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July 9, 2012

Did conservative affinity for the federal drug war save the Affordable Care Act?

Back in March around the time of the oral arguments in the health care cases, I blogged, in this post titled "Liberty, commerce, the federal drug war, health care reform and the Constitution," about the links I saw between the 2005 Commerce Clause challenge to federal marijuana possession laws in Raich and the 2012 challenge to the Affordable Care Act.  That post (which generated a lot of insightful comments) concluded with these sentiments:

Whether the constitutional concern is personal liberty or limits on federal power, I think it is much harder to justify the reach of the federal drug war in Raich than to justify the reach of federal health care reform and the individual mandate. But, sadly, while so many are energized and eager (mostly for political, not legal reasons) for SCOTUS to strike down all of federal health care reform, so few in 2005 were energized and eager for SCOTUS to strike down the most extreme application of the federal drug war. This is not only disappointing, in my view, but also another great example of the old aphorism "what comes around, goes around."

As evidenced by this post at The Volokh Conspiracy, titled "Who Lost the ACA Litigation?  Kennedy and Scalia in 2005," some post-game analysis of the SCOTUS heath care ruling is picking up on the reality that legal and social perspective on the limits of federal power would have been much different in 2012 if Justices Kennedy and Scalia had not voted against any limits on the federal drug war in Raich.  Here are snippets from a terrific exposition on this point authored by Professor Michael Ramsey:

[T]he most important date for the outcome in the challenge to the individual mandate may have been June 6, 2005, when the Court ruled 6-3 for the government in Gonzales v. Raich.

That is not because of the force of precedent.  Precedent, especially at the Supreme Court level, is overrated.  Justices can and do (and perhaps should) distinguish cases on flimsy grounds.  It’s also not because Raich was in itself an important case -- the ability to grow marijuana in one’s own backyard seems a minor freedom at best.  No one doubts that states can ban such activity, and most have for a long time.  But Raich was a lost opportunity to build incrementally a legal culture that would have supported a more constraining decision in the health care case. 

Consider the world we would have if Justices Kennedy and Scalia -- who now deplore the Court’s failure to check the national government in the health care challenge -- had joined Justice O’Connor’s Raich dissent.  That would have produced a 5-4 decision against the government (those three plus Justice Thomas and Chief Justice Rehnquist, who did join O’Connor).  Despite the closeness of the vote, it likely wouldn’t have met sustained opposition.  O’Connor was perceived as moderate and non-ideological, providing political cover.  The issue was narrow: whether the national government could prevent Ms. Raich from growing marijuana in her own backyard for her own medical use.  A ruling against the government posed no serious challenge to the national drug laws, and O’Connor’s dissent (which would have become the majority) is appropriately and characteristically narrow....[T]hough the decision would have been criticized, it would have been accepted into the legal culture, taught in law schools, cited in briefs, and become part of commentators’ vocabularies.

Would that have mattered? I think so. In this hypothetical world, the decision against the government in Raich would have extended the trend of the Lopez (1995) and Morrison (2000) cases, whose central message was that there were (some) federalism limits on the national government. It would have signaled that the longstanding and pivotal precedent Wickard v. Filburn didn’t mean everything it might be thought to mean....

Instead, the actual result in Raich (and especially Scalia’s and Kennedy’s agreement with it) signaled that the Court was not inclined to press the federalism project opened in Lopez and Morrison; a broad view of Wickard appeared secure, and it seemed plausible to assume that (absent political motivations) the Court wouldn’t take meaningful federalism-based actions against an important national law (since it could not even bring itself to take the insignificant action Ms. Raich wanted).  The decision in Raich became a weapon for the health care law’s defenders -- again, not because it bound the Court into a particular result, but because it promoted a legal culture in which federalism challenges weren’t expected to be taken seriously.

