TheAgitator.com
Scalia Concurs
Monday, June 6th, 2005It’s slimy. I never thought I’d see an avowed federalist justice favorably cite Wickard vs. Filburn, but Scalia does, and essentially argues an “ends justifies the means” approach to the Commerce Clause.
The nut:
Congress may regulate even noneconomic local activity if that regulation is a necessary part of a more general regulation of interstate commerce . . .The relevant question is simply
whether the means chosen are “reasonably adapted” to the attainment of a legitimate end under the commerce power.
Scalia then abruptly terminates any progress the Court may have been making toward diminishing the impact of Wickard:
As Lopez itself states, and the Court affirms today, Congress may regulate noneconomic intrastate activities only where the failure to do so “could . . . undercut its regulation of interstate commerce.”[...]
Not only is it impossible to distinguish “controlled substances manufactured and distributed intrastate” from controlled substances manufactured and distributed interstate,Ã?â? but it hardly makes sense to speak in such terms. Drugs like marijuana are fungible commodities. As the Court explains, marijuana that is grown at home and possessed for personal use is never more than an instant from the interstate market–and this is so whether or not the possession is for medicinal use or lawful use under the laws of a particular State.
Conservatives have long railed against Wicker, which held that a farmer who grows his own grain on his own land is subject to federal regulation via the Commerce Clause. Scalia just affirmed it.
It’s also not clear to me how this might not apply to Lopez. If Congress has the authority to regulate the interstate flow of guns, isn’t any gun sold illictly, near a school for example, “never more than an instant” away from sale on the interstate black market? Isn’t allowing Congress to regulate the sale of black market guns within the states essential to upholding the effectiveness of its attempts to regulate the sale of guns between the states?
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