He wouldn't be happy.

Photographer: Chip Somodevilla/Getty Images

Requiem for Scalia as Justices Let Feds Off the Hook

Noah Feldman is a Bloomberg View columnist. He is a professor of constitutional and international law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “Cool War: The Future of Global Competition” and “Divided by God: America’s Church-State Problem -- and What We Should Do About It.”
Read More.
a | A

Omar Little he ain’t. But Anthony Taylor, a real-life Virginia gangster who specialized in robbing drug dealers, achieved a measure of immortality that the unforgettable fictional stickup artist of "The Wire" never did. On Monday, the Supreme Court used his case to set a precedent.

From now on, when the government prosecutes the federal crime of robbing a drug dealer, it won’t have to prove that the drugs in question would have an effect on interstate commerce, as the text of the law would seem to require. It’s now a federal crime to rob even a dealer who grows his own product and distributes it only locally. Somewhere, the late Justice Antonin Scalia is bemoaning the court’s decision, which serves as a disrespectful requiem for his criminal law jurisprudence.

Taylor was charged with two robberies, both of them failed. In August 2009, he and his "Southwest Goonz" gang broke into the home of a Roanoke, Virginia dealer who apparently specialized in “exotic and high-grade” marijuana. They assaulted the dealer and his girlfriend and demanded to know where the stash was. But unlike the legendary Omar, whose threats in the HBO drama were feared and effective, Taylor’s crew left with little more than two cell phones and a marijuana cigarette.

In October 2009, the Goonz botched it again. This time the gang assaulted the wife of someone else Taylor believed to be a dealer, held her and her kids at gunpoint, then left with nothing but a cell phone.

Taylor’s first federal trial ended in a hung jury. At the second, the government asked the court to block Taylor from introducing evidence that the dealers he targeted sold only locally grown marijuana. The jury nevertheless found him guilty.

That presented a problem because he was convicted under a law that makes it a federal crime to commit a robbery that “obstructs, delays, or affects commerce.” The reason for the mention of commerce is that Congress needs an express constitutional authorization to pass a law. The most expansive authority in the Constitution is Congress’s power to regulate commerce "among the several states."

The reach of this power has been a perennially important topic in constitutional law – which is why Taylor’s case proved to be significant.

To be sure, Taylor didn’t argue that Congress lacks the authority to criminalize his conduct. He couldn’t, because in the landmark 2005 case of Gonzales v. Raich, the Supreme Court held that Congress could prohibit even intrastate production and possession of marijuana because in the aggregate, growing and use affected the national market for the drug.

Instead, in order to challenge his conviction, Taylor maintained that he couldn’t be convicted unless the government proved that the particular drugs he was trying to steal were either intended for interstate commerce or were part of an interstate business.

What made the argument plausible was that the federal law under which Taylor was convicted specifically mentions the effect on interstate commerce.

But the justices didn't buy it. In an opinion by Justice Samuel Alito, the court reasoned that the 2005 Raich decision had already determined that marijuana production, including solely intrastate production, affected interstate commerce. Therefore, Alito concluded, it was enough for the government to prove that Taylor was targeting drug dealers. It didn’t have to prove anything about the specific drugs or the businesses of the dealers he was targeting.

Justice Clarence Thomas was the sole dissenter. He had two reasons for the dissent, one fairly extreme and one rather reasonable.

Thomas’s extreme doctrinal ground was that Congress actually lacks the power to regulate intrastate marijuana growth. He dissented in the Raich case, mounting a vigorous argument that modern interpretation of the commerce clause has gone too far.

Thomas has an outlying view of how limited Congress’s power should be. Even Scalia thought that Congress has authority over drug sales. He concurred in the Raich case, writing that Congress has the power to regulate even intrastate activities that don’t themselves affect interstate commerce, provided doing so is necessary and proper to regulate activities that do.

Where Thomas got it right was his other argument: that the government must carry the burden of proving every element of a criminal case to a jury beyond a reasonable doubt. The holding in Taylor’s case, he said, absolves the government of the burden, because prosecutors no longer have to prove what the statute expressly requires, namely an effect on interstate commerce.

If Scalia were alive, it seems likely that he would have joined this part of Thomas’s dissent and insisted that the government actually prove its case. He believed that there should be no shortcuts when it comes to criminal conviction.

The case would probably still have come out the other way. But although Thomas is keeping the candle burning, his more extreme views about the commerce clause probably obscured the power of his formal objection. That’s too bad – and it’s a reason to miss this aspect of Scalia’s jurisprudence at the end of the Supreme Court term that was his last.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

To contact the author of this story:
Noah Feldman at nfeldman7@bloomberg.net

To contact the editor responsible for this story:
Jonathan Landman at jlandman4@bloomberg.net