The Volokh Conspiracy - Gonzalez v. Raich and the Future of Federalism:

A draft of my forthcoming Cornell Journal of Law & Public Policy symposium article on Gonzalez v. Raich (the medical marijuana case) is now available at SSRN. Longtime VC readers and con law mavens may be interested to know that the article to some extent takes issue with the somewhat less pessimistic interpretation of Raich advanced by co-blogger Randy Barnett here.

Here's the abstract:

The Supreme Court's recent decision in Gonzales v. Raich marks a watershed moment in the development of judicial federalism. If it has not quite put an end to the Rehnquist Court's "federalism revolution," it certainly represents a major step in that direction. In this Article, I contend that Raich represents a major - possibly even terminal - setback for efforts to impose meaningful judicial constraints on Congress' Commerce Clause powers.

Raich undermines judicial enforcement of federalism in three interlocking ways: by adopting an essentially limitless definition of "economic activity" thereby ensuring that virtually any activity can be "aggregated" to produce the "substantial affect [on] interstate commerce" required to legitimate congressional regulation under Lopez v. United States and Morrison v. United States; by making it easier for Congress to impose controls on even "noneconomic" activity by claiming that it is part of a broader "regulatory scheme"; and finally, by restoring the so-called "rational basis" test . . . The Supreme Court's recent seemingly pro-federalism decisions in Gonzales v. Oregon and Rapanos v. Army Corps of Engineers actually do little or nothing to mitigate the impact of Raich.

I also contend that the Raich decision is misguided on both textual and structural grounds. The text of the Constitution does not support the nearly unlimited congressional power endorsed in Raich. Such unlimited power also undercuts some of the major structural advantages of federalism, including diversity, the ability to "vote with your feet," and interstate competition for residents.

Raich's undercutting of federalism by upholding the power of Congress to ban the possession of homegrown medical marijuana closely parallels legal developments during the Prohibition era of the 1920s. In both periods, the establishment of a nationwide prohibition regime greatly eroded decentralized federalism, in part because the Supreme Court accepted the government's claims that the power to regulate a market in prohibited substances necessarily required comprehensive regulation of virtually all sale or possession of the commodities in question.

The future of judicial federalism may depend not just on the precise doctrinal impact of Raich, but on the possibility that liberal jurists and political activists may come to recognize that they have an interest in limiting congressional power. A cross-ideological coalition for judicial enforcement of federalism would be far more formidable than today's narrow alliance between some conservatives and libertarians. Ironically, the Raich decision, in combination with other recent developments, may help bring about such a result.

	[Ilya Somin, July 14, 2006 at 10:01pm] Trackbacks Gonzalez v. Raich and the Future of Federalism: A draft of my forthcoming Cornell Journal of Law & Public Policy symposium article on Gonzalez v. Raich (the medical marijuana case) is now available at SSRN. Longtime VC readers and con law mavens may be interested to know that the article to some extent takes issue with the somewhat less pessimistic interpretation of Raich advanced by co-blogger Randy Barnett here. Here's the abstract: The Supreme Court's recent decision in Gonzales v. Raich marks a watershed moment in the development of judicial federalism. If it has not quite put an end to the Rehnquist Court's "federalism revolution," it certainly represents a major step in that direction. In this Article, I contend that Raich represents a major - possibly even terminal - setback for efforts to impose meaningful judicial constraints on Congress' Commerce Clause powers. Raich undermines judicial enforcement of federalism in three interlocking ways: by adopting an essentially limitless definition of "economic activity" thereby ensuring that virtually any activity can be "aggregated" to produce the "substantial affect [on] interstate commerce" required to legitimate congressional regulation under Lopez v. United States and Morrison v. United States; by making it easier for Congress to impose controls on even "noneconomic" activity by claiming that it is part of a broader "regulatory scheme"; and finally, by restoring the so-called "rational basis" test . . . The Supreme Court's recent seemingly pro-federalism decisions in Gonzales v. Oregon and Rapanos v. Army Corps of Engineers actually do little or nothing to mitigate the impact of Raich. I also contend that the Raich decision is misguided on both textual and structural grounds. The text of the Constitution does not support the nearly unlimited congressional power endorsed in Raich. Such unlimited power also undercuts some of the major structural advantages of federalism, including diversity, the ability to "vote with your feet," and interstate competition for residents. Raich's undercutting of federalism by upholding the power of Congress to ban the possession of homegrown medical marijuana closely parallels legal developments during the Prohibition era of the 1920s. In both periods, the establishment of a nationwide prohibition regime greatly eroded decentralized federalism, in part because the Supreme Court accepted the government's claims that the power to regulate a market in prohibited substances necessarily required comprehensive regulation of virtually all sale or possession of the commodities in question. The future of judicial federalism may depend not just on the precise doctrinal impact of Raich, but on the possibility that liberal jurists and political activists may come to recognize that they have an interest in limiting congressional power. A cross-ideological coalition for judicial enforcement of federalism would be far more formidable than today's narrow alliance between some conservatives and libertarians. Ironically, the Raich decision, in combination with other recent developments, may help bring about such a result.