A couple of thoughts to follow Rick's and Rob's comments on subsidiarity and the medical marijuana decision:
1. When I teach federalism to Constitutional Law students, I also have them read materials on subsidiarity (including excerpts from Rob's terrific "Subsidiarity as a Princple of Governance," posted over on the right). But I emphasize, like Rick did in his post, that the contours of congressional power and the principles of subsidiarity are two different things. Whether a given action comports with subsidiarity turns in significant part on the policy wisdom or necessity of the action -- in particular, whether the issue requires a higher-level as opposed to local solution. By contrast, the constitutional question -- as Raich reaffirms -- is "not whether it is wise to enforce the statute in these circumstances; rather, it is whether Congress' power to regulate interstate market[s] . . . encompasses the portions of those markets that are . . . produced and consumed locally." That's from the Raich majority opinion, page 6. Power, not wisdom, is the constitutional question; Congress can have power even if it overreaches or acts unwisely. The courts' general reluctance, or impotence, to judge the wisdom of statutes may also make them reluctant or impotent to do much with notions of subsidiarity.
2. Well, let's qualify that. Actually there might be a significant overlap between subsidiarity and the kind of commerce-power inquiry involved in a case like Raich, where the issue is -- or can be seen as -- whether local activity (home growing medical marijuana) will have effects outside the locality (effects on the supply and price of illicit marijuana in national markets). When there is such an effect, then subsidiarity probably will allow the higher-level regulation -- on the ground that localities alone can't address the issue because each will be frustrated by the effects coming in from other localities. And constitutional doctrine will also allow federal regulation, under the theory of "aggregating local activities" bolstered by the power of Congress to make laws "necessary and proper" (Art. I, section 8, cl. 18) to the execution of its other powers such as regulating interstate commerce. So maybe subsidiarity and constitutional federalism do parallel each other, at least when the issue colorably involves "commerce" and thus Congress's commerce-regulating power.
Except that there remains a question of how confident we have to be about such a cross-locality (i.e. interstate) effect in order to justify higher-level (congressional) regulation. Here's what Raich says about that (majotity opinion, page 19):
In assessing the scope of Congress's authority under the Commerce Clause, we stress that the task before us is a modest one. We need not determine whether respondents' activities, taken in the aggregate, substantially affect interstate commerce in fact, but only whether a rational basis exists for so concluding.
In other words, judicial deference and "modest[y]" apply not only to the policy wisdom of the statute in general, but to the question whether local activities (aggregated as a class if need be) will have an interstate effect (i.e. on interstate commerce). Can such a deferential approach to that question be squared with subsidiarity? I would have thought that before local regulation is superseded, subsidiarity would require some level of proof that local activities will have interstate effects -- not just that it be "rational" to think that such effects will occur.
The precise standard may not matter in Raich, because both the majority and Justice Scalia (concurring) argue that it's not just plausible, but very likely, that home-grown medical marijuana, as a "fungible" commodity, will seep into the national, interstate market. On the other hand, Justices O'Connor and Thomas, in dissent, argue that these effects hadn't been proven: Thomas, for example, says that there's been no showing "that California’s controls [on non-medical uses or disposition of medically prescribed marijuana] are ineffective." So the difference between "a rational basis for expecting an interstate effect" and "proof of a likely interstate effect" may be important to the case -- and to other Commerce Power cases as well.
Tom B.
Tomorrow the Florida Supreme Court hears oral arguments in Bush v. Holmes, which involves the state's program of "Opportunity Scholarships" for students in failing public schools -- providing them scholarships to use at their choice of qualified private schools, secular or religious, or nearby public schools. Lower courts struck down the program on the ground that including religious schools in it violated the so-called "Blaine Amendment" provision in Florida's Constitution. The full set of briefs filed in the case (actually three consolidated cases) are here in PDF format (look for docket numbers SC04-2323, SC04-2324, and SC04-2325; most of the briefs overlap all three cases). The Institute for Justice, a leader in defending school choice in constitutional litigation, has copies of briefs and comments on the case here. Full disclosure: co-blogger Rick Garnett and I filed an amicus brief (also available here) defending the Florida program, arguing that excluding otherwise qualified schools from a choice program simply because they are religious or "sectarian" would violate the First Amendment to the U.S. Constitution. This is an important case for the principles of (1) parental control over education and (2) governmental neutrality and fairness toward religion.
Tom B.
