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January 10, 2011
Notable lengthy dissent about Commerce Clause after denial of cert in criminal case
As detailed in this new post by Lyle Denniston at SCOTUSblog, two Justices "in a dissent that may reveal a new division in the Court over Congress’s power to pass legislation under the Commerce Clause, on Monday accused the Court majority of silently accepting 'the nullification' of the Court’s recent rulings on that power." Astute Court watchers will surely not be surprised to learn that it is Justices Scalia and Thomas who lodge this dissent.
Justice Thomas is the one who took pen to paper in this eight-page dissent in Alderman v. US, a case in which the defendant challenged a federal law which makes it a crime for a convicted felon to possess a bulletproof vest or other body armor that had traveled across state lines. Justice Thomas's dissent begins and ends with these paragraphs:
Today the Court tacitly accepts the nullification of our recent Commerce Clause jurisprudence. Joining otherCircuits, the Court of Appeals for the Ninth Circuit has decided that an “implic[it] assum[ption]” of constitutionality in a 33-year old statutory interpretation opinion“carve[s] out” a separate constitutional place for statuteslike the one in this case and pre-empts a “careful parsing of post-Lopez case law.” 565 F. 3d 641, 645, 647, 648 (2009) (citing Scarborough v. United States, 431 U. S. 563 (1977)). That logic threatens the proper limits on Congress’ commerce power and may allow Congress to exercise police powers that our Constitution reserves to the States. I would grant certiorari....Fifteen years ago in Lopez, we took a significant steptoward reaffirming this Court’s commitment to properconstitutional limits on Congress’ commerce power. If the Lopez framework is to have any ongoing vitality, it is up tothis Court to prevent it from being undermined by a 1977 precedent that does not squarely address the constitutional issue. Lower courts have recognized this problem and asked us to grant certiorari. I would do so.
January 10, 2011 at 02:30 PM | Permalink
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Comments
I think it's also noteworthy that the Court took EIGHT conferences to deny cert in this case. Is it cynical of my to think that, at minimum, Alito probably agrees with Thomas and Scalia's view of the Commerce Clause, yet can't bring himself away from his pro-government bias/results-orientedness in criminal cases to say so in this case?
Posted by: DEJ | Jan 10, 2011 3:02:03 PM
Cynical? Yes. Also probably correct? Yes.
Posted by: law1 | Jan 10, 2011 5:50:36 PM
This case is really an early salvo in the coming case over Obama's health plan. After two decades of contradictory commerce clause jurisprudence – shifts back and forth between the firmly established New Deal case law and the mercurial federalism of Rhenquist years – Scalia and Thomas are trying to create some bare-bones legitimacy for an otherwise lawless attack on health care.
Posted by: dm | Jan 10, 2011 9:46:22 PM
"That logic threatens the proper limits on Congress’ commerce power and may allow Congress to exercise police powers that our Constitution reserves to the States."
Proper limits? Wasn't aware there were any limits at all. Might as well call it the National Police Force Clause.
This is funny. Wonder if Thomas wrote it with a straight face.
Posted by: John K | Jan 11, 2011 9:10:03 AM
i think the whole argument is pretty stupid myself!
"Justice Thomas is the one who took pen to paper in this eight-page dissent in Alderman v. US, a case in which the defendant challenged a federal law which makes it a crime for a convicted felon to possess a bulletproof vest or other body armor that had traveled across state lines. Justice Thomas's dissent begins and ends with these paragraphs:"
Based on the above statement the vest would have been LEGAL if he'd made it himself or bought it from a local manufactuer...so ex cons who live in state where they MAKE EM can legally have one but nobody else? sorry that's NOT LEGAL under our constution.... it's either legal or it's not!
Posted by: rodsmith | Jan 11, 2011 11:41:57 AM
rodsmith the idea is "interstate" commerce. So, yes, if a something is totally intra-state, the feds might not have the ability to ban it. That's the point.
Looking at the 9CA case, it discusses Lopez and related cases, noting why the current law does not violate them. Thus, "the nullification" of such doctrine does not seem present. The case involves "the sale of body armor in interstate commerce" ... the item was already purchased. It is not quite the same thing as a tax or penalty for not buying something etc. So, it is a bit of a stretch to raise the health law, though that's a common trope.
Posted by: Joe | Jan 11, 2011 7:38:10 PM
you missed the point joe! under our constitution we're all supposed to be the same and treated the same. If it's dangerous for so-called ex cons to have body armor...THEN IT'S DANGEROUS EVERYWHERE.... cant' have it both ways. plus under that document treating people diff in diff locations is illegal...was one of the reasons the civil rights laws were passed! This is the same thing. you now have a law that is only applied to some people depending on WHERE they buy their items! sorry that's a no-no.
i won't even get started on the criminal and idiotic use of trying to use a "commerce clause" hook on law that has not a damn thing with commerce.
Posted by: rodsmith | Jan 11, 2011 10:25:21 PM
