QUESTION: I cannot see how Raich helps our analysis under the Commerce Clause discussion. Unless we assume that noncommercial, intrastate activities can be aggregated to substantially affect interstate commerce, it appears to be relatively similar to Lopez and Morrison. Can you help?
ANSWER: I will try. The statute challenged in Raich was the Controlled Substances Act, which Angel Raich conceded regulated an interstate commercial market. Thus, it is the CSA which we, as a first tier matter, subject to the Lopez test. Doing so, we conclude that, because it regulates a commercial activity, it fits within the third category. Angel Riach argued, though, that Congress was under an obligation to except her activity from the coverage of the CSA because her activity was noncommercial and purely intrastate. The Court said no. The Court did NOT say that her noncommercial, intrastate activity could be aggregatged, and thus it had (as a class) a substantial effect on interstate commerce. Instead, the Court held that the CSA was regulating commercial activity, and Congress need not create an exception to such valid regulation (for intrastate noncommerical instances of the regulated activity) when it has a reasonable basis for concluding that such an exception will undermine the broader regulatory program (i.e., the CSA). In this way, Angel Raich's specific activity was not what Congress targeted, unlike Rodrigo Lopez's possession of a gun of a school zone. In Raich, the regulated activity was the distribution of narcotics, and this makes the doctrinal analysis different.