Philip Hamburger on “The Importance of Granting Cert in Canna Provisions v. Bondi”

Columbia law Prof. Philip Hamburger – one of the nation’s leading constitutional law and administrative law scholars – saw my post urging the Supreme Court to consider the case of Canna Provisions, Inc. v. Bondi  and use it to overrule Gonzales v. Raich (2005). He asked if I could post his own piece outlining additional reasons why the Court should take this case. I am happy to oblige! The material that follows is by Philip Hamburger, not me (Ilya Somin):

The Supreme Court will soon have an opportunity to reconsider its Gonzales v. Raich rational-basis test. This important chance to recalibrate, as Ilya Somin recently noted, comes in the Canna Provisions v. Bondi cert. petition. The Court in Raich held that judges “need not determine whether [the regulated] activities, taken in the aggregate, substantially affect interstate commerce in fact, but only whether a ‘rational basis’ exists for so concluding.” This is, as the Court has noted elsewhere, its “most deferential standard of review,” and it raises a host of constitutional concerns.

Most obviously, the rational-basis test extends legislative power so far as to leave in doubt whether the federal government is still one of enumerated powers. (As if the substantial-effects test were not broad enough!) The Constitution’s enumerated powers are the first line of defense for our freedom—our personal freedom, not just federalism. The Supreme Court, however, in its wisdom has largely eviscerated this constitutional constraint. The Court should therefore seize upon Canna as a chance to take a modest step back toward limited government, federalism, and personal freedom.

Lest there be any doubt, I should explain that I am very skeptical about the liberalization of drug laws. But much more is at stake. The country cannot afford almost infinite federal power. Nor can it afford a judiciary that is afraid to correct its mistakes. To err is human, and we need a Supreme Court that is willing to correct its own errors.

A second issue in the case, not far below the surface, concerns judicial deference. The rational-basis test requires judges to defer to the judgment of Congress as to whether it is acting within the commerce power—as long as there is a rational basis for that conclusion. That test therefore has some similarity to Chevron deference, which required judges to defer to reasonable agency interpretations of law. As in Chevron, so under Gonzales, judges are excused from deciding the legal question for themselves and are required to defer to the legal judgment of another branch of government, as long as it is reasonable.

Put another way, the rational-basis test overtly requires judges to uphold statutes that are not “in fact” within the commerce power. So, rather than follow their duty “to say what the law is,” they end up saying what it isn’t.

The question in Canna, as in Loper Bright v. Raimondo, which overturned Chevron, therefore centrally concerns the role of federal judges. Are they to exercise their own independent judgment and say what the law is? Or are they to bow to one of the political branches and say what is not the law? Although Loper Bright rested on statutory grounds, the Court in that case recognized the underlying constitutional stakes. Here, there is no statutory off-ramp—so the Court must more directly preserve its constitutional role.

A third issue that can be discerned in Canna involves the Tenth Amendment. Wait a moment, you may protest, that amendment is merely tautological! In sense, yes; but not entirely. The Tenth Amendment states: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” It thereby echoes and confirms the Constitution’s limits on federal and state power.

But it restates those structural limits as an enumerated right. The Constitution’s grant of limited powers to Congress structurally protects Americans in the freedom or power that is left over. The Tenth Amendment, however, transforms that residual freedom or power into a constitutional right, and that is consequential. As founders such as James Madison and Alexander Hamilton observed, the rights are “exceptions” to power. The amendment, moreover, speaks of the powers “reserved to the States respectively, or to the people”—making it a personal right as well as one belonging to the states. Americans, accordingly, have not only a structurally protected freedom, but also an enumerated right, against any exertion of federal power that goes further than what is granted by the Constitution.

All this matters because the Supreme Court’s rational-basis test candidly gives Congress power beyond what the Commerce Clause “in fact” authorizes. The test thus violates more than the Commerce Clause. Even more emphatically, it violates the Tenth Amendment right of Americans to the “powers not delegated to the United States by the Constitution.”

The Court should therefore grant certiorari in Canna on all three of these crucial questions. Having departed from the Constitution in profoundly troubling ways, the Court should embrace the opportunity to correct its errors.