Josh Blackman » Thomas on the Commerce Clause- “Today the Court tacitly accepts the nullification of our recent Commerce Clause jurisprudence.”

Thomas on the Commerce Clause- “Today the Court tacitly accepts the nullification of our recent Commerce Clause jurisprudence.”

January 10th, 2011

So begins Justice Thomas with his dissent from denial of cert in Alderman v. United States. Here is the first paragraph of the dissent:

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 constitutional-ity 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 Con-gress’ commerce power and may allow Congress to exer-cise police powers that our Constitution reserves to the States. I would grant certiorari.

Scalia joins the opinion, other than footnote 2, which reads:

2I adhere to my previously stated views on the proper scope of theCommerce Clause. See United States v. Lopez, 514 U. S. 549, 585 (1995) (concurring opinion); United States v. Morrison, 529 U. S. 598, 627 (2000) (same); Gonzales v. Raich, 545 U. S. 1, 57 (2005) (dissenting opinion).

I will have more thoughts on this as I read the case, but this may have some interesting commerce clause implications for certain constitutional challenges. In particular, only Thomas, and Scalia in part joined. Roberts and Alito were nowhere to be found.

Update: Thomas would have granted cert on this case, in which the 9th Circuit applied Scarborough, a pre-Lopez precedent, to consider the constitutionality of a 18 U.S.C 931(a), a ban on possession of body armor for felons.

Recognizing the conflict between Lopez and their inter-pretation of Scarborough, the lower courts have cried out for guidance from this Court. See 565 F. 3d, at 643 (“[A]bsent the Supreme Court or our en banc court tellingus otherwise . . . the felon-in-possession of body armor statute passes muster”); Patton, supra, at 636 (“We sus-pect the Supreme Court will revisit this issue in an appro-priate case—maybe even this one”). This Court has a dutyto defend the integrity of its precedents, and we should grant certiorari to affirm that Lopez provides the properframework for a Commerce Clause analysis of this type.FOOTNOTE 2 (see above)

Further, the lower courts’ reading of Scarborough, by trumping the Lopez framework, could very well remove any limit on the commerce power. The Ninth Circuit’s interpretation of Scarborough seems to permit Congress to regulate or ban possession of any item that has ever been offered for sale or crossed state lines. Congress arguablycould outlaw “the theft of a Hershey kiss from a corner store in Youngstown, Ohio, by a neighborhood juvenile onthe basis that the candy once traveled . . . to the store from Hershey, Pennsylvania.” United States v. Bishop, 66 F. 3d 569, 596 (CA3 1995) (Becker, J., concurring in part and dissenting in part). The Government actually conceded atoral argument in the Ninth Circuit that Congress could ban possession of french fries that have been offered for sale in interstate commerce.

Illegal french fries? Sounds like something in NYC or San Francisco, or perhaps on the Washington, D.C. Metro (cough cough CJ Roberts).

Here is how Thomas closes:

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 1977precedent that does not squarely address the constitu-tional issue. Lower courts have recognized this problem and asked us to grant certiorari. I would do so.

I repeat my initial reactions. The fact that neither Roberts, who joined Comstock, nor Alito joined this opinion is somewhat troubling. You only need 4 votes for cert. Then again, perhaps they didn’t want to show their hands? Interesting development.