Michael Waterstone in a post about a Supreme Court case that I really don’t know anything about one way or another writes about Justice Scalia’s concurrence in the judgment in said case:
But to Justice Scalia, this means that (except for race discrimination, which he views as different for stare decisis reasons), he would limit Congress’s Section 5 power to conduct that itself violates the Fourteenth Amendment. I find this flat out wrong. As a textual matter, Section 5 gives Congress the power to enforce the Fourteenth Amendment by appropriate legislation. If all Congress can do is outlaw that which is already unconstitutional, what is the point?
It would seem to me (at least) that the major point of the 14th Amendment was to confer to Congress and the federal government more broadly the power to enforce, upon the states, at least some of the guarantees embodied in the Constitution that had previously been held under Barron v. Baltimore (1833) not to be so-enforceable, in essence to expand Congress’ enumerated powers to encompass enforcement of the amendment itself (which it would not have, absent the Supreme Court reinterpreting Article I of the Constitution to imply Congress has some sort of power to do things that aren’t listed there and not necessary or proper to do the things listed there).
Perhaps viewed through a modern lens where the judiciary routinely has the backing of the executive and legislative branches to overrule the decisions of state governments, such a power seems rather trivial, but in the context of the 1860s when state laws were rarely challenged by the federal government (and when the scope and powers of the federal government were interpreted so narrowly as to rarely infringe on what the states wanted to do) I think explicitly stating Congress had such a power to enforce a new provision of the Constitution, particularly since the 14th Amendment was only the second (after the 13th) to expand the powers of the federal government at the expense of the states (again, given that the Bill of Rights was generally seen at the time as to only apply to the national government, and that the 11th Amendment had actually reduced the powers of the federal government), is hardly meaningless or self-evident.
The folks at Reason have been keeping a rather keen eye on the escalation of the Obama administration’s war on medical marijuana; the latest salvo is apparently going to involve aggressive prosecutions of those advertising dispensaries, along with targeting landlords and other property owners whose tenants are dispensing pot, regardless of state licensing. Considering that the average Democrat supports legalizing pot outright,* and polls show even wider support for medical marijuana, the administration’s increasingly anti-pot position seems a bit inexplicable on the surface. However, I do think there are two potential explanations for this seemingly-conservative shift on the issue:
- Presidential politics: Most of the medical marijuana facilities are in California, a state that Obama has virtually no chance of losing in 2012. The policy is actually designed to shore up Obama’s support in swing states, where medical marijuana is not legal and the administration’s policy can be spun as “tough on drugs and crime.”
- Assertion of national authority against nullification more broadly: Although one would think that the Supreme Court’s decision in Gonzales v. Raich, which (contrary to a line of Supreme Court cases leading to that point) found that non-commercial, intrastate activity, such as marijuana use, could be regulated under the commerce power, had settled the power of the national government to continue to regulate marijuana as a controlled substance, the behavior of the states that adopted medical marijuana laws has effectively advanced the doctrine of nullification, albeit this time from the left rather than its traditional home on the right. By cracking down on medical marijuana, the Obama administration is signalling that other nullification efforts, such as state laws against participation in ObamaCare and REAL ID, along with other efforts by states to make end-runs around federal policies, will be dealt with in a similar fashion.
The latter explanation, in particular, would explain the rather vehement reaction of the administration over the past couple of years to medical marijuana as other state-level efforts to nullify or crowd out federal policymaking prerogatives have emerged. But I’m certainly open to entertaining other theories.
* According to the 2010 General Social Survey, 52.0% of Democrats and Democrat-leaners supported legalization of marijuana (margin of error: ±4.0%).
Cross-posted at OTB