Could This Be an Over-Raich Into the States Authority?

Patrick J. Sobkowski wrote yesterday on the application of Gonzalez v. Raich (2005) to my analysis on “in interstate commerce” and Congress’ broad authority to regulate the growth of personal marijuana plants. His writing is available here.

            I do not have any concerns about Sobkowski’s analysis, as it is correct. Raich and specifically Scalia’s concurrence, highlights the broad authority Congress has under the Commerce Clause authority. Yet, there could be an applicable preemption argument applied to this analysis. Though Congress has a long-standing power under the Commerce Clause, they may also preempt state law or activity in the field in which they occupy (see Field Preemption). Though the analysis is focused on the Commerce Clause, the growth and distribution of illegal substances is a field Congress had occupied and intended to limit the growth and distribution “among the states,” but they left infractions of intrastate enforcement to the State, with the federal government enforcement being somewhat discretionary. (See California enforcement and the Executive branch discretion to pursue individuals within the State). 

            How this analysis can be squared with animal cruelty laws, is that animal cruelty penalties have been traditionally and wholly State enforcement issues. Which means, to me at least, that United States v. Morrison is more applicable here. Not only is the language of the statute a Commerce hook, but it seems to be providing a federal remedy for a state enforcement issue. 

            I think Mr. Sobkowski’s analysis properly applies Raich because Scalia highlights the broad authority Congress holds under Article I § 8 cl. 3. Yet, he got me thinking; could this traditional animal cruelty enforcement by the States, place this in the States police powers? 

            There is another interesting argument here. If Congress has already occupied the field of interstate transportation and sale of animals, has criminal and civil damages, and has language that shows their intent to regulate interstate commerce; this could very well be Necessary and Proper to the further protection of animals that are sold or transported in interstate commerce. 

            If this particular Act is targeted at the “sale” of animals for the purposes of cruel acts (smash video’s being the most relevant example), then this could very well be squared with Necessary and Proper Clause authority stemming from their Commerce Clause authority expressed in Raich.