One may argue that something as abstract and ephemeral as “legal culture” can’t determine the views of life-tenured Justices.  That’s likely true of particular judges and in particular cases.  But in close cases there will be Justices who are uncertain and whose votes will be needed; and for them the legal culture will matter, both because they are products of it, and because they will hesitate to stand against it.  The closeness of the health care case despite a hostile legal culture, and the speculations regarding the Chief Justice’s concerns, suggest that a more accommodating legal culture might have made the difference.  If so, perhaps the challenge to the mandate was lost in 2005.

An extra bit of modern irony to this constitutional jurisprudence story comes from the fact that (1) Justice Kennedy has now become a regular vote for federal defendants in drug sentencing cases (see, e.g., Dorsey and Setser and Tapia recently), and (2) Justice Scalia has become a rather vocal critic of too many "local" drug cases being prosecuted in federal court (see, e.g., posts here and here).  Thus, in addition to being contrary to their strong views expressed in the ACA cases about the reach of federal power, their swing votes in the 2005 Raich case would now seems to be against their legal/policy views that the federal drug war has now led to too many little cases being brought into federal court and being subject to federal punishments that are too extreme.

July 9, 2012 at 03:40 AM | Permalink

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There is a simpler link between the drug war and the ACA. Federalism is just another lawyer lie. The results are always the same, bigger government, more worthless hyper-proceduralism, more lawyer jobs, no matter who appoints or who is appointed.

Both are lawyer schemes to generate massive government make work jobs, and control of large segments of the economy. When we say, government, we are saying a wholly owned subsidiary of the criminal cult enterprise that makes 99% of its policies, the lawyer profession. There is no legal recourse. There is no legislative recourse. The ACA is copied from the plan of Mitt Romney when governor. If elected, Romney may make cosmetic changes, but single payer is coming. Both candidates are victims of Harvard Law school treason indoctrination camp. Romney is just slicker than Obama at hiding the ultimate goal.

Commie Care is cheap care. It defunds clinical health care to grow the bureaucracy. It killed Princess Diana, who would have survived her injuries in the poorest sections of the USA (no jaws of life (cost? $1200), no telemetry, no helicopter, no trauma team, no nothing, just idiots taking 45 minutes to extract her from the car (she was conscious, talking, and in good shape for 30 precious and wasted minutes, then, an hour and a half for a 4 mile ride to the hospital at midnight, with no traffic; why so long? Why because they kept taking her out of the ambulance to do CPR, on a trauma victim, compressing her chest and pushing the little blood she had left out of the tear in her pulmonary artery even faster. Commie morons killed Princess Diana. What chance do ordinary people like us have under Obamacare?)

What will happen is that after 100 years of failure and damage to the health of the population, people may wise up. And we will have an American Glastnost. No one reading this blog today will see it.

http://www.ebay.com/itm/Hurst-JAWS-OF-LIFE-32A-Hydraulic-Rescue-Tool-Spreader-/220922728473?pt=BI_Security_Fire_Protection&hash=item3370055019

Not $1200, $400.

Posted by: Supremacy Claus | Jul 9, 2012 5:54:36 AM

It really is sad to see otherwise intelligent people descend into madness. The poor Volokh lawyers are going to be relitigating ObamaCare till they die. They still can’t believe that liberals snatched victory from the jaws of defeat, with the Chief Justice’s last-minute switcheroo.

It’s a pretty big stretch to say that conservatives lost the ACA when Scalia and Kennedy voted with the majority in Raich. Remember, the individual mandate was originally a conservative project. Liberals chose that route, in lieu of the system they really wanted (single-payer), in order to make the bill more palatable to Republicans and centrist Democrats. They did get the centrist Democrats -- especially in the Senate, where they needed every last one of them -- but in the end, no Republicans, who had suddenly lost interest in the very idea they had once espoused.

Posted by: Marc Shepherd | Jul 9, 2012 9:15:41 AM

The idea that Raich saved the ACA is baloney. As has been widely noted (although apparently Prof. Ramsey missed it), the ACA got saved only because Chief Justice Roberts concluded that it was permissible under the taxing power. He and four other Justices believed, however -- and said explictly -- that it was IMPERMISSIBLE under the Commerce Clause, even as broadly as that Clause has been interpreted (including in Raich).

