Blogs > Liberty and Power > Ok, fine, so there's no limit to federal power after all

Jun 6, 2005 4:11 pm

Ok, fine, so there's no limit to federal power after all

Bad news for liberty: the Supremes have made their decision in Ashcroft v. Raich, and the ruling is that there are no limits to federal power as long as you mention the phrase" commerce clause." Since the attorney for the good guys was VC blogger and BU Law Prof. Randy Barnett, anyone who is interested in this ought to go to Volokh several times today.

UPDATE: dissenting Justice Thomas sums it up pretty well thus:"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." His dissent is here, and Solum has links to everything as well as good analysis.

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Kevin Carson - 6/7/2005

The Supremes still haven't gone so far as to require the states to actively enforce federal policy. So while state governments can't actively facilitate or promote medpot, they can still refuse to help enforce federal drug laws. Since the federal War on Drugs is almost entirely dependent on state and local law enforcement, in inter-jurisdictional task forces, it is still incredibly vulnerable to a state and local pullout.

Kenneth R Gregg - 6/7/2005

I was thinking about the ramifications for this decision, and there are some quite serious possibilities, particularly in the international sphere. A lot of "Old Right" material was devoted to their concerns over international treaties, the U.N. and the breakdown of the U.S. Constitution.

They were right, after all. The majority opinion throws away any limitation upon state power, not just for the feds. Anything that the U.N. treaties enjoins in U.S. activity, either on a federal, state or personal level, is open to interpretation--any interpretation--of the courts. If international courts says personal freedom violates the U.N. Charter, one can make a case based upon this current decision that the federal courts must comply--and the state courts--and the local gendarmes.

This acceptance of fascist principles ("power is good, all power is gooder"), there are no protection against this, and the Supremes concur!--save for a couple 3 (of 9).

Just a thought.
Just Ken

Kenneth R Gregg - 6/7/2005

Yes, I noticed that as well. Barnett is to be congratuated for this "loss" in the long-term war. I'm quite impressed with Thomas' interpretation as well.

The commentary on the Legal Theory Blog referred to above looks as this as the end of the "New Federalism." I don't agree, but this is a long-term consideration, and much will be determined by the future Supremes, and who knows who is going to stand on the top of those pillars? I have lost hope as far as any Bush success in getting a libertarian-oriented candidate there in his term.

But there is a point that the Legal Theory Blog discussion that gives me some encouragement, and that is the awareness that Stevens' interpretation on economics is "bizarre" and weak at best. The more that the majority opinion gets picked apart for obvious economic stupidity, the better opportunity for a better, more free-market interpretation to arise in the future. Scalia also shows himself up as an obvious statist.

We shall see.

Just a thought.
Just Ken

Steven Horwitz - 6/6/2005

Note Thomas's multiple citations of Randy Barnett's work on the Commerce Clause. Randy's side may have lost the case, but the ideas remain.