Cert Granted in Raich v. Ashcroft

[Lawrence Solum]

I think that Earl Maltz may be mistaken about the actual regulation
that was upheld in Wickard.  The opinion states:

The Act includes a definition of 'market' and its derivatives so that
as related to wheat in addition to its conventional meaning it also
means to dispose of 'by feeding (in any form) to poultry or livestock
which, or the products of which, are sold, bartered, or exchanged, or
to be so disposed of.' Hence, marketing quotas not only embrace all
that may be sold without penalty but also what may be consumed on the
premises. Wheat produced on excess acreage is designated as 'available
for marketing' as so defined and the penalty is imposed thereon.

I just reread the opinion looking for language to the effect that "the
growing  of wheat was part of a class of activities that was economic
in nature" and could find none.  Indeed, the word "class" is not used
in the Opinion (or at least, so Westlaw reports).

Of course, I entirely agree that the meaning of Wickard is subject to
dispute.  My point was simply that the relevant question reaches
beyond Wickard to Morrison and Lopez--a very modest point with which I
am sure Earl Maltz would agree.

Larry

On Mon, 28 Jun 2004 14:52:57 -0400, earl maltz
<emaltz at camden.rutgers.edu> wrote:
> 
> The fact that the case of a home garden was not specifically before the
> Court is irrelevant.  The opinion argued that, because the growing  of
> wheat was part of a class of activities that was economic in nature,
> Congress had the authority to regulate all wheat growing.  This holding is
> entirely consistent with the general view that Congress only has authority
> to regulate matters that are part of the class of economic activity.
> 
> On further reflection, it seems to me that the Ninth Circuit decision is
> also inconsistent with Darby.  Since Congress could prohibit the shipment
> of drugs for sale in interstate commerce, it can prohibit production as a
> reasonable means of preventing shipment.
> 
> 
> At 10:17 AM 6/28/2004 -0700, you wrote:
> >The question isn't really whether Wickard depended on the distinction.
> > After all, the question of whether the Wickard holding would apply if
> >the regulated activity had been a home garden was not before the
> >court.  Isn't the question whether the New Federalism cases, Morrison
> >& Lopez, do rely on the distinction between economic & noneconomic
> >activity.
> >
> >Re Paul Finkelman's point.  I think Paul is right--there is a chance
> >the Court will simply treat drugs as different.  An interesting
> >question is how they would try to do that doctrinally.  They might
> >distinguish markets in illegal things (like drugs, child pornography)
> >from other markets.  If the Court doesn't come up with a distinction
> >of some sort, then the opinion will certainly cast doubt on the New
> >Federalism cases, whether those who join the opinion intend that
> >result or note.
> >
> >On Mon, 28 Jun 2004 12:45:42 -0400, Earl Maltz
> ><emaltz at camden.rutgers.edu> wrote:
> >>
> >> Certainly, as a factual matter the situations are different.  However, I
> >> don't think that the reasoning of the Wickard Court depended upon this
> >> distinction.
> >>
> >>
> >> At 11:17 AM 6/28/2004 -0400, Randy Barnett wrote:
> >> >Earl is right.  Filburn was a commercial farmer.  However, someone with
> >> >a home garden in her back yard is not.  In addition, the statute in
> >> >Wickard exempted even commercial farms that were smaller than Filburn's,
> >> >but still much larger than a back yard garden solely for home
> >> >consumption.  A ruling for the government in Raich would represent a
> >> >very serious, indeed a landmark, expansion of the ruling in Wickard--and
> >> >a rejection of the principles announced in Lopez and reaffirmed in
> >> >Morrison.
> >> >
> >> >_____________________________________________
> >> >Randy E. Barnett
> >> >Austin B. Fletcher Professor
> >> >Boston University School of Law
> >> >765 Commonwealth Ave.
> >> >Boston, MA  02215
> >> >617-353-3099 (phone)
> >> >617-353-3077 (fax)
> >> >http://www.RandyBarnett.com
> >> >http://www.LysanderSpooner.org (Lysander Spooner page)
> >> >http://pup.princeton.edu/titles/7648.html (Restoring the Lost
> >> >Constitution page)
> >> >http://www.RandyBarnett.com/SOL.htm (Structure of Liberty page)
> >>
> >> _______________________________________________
> >> To post, send message to Conlawprof at lists.ucla.edu
> >> To subscribe, unsubscribe, change options, or get password, see
> http://lists.ucla.edu/cgi-bin/mailman/listinfo/conlawprof
> >>
> >
> >
> >
> >
> >--
> >Lawrence Solum
> >University of San Diego School of Law
> >lsolum at sandiego.edu
> >
> >
> 




-- 
Lawrence Solum
University of San Diego School of Law
lsolum at sandiego.edu