Since the majority's view of the Commerce Clause was ALREADY that it would not, on its own, have sufficed to rescue the ACA, it's absurd to think that the opposite decision in Raich about the reach of the Commerce Clause would have bailed out those opposed to the ACA. What they needed, but didn't have, was more constraining precedent about the TAXING power of the federal government -- something Raich says exactly zero about.

Posted by: Bill Otis | Jul 9, 2012 9:26:22 AM

@Bill Otis +1

What is remarkable is that the Volokh lawyers are generally very level-headed folks, and now they are running off the rails. Maybe they’ve been smoking the pot that they wished Raich had allowed them to grow.

Posted by: Marc Shepherd | Jul 9, 2012 9:33:59 AM

I think the point being made by Prof. Ramsey is that the culture (as well as the politics) surrounding constitutional limits on federal power could/would have been different over the last 7 years had Raich come out differently. You make a good point about Commerce Clause doctrine, and all of this alternative history is a bit silly on all fronts because Comstock and a number of other notable commerce clause cases (e.g., felon in possession of body armor) have been in the SCOTUS mix between Raich and the ACA ruling.

Given that nobody expected Ms. Raich to win, and that she got 3 votes in SCOTUS, and that two over the justices in big the ACA dissent (Justices Kennedy and Scalia) turned out to be the swing votes, I remain drawn to the idea that the history of ACA which did play out would have been different if Kenney and Scalia had gone the other way in Raich.

Of course, if Kennedy and Scalia went the other way in Raich, folks on the LEFT might have embraced even more robustly states' rights during the last 3+ years of the Bush Administration. That development might have prompted different state/federal left/right politics prior to the 2008 election, which might have made Gov. Romney a better primary candidate than Sen. McCain and might have led to the pot legalization measure in California getting on the ballot in 2008 (when it would have had a better chance of passing), which might have then forced a newly elected Prez Romney in 2008 not to talk up the notion of states having authority to do stuff the feds should not do, and so on and so on...

Posted by: Doug B. | Jul 9, 2012 9:51:20 AM

Things also would have turned out far differently if Stephen A. Douglas had defeated Lincoln in the 1860 election.

Posted by: Marc Shepherd | Jul 9, 2012 10:01:51 AM

@Marc Shepherd +1

Doug, your points about the "culture" of federalism, while interesting, do not move the ball you want them to move. The ACA decision could not have been more explicit that the "culture" of federalism, EVEN WITH RAICH DECIDED AS IT WAS, was insufficent to stretch the Commerce Clause as far as the pro-ACA side wanted. The only thing that bailed out the ACA was Roberts's view of the taxing power. If anything in his discussion of that power refers directly or indirectly to Raich -- strictly a Commerce Clause case -- I missed it. Could you quote it?

If not, it seems to me that your take on this is interesting law lounge speculation, but not more than that.

(Not to say that I haven't done my share of law lounge speculation over the years).

Posted by: Bill Otis | Jul 9, 2012 10:25:56 AM

I was just about to post and saw Bill beat me to the punch -- he's exactly right. Raich was all about Commerce Clause. While the government certainly relied heavily on the Commerce Clause during their arguments to uphold ACA, as has been widely noted, Roberts hung his hat on the taxing power to uphold it as a proper exercise of federal authority.

So, while I'm just as down as the next liberal to stick it to the feds when it comes to the drug war, I feel that at minimum any critical argument should at least pass the straight-face test which this does not.

Posted by: Guy | Jul 9, 2012 12:13:59 PM

With respect to Raich and the Obamacare case, Republicans are philosophically inconsistent, supporting expansive federal government in the former and opposing expansive federal government in the latter. Their only consistency is political --- supporting Team Red. This position is exemplified by Republican cheerleaders like Bill Otis. It is not a principled position.

