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States’ rights aren’t just for reactionaries anymore. Most observers have identified the Rehnquist Court’s Federalist revival with political conservatism. But the next wave of federalism cases on the U.S. Supreme Court’s docket are likely to concern efforts by politically liberal states to depart from social policies set by a conservative federal government. Now that individual states have staked out positions on medical marijuana, physician-assisted suicide and same-sex marriage that diverge from the Republican Party line, the life expectancy of these social experiments may well depend on the willingness of courts to enforce limits on national legislative power. On Nov. 29, the court heard oral argument in Raich v. Ashcroft, which concerns whether the federal Controlled Substances Act (CSA) can constitutionally be applied to the medicinal use of home-grown marijuana. California law authorizes such use; federal law, as construed by the U.S. Department of Justice under both Clinton and Bush, forbids it. A divided panel of the 9th U.S. Circuit Court of Appeals enjoined the enforcement of the CSA against California patients like Angel Raich on the ground that such applications exceed Congress’ authority under the commerce clause. Raich will test the vitality and credibility of the Rehnquist Court’s efforts to limit the scope of federal commerce clause authority. The court’s decisions in United States v. Lopez (1995) and United States v. Morrison (2000) established that Congress generally may regulate only commercial activity. But the decisions left two crucial openings for circumvention. First, if Congress is allowed to define the relevant class of regulated activity, it can manipulate that definition in order to uphold virtually any regulatory scheme. For example, the general category of “marijuana consumption” is probably commercial, since most people buy marijuana from others; the narrower category of homegrown medicinal use allowed in California, by contrast, involves no commercial transaction. The outcome turns on how the court defines the regulated activity in question. Raich thus requires the court to find a principled means of determining the level of generality at which to evaluate the statute. Second, Lopez suggests that even noncommercial acts may be regulated as “an essential part of a larger regulation of economic activity.” Congress may thus regulate possession of contraband, such as guns or drugs, as part of regulating sales. But any noncommercial regulation can be characterized as part of a “comprehensive scheme” aimed at commercial acts. The Gun Free School Zones Act struck down in Lopez, for instance, could easily have been characterized as part of a comprehensive scheme regulating the market for firearms. The challenge in Raich will be to develop a principled version of the “comprehensive scheme” exception that does not eliminate all limits to the commerce clause. These are difficult questions, but the government’s argument in Raich treats them as simple. As in Lopez, the government has argued emphatically that it has power to regulate the activity in question, without articulating any principled view of what it cannot regulate. In a constitutional system founded on the notion of a government of limited and enumerated powers, that cannot be a winning strategy. The government would be far more credible if it could identify a limit on Congress’ power. Court’s credibility is at stake Raich also raises a question of credibility for the court. The “Federalist Five” who limited the commerce power in Lopez and Morrison (Chief Justice Rehnquist, and justices O’Connor, Scalia, Kennedy and Thomas) have been accused of defending federalism only where it leads to politically conservative results. For them, Raich is a chance to put a commitment to state autonomy ahead of any political affinity for a more restrictive national drug policy. The Lopez and Morrison dissenters, on the other hand (justices Stevens, Souter, Ginsburg and Breyer), face a somewhat different dilemma. The court’s liberals have been committed to an aggressive use of judicial power to protect individual rights. But in federalism cases, these justices have invoked the principle of judicial restraint. With Raich, they can either accept the notion of doctrinal innovation in structural cases or, at least, explain why judicial restraint is more important in that context than with respect to individual rights. Raich thus challenges the court to demonstrate that it is committed to federalism irrespective of the politics of the policies in question and that it will enforce the Constitution evenhandedly. The case also illustrates the need for debates about federalism to rise out of the rut dug in the 1960s, when states’ rights stood for resistance to progressive social policies like racial equality. The politics of federalism in our modern debates are likely to be far less predictable. That may, ironically, create some breathing space for a principled commitment to the federal balance independent of short-term political imperatives. Ernest A. Young is the Judge Benjamin Harrison Powell Professor of Law at the University of Texas School of Law.

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