Eminent Domain

I know I promised to review Brown v Sanders and Volvo Trucks North America, Inc, v Reeder-Simco GMC, Inc. (and I will, they're on my to-do stack), but I want to comment first on the recently handed down opinion for Gonzales v Oregon. This is a 6-3 decision holding that the federal government does not have the power to regulate drugs used in physician assisted suicides. Justice Kennedy wrote the majority opinion, further cementing his new role as the Court swing vote once Justice O'Connor departs. He was joined by O'Connor and the four liberals. Chief Justice Roberts, Justice Scalia, and Justice Thomas all dissented. For those of you playing along at home, Chief Justice Roberts and Justice Scalia have voted the same way on every case so far this term. Thomas went the other way once (in Volvo).

The opinions deal with issues of federalism, statutory interpretation, and stare decisis. Justice Thomas' dissent rips the majority who (all but O'Connor) were also the majority in Gonazles v Raich, the medical marijuana case. In Raich, the Court said that the federal government could regulate the purely intrastate use of medical marijuana. Thomas dissented in that case. In his dissent today, he calls the majority out for not following their own precedent in Raich. Regulate intrastate use of morphine, no. Regulate intrastate use of marijuana, yes. Interesting. Thomas seems to enjoy a finger-wagging dissent as much as Scalia does (Ex. Stenberg).

Prof. Althouse has some comments about federalism and statutory interpretation...

But there is some reason to see statutory interpretation and constitutional law as different when it comes to the division of power between the states and the federal government. You might want to interpret statutes narrowly to preserve room for the states to pursue their individual policies but still not want to say that Congress lacks the power to intrude with uniform law if it sees good enough reason to do so. Demanding that Congress pass more explicit statutes in order to blot out state experimentation in areas of traditional regulation is not inconsistent with the belief that Congress ultimately does have that power. This is a moderate approach to federalism that appreciates that uniform law may be necessary, but still values decentralized lawmaking.

I certainly see the point, but is it right? Should the federal government get that much leeway? I'm not thrilled with the idea of letting Congress hang back, say "Do what you want, states. But we reserve the right to jump in at any point that we see uniform regs as necessary." Personally, I would rather have clearer lines of state and federal powers.

The Chief did not write a separate opinion here, so it's hard to really discern what his thoughts are on the subject. Sure, you can make inferences from Scalia's dissent, but honestly a Scalia dissent is usually all Scalia. Scalia went the statutory interpretation route, focusing on defining "legitimate medical purpose" in the Controlled Substances Act. Statutory interpretation drives me nuts, so I'm not saying another word about it.

Here's a link to the opinion and here is one to a transcript of the oral argument. Read it and see why Solicitor General Clement has the most fun job in the world. His job is a lot like being on call in a law school class.

I have to think about this case a little more. These are just my preliminary thoughts. I'm inclined to agree with Justice Thomas, mostly because of his point about Raich (which I think was wrongly decided). I'll think about it.

EDIT: I need to read this again closely. After going over it again (quickly again), I think this is much more statutory interpretation than federalism. This 12 hour school day is not helping my critical thinking skills right now...

EDIT 2: To hell with this case. Someone figure it out and post a big comment.

EDIT 3: I can't stay away. Just one quick point. I now think that this case is basically an administrative law issue. Since admin law is probably the most complicated area of law, I'm not even going to touch this case anymore.