Many "liberal" Democrats are philosophically inconsistent on this point --- supporting limited federal government in Raich, while supporting expansive federal government in the Obamacare case. These Democrats are just as unprincipled as the Team Red, Fox News Channel Republicans. (Of course, the Democrats aren't as monolithic as the Republicans. There are many unsavory Dems. who provide full-throated support to the war on drugs, e.g., Barack Obama.)

Libertarians are consistent here --- opposing expansive federal government in both Raich and the Obamacare case.

Don't be Bill Otis, and don't be Barack Obama. Be a Libertarian.

Posted by: Calif. Capital Defense Counsel | Jul 9, 2012 12:18:00 PM

Doug B.: "...their swing votes in the 2005 Raich case would now seems to be against their legal/policy views that the federal drug war has now led to too many little cases being brought into federal court and being subject to federal punishments that are too extreme."

Well, a Justice's views of the wisdom of a statute as a matter of policy *should* be irrelevant to the question of whether it is constitutional. That principle may be "more honored in the breach than the observance," but it remains the ideal.

CCDC: "Of course, the Democrats aren't as monolithic as the Republicans."

Each side tends to perceive the other as more monolithic than it really is. The cracks are more apparent up close.

Posted by: Kent Scheidegger | Jul 9, 2012 1:03:25 PM

@Kent Scheidegger: I think there is some empirical evidence of more monolithic behavior on the Republican side. For instance, very close to 100 percent of Republicans in Congress signed Grover Norquist’s tax pledge. There is no issue commanding anything like that kind of unanimity on the Democratic side. I could name any number of issues (abortion, gun rights) on which a departure from the orthodoxy makes a Republican candidate categorically unelectable in most of the country.

Pro-life Democrats aren’t exactly numerous, but there are more of them than pro-choice Republicans. For instance, Pennsylvania has a pro-life Senator (Bob Casey), although the state has been blue for the last five presidential elections, and nine of the last thirteen. Try to name a comparable red state where a pro-choice Republican Senate candidate would have a prayer of getting elected.

And so on.

Posted by: Marc Shepherd | Jul 9, 2012 2:21:16 PM

CCDC --

"Of course, the Democrats aren't as monolithic as the Republicans."

Here's a sample of the Republican "monolith": Mitt Romney, Ron Paul, Michele Bachmann, Arnold Schwarzenegger, Mike Castle, Herman "9-9-9" Cain. Some monolith.

Posted by: Bill Otis | Jul 9, 2012 2:28:22 PM

Guy --

Bingo!

Posted by: Bill Otis | Jul 9, 2012 2:31:19 PM

Ron Paul is not a Republican. He is a Libertarian. See 2008 RNC Convention: Ron Paul was dis-invited. Moreover, see Ron Paul's voting record. (Ron Paul only calls himself a Republican to maintain electoral viability, because, to the discredit of the people of this country, one needs to be seen as being on Team Red or Team Blue to be electorally viable.)

Michele Bachmann is categorically insane.

Mitt Romeny is an empty suit, much like Barack Obama.

Hermann Cain does not know anything, including what his political ideology is, or what a political ideology is.

Bill Otis is the face of the Republican party --- supporting big government in the name of Republican causes, but opposing big government when it comes to non-Republican causes.

The point of this article is a point that Bill Otis can't get, because his political ideology gets in his way.

The Raich and Obamacare decisions are both about how expansive the reach of the federal government should be. They are both decided wrongly, because they both allow for expansive, unwieldy, intrusive federal government. One needs to get past the tired old Team Red vs. Team Blue mentality to see this. (Think how James Madison would have decided the Raich and Obamacare cases; it seems pretty clear that Madison, who saw limited government as the key to good government, would have decided that the federal government has exceeded its limited bounds, by a long way, in these cases.)

