The Problem of Severability in Raich
Randy Barnett was here last night talking about the case, and discussed what he says he was forced to concede in order to survive oral arguments. He expected to be questioned by the justices on the slippery slope argument that if the government can't regulate the medical marijuana use, the Court will have to allow many other uses--"the parade of horribles"--that would be similarly unconstitutional exercises of power. This, he assumed, would be fatal to his case.
What he conceded was a sort of exception from dicta in Morrison that if the suspect application of a statute were "necessary" to the greater regulatory scheme, it could be upheld even if it, by itself, was an unconstitutional enactment under the commerce clause. Thus, since Congress could pass an "interstate controlled substances act" and the regulation of at least some intrastate drugs is necessary to achieve the broader purposes of the interstate drug regulation, the necessary intrastate applications are valid. This would allow the justices to sever off the medical marijuana application but still validate regulating other applications.
It seems there are two ways of thinking about this: first, in terms of severability, and second in terms of McCulloch.
The presumption in severability analysis is Yazoo. There, a statute was passed that lead to some constitutional and some unconstitutional applications. A facial attack, which would require that the statute be capable of no constitutional application at all (see Sabri; Scalia in Morales), didn't work, and overbreadth is only allowed in the first amendment (but see Michael C. Dorf, Facial Challenges to State and Federal Statutes, 46 Stan. L. Rev. 235). Yazoo stands for the proposition that when a statute violates the "valid rule requirement," it is severed off from the otherwise-valid statute, and the statute remains in tact on the books.
I don't understand, then, why all intrastate, non-economic drug use shouldn't just be severed from the statute, leaving the interstate uses on the books. Interstate use would be the federal government's business to regulate, and intrastate use would be up to the states.
I guess my concern is that although Professor Barnett is right that the activity at issue shouldn't be reachable under the commerce clause, why does he need to excuse other intrastate, noneconomic activity?
The answer, it seems, is McCulloch--that somehow the regulation of intrastate, noneconomic activity is "necessary and proper" to the regulation of interstate commerce.
This, to me, proves too much in a context where Congress is not really regulating commerce, but is using the police power, justified by the commercial nature of what it is policing. It seems that this would give Congress power to regulate virtually all crime, since intrastate crime is always going to have an effect on interstate crime such that the regulation of the intrastate crime is necessary to effective interstate regulation.
T. More suggested the other night what he calls the "straight face" test--that Congress must be able to tell you with a straight face that it is really regulating commerce. While I think this is a lost cause for the commerce power generally, I think it should at least govern what Congress is able to reach with McCulloch.