjsdklfjs 6mo ago

pdonis 6mo ago

In Wickard v. Filburn, back in 1942, they said the same thing for wheat.

thaumasiotes 6mo ago
You say that like interstate commerce regulation was more egregious for wheat than it was for marijuana. But Raich is significantly more egregious: the theory on which the government won Wickard v. Filburn, that private consumption of wheat could affect the interstate market for wheat, doesn't even apply, because there can be no interstate market in a substance that is illegal to trade.
- ianferrel 6mo ago
  >there can be no interstate market in a substance that is illegal to trade. There is in fact an interstate market in many substances that are illegal to trade because laws against things do not make those things fail to exist.
  - PaulDavisThe1st 6mo ago
    No market that the federal government can recognize, tax or regulate
    - lmm 6mo ago
      Illegal commerce is still subject to taxation and regulation, famously so in the case of Al Capone.
      - IAmBroom 6mo ago
        Legally subject to. Practically, untaxed.
    - zdragnar 6mo ago
      By making it illegal, it has already been regulated. The IRS also requires reporting and taxing all income, even that which was unlawfully gained.

999900000999 6mo ago

The problem is if you say the government can’t regulate MJ, then all drug regulations fall apart. On one hand you should have a right to buy whatever you want at 21( which should be the minimum enlistment age), but I’d be concerned about Billy selling homemade GPLs or whatever.

dylan604 6mo ago
> The problem is if you say the government can’t regulate MJ, then all drug regulations fall apart. No, that's not what's being said. If you grow your own plant for personal use, there's no need for the federal government to be involved. If you grow that plant and then try to sell it, then there's some commerce which does fall under some regulation (we'll leave the interstate nuances aside). Having the fed being allowed to say you cannot grow in your house is one step away from saying you are only allowed to perform missionary position (no other positions are allowed) between the hours of 7-8pm, but not at all on Sunday.
- kjkjadksj 6mo ago
  And before people say you are being hyperbolic, the government still regulates sex positions. Sodomy is illegal in 12 US states.
  - randallsquared 6mo ago
    Not the federal government, however. There are specific prohibitions on certain categories of state laws, like granting titles of nobility, creating non-gold/silver currencies, etc. The federal government cannot constitutionally regulate sex positions, because anything not explicitly covered in the Constitution is reserved to the states, or the people. In that broad grant, however, the states individually can make or avoid making law on any topic. As others have mentioned, the Supreme Court has frequently worked around the Constitution for reasons that made sense to them at the time, including the original ruling that this one overturns.
    - 6mo ago

torstenvl 6mo ago

The word "interstate" does not exist in the text of the Constitution. There's arguably some merit to your position, but the argument that some case law is invalid because it doesn't meet the definition of a term defined in other case law is circular and incoherent.

codexb 6mo ago
It uses the phrase “regulate commerce between the states” which effectively has the same meaning.
- torstenvl 6mo ago
  No. It absolutely does not use that language, and it baffles me as to what would cause you to say that it does. Please endeavor to say only true things. The truth matters.
  - deleted 6mo ago
    [deleted]
  - bsimpson 6mo ago
    You're working awfully hard to be pedantic without comparing the actual language: > to regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes" https://en.wikipedia.org/wiki/Commerce_Clause https://en.wikipedia.org/wiki/Commerce_Clause
    - torstenvl 6mo ago
      [flagged]
      - kelnos 6mo ago
        A paraphrase isn't a lie. The actual quoted passage from the constitution does indeed amount to a regulation of interstate commerce.

codexb 6mo ago

The controlling case is Wickard v Filburn (1942). A farmer was told he could only grow X acres of feed on his own land; feed that he had no intention of selling and was being fed entirely to his own livestock on the same land. This seems to overturn that in part, but until Wickard is overturned, and the interstate commerce clause reigned in, there will be weird side effects of it like this.

semiquaver 6mo ago
Circuit courts may not overrule Supreme Court precedent. Accordingly, this decision purports to rest on the “Necessary and Proper” clause, avoiding Wickard (decided on commerce clause grounds)
- wahern 6mo ago
  In particular, Necessary and Proper as it relates to the taxing power, which the challenged statute relied upon, having been passed decades before the scope of Commerce Clause powers began their expansion, let alone Wickard v. Filburn.
- gowld 6mo ago
  > Circuit courts may not overrule Supreme Court precedent. That's a Supreme Court opinion that only applies if the new case reaches their docket and gets reaffirmed.
- HWR_14 6mo ago
  How does the supreme court revisit precedents if the circuit court doesn't readdress the issue?
  - PaulDavisThe1st 6mo ago
    Somebody has to bring a new case that presents a novel legal theory/presentation that isn't clearly addressed by the ruling that forms the precedent.
    - 6mo ago

laughing_man 6mo ago

If they reversed Gonzales v. Raich they'd be under a lot of pressure to reverse Wickard v. Fulburn, which would have such wide ramifications I just don't see the court doing it no matter how warranted.

john01dav 6mo ago

I suspect that if that ruling was made, then many other drugs being made at home for personal use might become legalized, at least unless states decide to go and ban it too. Note that I am not taking a position here on if that's desirable.