Posted by: Calif. Capital Defense Counsel | Jul 9, 2012 3:54:54 PM

Marc, I think that for many (though surely not all and perhaps not most) Republican members of Congress, signing the pledge is more a matter of politicians running scared of primary opposition funded by Norquist et al. than it is of actual agreement. Notice that soon-to-be-ex-Sen. Lugar is not on the list.

I can think of issues where I would expect as much uniformity among Democrats as there is actual agreement with the tax pledge among Republicans. How about repealing the preclearance requirement of the Voting Rights Act? How about abolishing "disparate impact" litigation?

Posted by: Kent Scheidegger | Jul 9, 2012 5:13:09 PM

CCDC --

Your first four paragraphs illustrate better than I could why your earlier statement that the Repubican Party is a monolith is baloney.

P.S. Once more, you don't get your own private language. Ron Paul most certainly IS a Republican. What party is he registered in? What party's Presidential nomination was he just seeking? What party's nomination did he seek and get in campaigning for his present seat in Congress?

To say that you can't be a libertarian and a Republican is like saying you can't be a socialist and a Democrat. Libertarians think the Republican Party buys too much into big government, but is the best deal they're going to get for right now. Likewise, socialists think the Democratic Party buys too much into capitalism, but is the best deal they're going to get right now. Both are frustrated, but both are correct.

CCDC, you might at some point try living with nuance and the uneasy realities of compromise politics rather than continuing with your fatuous and juvenile silliness about what I can't understand.

Posted by: Bill Otis | Jul 9, 2012 5:19:06 PM

@Kent Scheidegger: I sort-of see your point, although Section 5 of the VRA might not be a fair example: the most recent renewal passed the Senate 98-0. Perhaps some Members held their nose while doing so, but it’s just not a live issue with the general public. Is it in the news? Are candidates campaigning on its repeal? Is it regularly polled? Does the average person even realize what preclearance means? It’s not really akin to taxes and abortion, which have been live issues in every election for at least the past 40 years.

Posted by: Marc Shepherd | Jul 9, 2012 5:45:28 PM

It's wrapped up with voter ID, which is very much a live issue (see posts at the WaPo and C&C), but no need to belabor the point. Those were just the examples that came to mind because I had been writing about Texas v. Holder shortly before.

Posted by: Kent Scheidegger | Jul 9, 2012 6:03:47 PM

BTW, Marc, I decided to check the Gallup Poll on abortion, since your comment got me curious.

In a poll taken May 5-8, 2011, Gallup asked, "With respect to the abortion issue, would you consider yourself to be pro-choice or pro-life?"

Democrats split 68-27 while Republicans split 28-67. The divisions are equal in degree (but opposite in polarity) within the margin of error of the poll (+-4).

I think the example confirms my original point.

Posted by: Kent Scheidegger | Jul 9, 2012 6:24:51 PM

Ron Paul has not and will not endorse Mitt Romney. http://www.infowars.com/lew-rockwell-ron-paul-will-not-endorse-mitt-romney/

Here's a quote from Libertarian Ron Paul regarding Republican Bill Otis' idiotic war on drugs: "I think the federal war on drugs is a total failure. You can at least let sick people have marijuana because it's helpful, but compassionate conservatives say, well, we can't do this--the federal government's going in there and overriding state laws and putting people like that in prison. Why don't we handle the drugs like we handle alcohol? Alcohol is a deadly drug. The real deadly drugs are the prescription drugs. They kill a lot more people than the illegal drugs. The drug war is out of control. I fear the drug war because it undermines our civil liberties. It magnifies our problems on the borders. We spent, over the last 40 years, $1 trillion on this war. And believe me, the kids can still get the drugs. It just hasn't worked." http://www.issues2000.org/2012/Ron_Paul_Drugs.htm

