In Gonzales v. Carhart, Justice Thomas, joined by Justice Scalia, noted that because the parties did not preserve a challenge to the Partial-Birth Abortion Ban’s constitutionality under commerce clause grounds, he would not consider that issue:
I also note that whether the Act constitutes a permissible exercise of Congress’ power under the Commerce Clause is not before the Court. The parties did not raise or brief that issue; it is outside the question presented; and the lower courts did not address it. See Cutter v.Wilkinson, 544 U. S. 709 , n. 2 (2005) (Thomas, J., concurring).
In America Trucking v. Los Angeles, Thomas issued a similar concurring opinion:
But it is doubtful whether Congress has the power to decide where a drayage truck should park once it has left the port or what kind of placard the truck should display while offsite. Even under the “substantial effects” test, which I have rejected as a “‘rootless and malleable standard’ at odds with the constitutional design,” Gonzales v. Raich, 545 U. S. 1, 67 (dissenting opinion) (quoting United States v. Morrison, 529 U. S. 598, 627 (2000) (THOMAS, J., concurring)), it is difficult to say that placards and parking arrangements substantially af- fect interstate commerce. Congress made no findings indicating that offsite parking—conduct that falls within the scope of the States’ traditional police powers— substantially affects interstate commerce. And I doubt that it could. Nevertheless, because respondents did not preserve a constitutional challenge to the FAAAA and because I agree that the provisions in question have the “force and effect of law,” I join the Court’s opinion.
Note to litigants. ALWAYS raise a commerce clause challenge. Just in case.
Sorry for the light blogging. I have been travelling the entire week, and am just now getting to this week’s opinions.
H/T Ilya Shapiro
Update: And I see that Ilya has now blogged this point as well.