I have been working over the weekend on our brief to the Court of Appeals, Ninth Circuit in Gonzales v. Raich. Yes, the case goes on. The Supreme Court only ruled on the Commerce Clause theory we won on below. This left us on remand to the Ninth Circuit to reassert our claim that the application of the Controlled Substances Act to Angel Raich (and others like her) violated her fundamental rights (and some other nonconstitutional claims as well). When the brief is filed and on-line, I will post a link to it here.

In the meantime, as I previously blogged, the Lewis & Clark Law Review has a superb collection of papers forthcoming in a symposium on Federalism After Gonzales v. Raich. The only problem with reading them is that they are depressing for those who care about federalism and limited government. They pretty persuasively explain why the Raich decision was horrible for federalism. In my Foreword to the issue I decided to examine how Raich could be treated as precedent by a future Court who cared about federalism as much as did the dissenters in the case. It turns out that, upon examination, the Raich decision is remarkably thin and could be easily marginalized in a future case. My thesis is that, if there is a future will, then there is a way. Perhaps the reason why Raich seems so significant now is that it interrupted what appeared to be a momentum in favor of federalism. The question I address is how lasting is the damage if, in a future case not involving medical cannabis, the Court decides to take the enumerated powers scheme seriously again.

My Foreword is entitled "Limiting Raich." It is very short (around 10 pages) and is now posted to SSRN so you can read a pre-edited version here. This is the abstract:

In Gonzales v. Raich, the Supreme Court rejected a constitutional challenge to the Controlled Substance Act, as applied to the cultivation, possession and use of cannabis for medical purposes as recommended by a physician and authorized by state law. The challenge relied on the precedents of United States v. Lopez and United States v. Morrison in which the Court had found that the statutes involved had exceeded the powers of Congress under the Commerce Clause. As explained by the articles in the symposium in which this Foreword will appear, the Court in Raich has now cast the applicability of these previous decisions into doubt. In this brief essay, I offer a route by which a future majority of the Supreme Court can limit the scope of its decision in Gonzales v. Raich should it desire to put its commitment to federalism above a commitment to national power. Viewed in this light, the decision in Raich is not quite as sweeping as it first appears.

As Larry Solum likes to say, "download it while it's hot."

Update: The Law Review has now made pre-publication versions of all the articles available on its website here.