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June 06, 2005

I Guess Nino Scalia Really Wants to Be Chief Justice

I must confess that I am surprised at how shallow Scalia's commitment to federalism is when push comes to shove:

Justices Say U.S. May Prohibit the Use of Medical Marijuana: Justice Scalia, by contrast, explained himself at length. He did not sign the majority opinion, instead offering a separate concurring opinion that was no less definite in its support for federal authority. 'Where necessary to make a regulation of interstate commerce effective, Congress may regulate even those intrastate activities that do not themselves substantially affect interstate commerce,' Justice Scalia said. He cited opinions from the early 1940's, after the Supreme Court rallied to support the New Deal and gave Congress a degree of power over national affairs that was not seriously challenged until the Rehnquist Court began invalidating federal laws in the mid-1990's.... As a prime mover of the court's federalism revolution, Justice O'Connor did not hide her dismay. The court's opinion provided a roadmap to 'removing meaningful limits on the Commerce Clause' and 'threatens to sweep all of productive human activity into federal regulatory reach,' she said....

The sharpest dispute was over the meaning of two of the core decisions of the Rehnquist Court's approach to federalism. Both struck down federal laws, the Gun-Free School Zones Act and the Violence Against Women Act, on the ground that they exceeded Congressional authority, and both were decided by five-member majorities that included Justices Kennedy and Scalia. While Justice O'Connor declared that the marijuana decision was 'irreconcilable' with the earlier ones, Justice Scalia disagreed. Neither of the earlier decisions 'involved the power of Congress to exert control over intrastate activities in connection with a more comprehensive scheme of regulation' comparable to federal drug laws, he said...

Posted by DeLong at June 6, 2005 09:12 PM