Here's a quote from Libertarian Ron Paul regarding Republican Bill Otis' destructive support for American imperialism: "We're under great threat, because we occupy so many countries. We're in 130 countries. We have 900 bases around the world. We're going broke. The purpose of al Qaeda was to attack us, invite us over there, where they can target us. And they have been doing it. They have more attacks against us and the American interests per month than occurred in all the years before 9/11, but we're there occupying their land. And if we think that we can do that and not have retaliation, we're kidding ourselves. We have to be honest with ourselves. What would we do if another country, say, China, did to us what we do to all those countries over there? So I would say a foreign policy that takes care of our national defense, that we're willing to get along with people and trade with people, as the founders advised, there's no authority in the Constitution to be the policeman of the world, and no nation-building." http://www.issues2000.org/2012/Ron_Paul_War_+_Peace.htm

Libertarian Ron Paul would abolish the IRS and income tax. Republican Bill Otis needs and wants the IRS and the income tax to support his big government Republican programs.

Republican Bill Otis was in the audience "booing" Libertarian Ron Paul in the primary debates when Ron Paul was making libertarian points.

Do I need to go on Bill?

You and Ron Paul do NOT belong to the same political party. Ron Paul is NOT a Republican, regardless of registration.

You are an uber-statist. Ron Paul is the opposite.

Posted by: Calif. Capital Defense Counsel | Jul 9, 2012 6:47:59 PM

CCDC --

My nephew is for Ron Paul too. His excuse is that he's 19. What's yours?

I will, however, tell my Democratic friends that I'm an "uber-statist." At which point they will think that I am, for the first time, stoned.

Libertarians have some appealing principles, and in many ways I wish the world they envision were possible; certainly the government we have now is grossly too big, too expensive, too controlling and too indebted.

In some other ways, libertarians are just flat-out nuts.

P.S. I was at one time a big Ayn Rand fan. That was when I was in eighth grade.

Posted by: Bill Otis | Jul 9, 2012 7:55:45 PM

Gosh Golly Bill -

You're so mature.

You're also pretty "skilled" at avoiding points and dangling shiny objects.

Have fun in your thoroughly repugnant Republican party; it's a good fit for you.

You advocate execution of 16-year-olds, right?

You need to re-calibrate your brain, if possible.

Posted by: Calif. Capital Defense Counsel | Jul 9, 2012 8:29:51 PM

I love Bill Otis v. CCDC cat fights.

Posted by: SashokJD | Jul 9, 2012 8:45:14 PM

@CCDC: Bill Otis is a principled conservative. He is someone you can do business with. I probably disagree with him more often than not, but he is coming from a set of coherent views that make sense, even when I think they are wrong. And I do give him credit (for which fact he frequently reminds us) that he posts under his real name.

Perhaps I am just romanticizing the past, but I recall an era when moderates of both parties frequently worked together to find common ground. Sadly, we are now in an era in which both sides, most of the time, grossly caricature the other. It is not a useful approach. I feel like I am one of the few people here who actually agrees with Bill sometimes, but not others; why, for most people, must it be an all-or-nothing proposition?

Posted by: Marc Shepherd | Jul 9, 2012 9:26:38 PM

Ron Paul is the candidate of StormFront because he will end the state of Israel for them if elected.

And he accepts it.

http://www.nytimes.com/2011/12/26/us/politics/ron-paul-disowns-extremists-views-but-doesnt-disavow-the-support.html?pagewanted=all

Posted by: Supremacy Claus | Jul 9, 2012 10:14:30 PM

Bill: Government is a tool, like any other. It just does nothing well because its real aim is lawyer rent seeking. Exclude the lawyer from all benches, legislative seats, and responsible policy positions in the executive. They are the Mafia in control of the three branches of government, bleeding the enterprise until it goes out of business, then burn it down for the insurance money. This criminal syndicate method was covered in Goodfellas. China is too stupid to see they are the insurer of the coming arson.

Arrest the hierarchy. Try them for an hour. Execute them on the spot. They are a criminal syndicate and internal traitors.

Have technical people run government, and watch. No more crime, after the lawyer protected client is also eradicated. 10% Economic growth. 20% of GDP into research and development instead of into paper shuffling. Name a social problem. Gone.

