Comstock and the Commerce Clause.

An older post on Volokh is interesting to re-read, after thinking more today about Raich and the Court's presumed reluctance to expand the reach -- perhaps even to dial down or tone back? -- of the Commerce Clause grab.

We can always hope.

Ilya Somin on Solicitor General Elena Kagan's decision not to argue the Commerce Clause angle in Comstock:

Why would the Solicitor General choose to forego a potentially winning argument? One possibility is that she simply doesn’t think that it is likely to win. But even if she is uncertain about the prospects, why not at least try? After all, nothing prevents the United States from making both the Commerce Clause and Necessary and Proper Clause arguments. Another possibility is that either Kagan or one of her superiors in the Obama Administration secretly disagrees with the Supreme Court’s most expansive Commerce Clause precedents, such as Gonzales v. Raich, and does not want to see them extended. I hope this is true, but it seems unlikely for any number of reasons. I highly doubt that either Kagan or other high-ranking members of the Obama Justice Department disagree with the near-universal consensus among liberal jurists and legal scholars in favor of virtually unlimited congressional Commerce Clause authority.

The last possibility that occurs to me is that the administration not only expects the Commerce Clause argument to lose but fears that if that happens, it will create an unfavorable precedent for the federal government in future cases; even if the feds manage to win Comstock itself on the narrower penal system argument, that theory would not apply to other matters that the feds might seek to regulate under the Commerce Clause. As a result, the SG be willing to forego a (small) chance of winning the case on the Commerce Clause in exchange for increasing the likelihood that the Court might avoid the Commerce Clause issue entirely in making its ruling. If this conjecture is correct, it suggests that Kagan and the administration believe that the justices are more willing to cut back on Raich than I fear might be the case. If that really is the reason for the government’s posture in Comstock, I would be very happy. Kagan and her staff surely have a lot more inside information about the justices’ views than I do.