The Medical Marijuana Case: A Commerce Clause Counter-Revolution?

Abstract

Many observers have suggested that Gonzales v. Raich signals the Supreme Court's abandonment of its radical ten-year effort to enforce meaningful limits on Congress's power “to regulate Commerce . . . among the several States.” Professor Pushaw argues that such reports of the death of recent Commerce Clause jurisprudence are greatly exaggerated. Indeed, he demonstrates that the so-called Commerce Clause “revolution” was quite modest, consisting of the development and application of vague standards to invalidate two minor federal statutes. Those standards are so elastic that they could plausibly have been invoked either to uphold or strike down the federal law involved in Raich, which prohibited the cultivation or possession of marijuana for any purpose.

Professor Pushaw contends that, if the Court actually wants to reform its doctrine, it must identify and apply particularized rules of law drawn from the Commerce Clause's text, history, and early precedent. This law is straightforward: Congress can regulate only “commerce” (i.e., the sale of goods or services and all accompanying activities geared toward the market) that has an impact “among the states.” Application of this approach in Raich would have resulted in thwarting Congress's attempt to reach conduct--the mere possession of home-grown marijuana for personal medical use--that did not constitute “commerce” and had no effect in any other state.

Keywords: Gonzales v. Raich, Commerce Clause, medical marijuana

JEL Classification: K19, K29, K39