Is Morrison Dead? Assessing a Supreme Drug (Law) Overdose

Abstract

There was little doubt that the federal government would prevail in Gonzales v. Raich. What was, perhaps, unexpected was so expansive a repudiation of enforceable judicial limitations on federal power. In upholding the constitutionality of the Controlled Substances Act as applied to the non-commercial intrastate possession and consumption of marijuana for medical purposes as authorized under California law, the Supreme Court hollowed out the core of contemporary commerce clause jurisprudence. Insofar as United States v. Morrison had stood for the propositions that only intrastate economic activities could be aggregated for purposes of the "substantial effects" test, that attenuated connections between a regulatory scheme and interstate commerce exceeded Congress' limited and enumerated powers, and, perhaps most importantly, that judicial review should serve as the ultimate check on overly broad assertions of federal power, it may now be a dead letter. The rationale adopted by Justice Stevens' majority opinion undercuts the primary judicial safeguards of federalism. While the Raich majority purports to be following the doctrinal contours of Lopez and Morrison, it actually represents a repudiation of these prior cases. Further, Raich continued the Supreme Court's uninterrupted practice of rejecting as-applied challenges to federal statutes, and is likely to preclude any such suits in the future. The inability to mount as-applied challenges to broad regulatory statutes like the CSA is significant because it creates additional barriers to future commerce clause litigation. The lack of a viable way to challenge discrete applications of broader federal laws means few commerce clause challenges can ever hope to succeed. The central holding of Morrison, like the legendary Jim Morrison, now lives on only in the hearts of true believers.

Keywords: Gonzales v. Raich, 125 S.Ct. 2195 (2005), United States v. Morrison, 529 U.S. 598 (2000), Commercial Clause, As applied challenges, Federalism, Constitutional Law

JEL Classification: K19