bsimpson 6mo ago
That's arguing around the point. If the law is broken, fix the law. Don't pervert logic to pretend that the existing law dictates what you want is correct. If Roe v Wade is based on faulty logic, cool - overturn it. But it then becomes Congress's responsibility to replace it with the correct version. The federal government isn't supposed to police people's personal behavior. "Federal" comes from "federation" as in, the group of states in the union. It's the job of the legislature to write the laws, the job of the judiciary to interpret the laws, and the job of the states to do these things for areas that don't rise to the level enumerated in the Constitution. When you get it twisted, you end up with this tug-of-war where corrupt politicians try to put biased judges on the bench to mold the rules to their whims without actually having to pass them.
- gowld 6mo ago
  > If the law is broken, fix the law If you follow that argument to its conclusion, you end up at: fixing the law requires amending the Constitution, and if the law for amending the constitution is broken, the remedy is revolution. Most participants prefer the current practice instead.
  - DangitBobby 6mo ago
    Maybe we could get enough support behind an amendment to amend the amendment process.
abigail95 6mo ago
If anyone considers that outcome to be strange - that's how most things are supposed to be regulated. It's doubly specified in the wording of the constitution and 10A. If one takes the opinion interstate commerce means buying, selling and transporting. It's also how the current system works. Most drug convictions are based on state law. Federal drug prosecutions are 2% of the total. Every state has its version of controlled substances act. Nothing much would change at all.

Tangurena2 6mo ago

Many American treaties (with other nations) prohibit both/either parties from decriminalizing marijuana among other drugs. Links: discusses some of the treaties: https://www2.nycbar.org/pdf/InternationalDrugControlTreatiesArticle.pdf https://www2.nycbar.org/pdf/InternationalDrugControlTreaties... History of illegalization of pot: https://www.congress.gov/crs-product/R44782 https://www.congress.gov/crs-product/R44782

bsimpson 6mo ago
It's not about decriminalizing marijuana - it's about the absurd assertion that the federal government can regulate what you do personally because "yadda yadda yadda…interstate commerce!"
tavavex 6mo ago
These treaties are ancient and mostly irrelevant, especially outside the topic of hard drugs. Unless you're doing harm to the other nations, no one will do anything. This paper is all the way from 2012. Since its publication, many countries have pushed the limits to far greater lengths than what it talks about. Canada remains a signatory to all the old 60s-80s treaties about drugs, but can you guess what the consequences were when we legalized cannabis in spite of all of them? No one cares about these.
15155 6mo ago
Treaties can't legally do an end-run around the limits prescribed to the government in the Constitution.

andrewmg 6mo ago

Our companion case in the Sixth Circuit tees up the issue: https://www.buckeyeinstitute.org/issues/detail/ream-v-us-department-of-treasury https://www.buckeyeinstitute.org/issues/detail/ream-v-us-dep... See the opening brief.

nullc 6mo ago
Thank you for your work here. Overcoming the argument that a threat of prosecution doesn't create standing is a huge advancement for the cause of freedom-- in light of Babbitt the state never should have been arguing otherwise nor should the lower court have ruled that way but they were and that line of argument is protecting a lot of facially unconstitutional law.

webdoodle 6mo ago

The entire 10th amendment is basically being ignored because interstate commerce policies and rulings. For that matter, the 1st, 4th and 5th aren't being upheld either.

nradov 6mo ago

Yes, regardless of that specific case I'm hoping to see a series of Supreme Court decisions that will eviscerate federal government power over internal state affairs and restore the original intent of the 10th Amendment. Long live federalism.

threecheese 6mo ago
We’ve already seen states try and regulate outside their borders; TX with abortion as one example. How does a weaker federal government protect against this, or do you believe it should not? And how does this not devolve into 50 fiefdoms?
carefulfungi 6mo ago
It will be an interesting next decade or two on this topic. The federal government increased its power in part to coerce States to end Jim Crow, to broaden personal liberty (like with Roe v. Wade), establish a social safety net, and set minimum environmental protection standards. If we keep seeing federal power being used to compel a reduction in liberalism among the States, the sides supporting "state rights" seem likely to switch. Adding to that, if the supreme court continues to make realistic federal administration harder by tearing down executive rule making authority and requiring more explicit Congressional rule making (which can't scale in our current system), we'll continue to see less stable and predictable federal regulatory actions - which might further compel the states to step in... But where will States raise the taxes to make this happen? While the federal government seems willing to do less (in terms of classic liberalism policies), it certainly isn't reducing its spending. And how will States defend themselves from federal intrusion if they do start to claim more of their power - will we see armed stand-offs between national and state forces?

saltyoldman 6mo ago

nah, 3d printed firearms next.

bilekas 6mo ago

That's really strange.. I grow tomatoes at home. Surely that would apply too?

vel0city 6mo ago
Yes, it would. But there isn't currently a law limiting the amount of tomatoes one can grow especially for personal consumption. In 1938, the Agricultural Adjustment Act was passed. This law tried to control the prices of food by determining quotas for production. Filburn was allowed to grow ~11 acres of wheat. He went and grew 23 acres of wheat, setting aside the overproduction for personal consumption while taking that ~11 acres to market.

deleted 6mo ago

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dragonwriter 6mo ago

Gonzales v. Raich (2005) is a pretty straightforward application of the precedent of Wickard v. Filburn, 317 U.S. 111 (1942) [0] rather than a novel, out-of-the-blue new interpretation of the Constitution. [0] https://en.wikipedia.org/wiki/Wickard_v._Filburn https://en.wikipedia.org/wiki/Wickard_v._Filburn