Gonzales V. Raich: Federalism as a Casualty of the War on Drugs

45 Pages Posted: 14 Jul 2006 Last revised: 8 Dec 2008

See all articles by Ilya Somin

Ilya Somin

George Mason University - Antonin Scalia Law School

Date Written: 2006


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 effect [on] interstate commerce" required to legitimate congressional regulation under United States v. Lopez and United States v. Morrison; by making it easier for Congress to impose controls on even non-economic activity by claiming that it is part of a broader regulatory scheme; and finally, by restoring the so-called rational basis test, holding that "[w]e need not determine whether [defendants'] activities, taken in the aggregate, substantially affect interstate commerce in fact, but only whether a rational basis exists for so concluding." 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.

Keywords: Raich, Gonzales, federalism, judicial review, constitutional law, war on drugs, public policy

JEL Classification: H77, I18

Suggested Citation

Somin, Ilya, Gonzales V. Raich: Federalism as a Casualty of the War on Drugs (2006). Cornell Journal of Law and Public Policy, Vol. 15, No. 3, pp. 507-550, Summer 2006, George Mason Law & Economics Research Paper No. 06-31, Symposium: The Latest Developments in the War on Drugs, September 2006, Available at SSRN: https://ssrn.com/abstract=916965

Ilya Somin (Contact Author)

George Mason University - Antonin Scalia Law School ( email )

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HOME PAGE: http://sls.gmu.edu/ilya-somin/

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