For the lawyer? A profession half the current size. Highly effective, once it gives up its supernatural, fictitious central doctrines, and embraces empiricism. Quadruple the income, quadruple the productivity, and public esteem 10 times what it is today, instead of intense hatred. Everyone hates the lawyer, including most lawyers, oppressed even more than the public by this hierarchy. Why the hatred? Because they are the Inquisition and a criminal syndicate in charge of the three branches of government.

If the hierarchy regrows, repeat every 10 years. Zero tolerance for the lawyer hierarchy.

Posted by: Supremacy Claus | Jul 9, 2012 10:26:21 PM

When CCDC loses the protection of the lawyer hierarchy, he will be teaching history in high school. No more death penalty appeals. Why? Because all clients will be gone before age 18, deceased and committing no more violent crime.

Posted by: Supremacy Claus | Jul 9, 2012 10:30:22 PM

Marc Shepherd: Bill Otis is a big supporter of the drug war and the death penalty. How is it possible to respect or tolerate those immoral positions? Sorry, he does not deserve to be treated with respect.

Posted by: Vince Wright | Jul 9, 2012 11:22:47 PM

Marc --

Thank you.

Vince Wright --

"Bill Otis is a big supporter of the drug war and the death penalty. How is it possible to respect or tolerate those immoral positions? Sorry, he does not deserve to be treated with respect."

My position on the death penalty is supported by the great majority of the American people; so far as is known, by every sitting member of the Supreme Court; and by every President of the United States, including the incumbent.

So they also deserve to be treated with contempt?

My position against legalizing the recreational use of marijuana is supported by at least half of the American people, http://www.pollingreport.com/drugs.htm. My position on the harder drugs like meth and heroin is supported by such a huge majority that the question isn't even polled.

So they all deserve to be treated with contempt?

The majority of commenters on this board do not agree with me on these and a host of other subjects, but manage to get along with me in ways ranging from quite friendly to reasonably businesslike. Do you think they might know something about adult manners that you could consider learning?

Posted by: Bill Otis | Jul 9, 2012 11:46:58 PM

My thoughts are generally that we should try (try being the keyword) to treat everyone with respect, regardless of our difference or ideological divides. That's hard to in real life, much less on the internet where we can fire off vitriol with little to no consequences (or, at least not the same consequences that one would face in real life). I fail at it with a fair amount of regularity, but for me at least, it's something that I recognize as a goal. Otherwise, everyone just gets upset and starts tossing bombs at each other and nothing really gets discussed productively.

But that's just my .02.

Posted by: Guy | Jul 10, 2012 12:35:00 AM

Compare the Fifth Circuit's ruling found at How Appealing (but overshadowed by the healthcare decision). What is most enlighting is the twists and turns the government tries to manipulate the court into accepting.

"The Department of Justice cannot find a single authority * * * for the proposition that it can reassert jurisdiction over someone it had long ago unconditionally released from custody just because he once committed a federal crime." The en banc U.S. Court of Appeals for the Fifth Circuit today issued a ruling, by a vote of 10-to-6, that declared unconstitutional one aspect of the federal sex offender registration requirement imposed under the federal law known as the Sex Offender Registration and Notification Act.

Circuit Judge Jerry E. Smith wrote the majority opinion, which observes that "After the federal government has unconditionally let a person free, however, the fact that he once committed a crime is not a jurisdictional basis for subsequent regulation and possible criminal prosecution." The majority opinion also includes a very interesting evaluation and rejection of the federal government's Commerce Clause justification for the particular registration requirement at issue.

Today's en banc Fifth Circuit ruling may not be the final word on this controversy. Because the appellate court has partially invalidated a federal law, the likelihood of U.S. Supreme Court review would seem high should the Solicitor General's Office file a petition for writ of certiorari.
Posted at 10:44 PM by Howard Bashman

Posted by: Winston Smith | Jul 10, 2012 3:29:59 AM

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