What Hath Raich Wrought? Five Takes

Abstract

The Court's decision in Gonzales v. Raich provides an opportunity to reflect on the Rehnquist Court's apparent run at establishing a judicially-enforceable federalism. Two of the most visible symbols of this effort were the decisions in United States v. Lopez and United States v. Morrison, in which the Court twice struck down acts of Congress as beyond the scope of its commerce power. Now, nearly ten years after Lopez and five years after Morrison, Raich leaves many wondering whether the Court provided an answer to John Nagle's question whether Lopez was destined to be a watershed or a "but see cite." In this article, which will appear in a Lewis & Clark Law Review Symposium on Raich, we offer our tentative, impressionistic answer(s) to the question we pose in the title. In doing so, we move from the practical impact of Raich (i.e., what does this mean for as-applied challenges to which lower courts were becoming receptive?) to more abstract ones (e.g., does Raich represent the third death of federalism, or was the Rehnquist Court's federalism project an illusion?).

Keywords: Gonzales v. Raich, Raich, Commerce Clause, federalism, Rehnquist, Supreme Court, Lopez, Morrison

JEL Classification: K30