My Question for Harriet Miers
Since President Bush is going forward with the Miers nomination, I have my own "fantasy question" that I would pose to her if I was on the Senate Judiciary Committee (a question that I also would have posed to Justice Roberts during his confirmation hearings, or to any other prospective federal judge).
Consider this photograph:
This photograph depicts some bananas growing in my backyard, in Miami, last June. The bananas were ready to be picked within a couple of weeks of the time that I took this picture. Except for some bananas that I gave to co-workers, my family and I consumed all of them, ourselves.
We did not sell any bananas, and none of the bananas ever crossed state lines. Also, none of them entered foreign commerce.
They were delicious, by the way.
Assume for the sake of argument that Congress decides to pass strict quotas on domestic banana production. The reasons for this do not particularly matter; but let's assume that it is to assist the economy of a banana-producing country in the Caribbean whose help we need for other strategic purposes.
And let us say that, for purposes of effecting this strict quota, Congress adds a provision prohibiting the growing and harvesting of bananas for personal use. The attendant penalties for violating this provision could be fines, imprisonment, forfeiture, or all three. Needless to say, the statute would authorize seizure and destruction of the offending bananas.
Question: Does the Commerce Clause give Congress the power to prohibit, and to punish, the growing and harvesting of bananas for personal consumption under a scenario like that which I have laid out, above? If so, what are the grounds? Is it because the bananas have a potential effect on interstate commerce, or is it because such regulation is "necessary and proper" to achieve the purpose of an otherwise permissible regulation?
If you believe that the Commerce Clause does not confer such power, how would you square your view of this scenario with the Court's decision in Gonzalez v. Raich?
If you decline to answer the question on grounds that it could arise before the Court, then please tell us whether you see any principled distinctions between this hypothetical scenario and the facts of Raich that could, theoretically, lead to a different outcome. Where would you look for guidance on how to answer this question?
UPDATE: Bonus points question: If you believe that the Commerce Clause gives Congress the power to regulate home-grown bananas, as described above, how do you square that with the Court's holding in Lawrence v. Texas? Do citizens of the United States enjoy a presumption of liberty when engaging in consensual, peaceful conduct in the privacy of their homes and on their private property?

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