Thursday, September 23, 2010

More on Raich

QUESTION: I think the Raich decision merely reiterates Wickard (both its holding and its rationale), and it is consistent with Lopez and Morrison.  The rationale being that the regulated activity, although local and intrastate, is "economic" as in Wickard, and therefore within commerce power. In contrast, the activity in Lopez and Morrison is "not economic," hence not within commerce power. Both activities are clearly not "commercial." 

ANSWER: I think that is a plausible reading of one holding in Raich. That is, one could understand the Court as holding that cultivating marijuana is "economic" in nature, just as Lopez considered the growing of wheat in Wickard to be economic in nature -- even if done for purely personal consumption. As such, we can aggregate its effects, and we have a substantial effect on interstate commerce, such that Congress can regulate that acitivity.

But I would disagree that this is all that Raich holds. The alternative rationale -- and the more significant one -- is that Congress can regulate the activity even if we consider it neither commercial or economic. Why? Because what Congress is regulating in the relevant statute (the CSA) is the interstate market in narcotics, clearly commercial activity. And when Congress is regulating clearly commercial activity through a broad regulatory scheme, and that scheme happens to ensnare purely non-commercial, intrastate manifestations of that activity, it is still within the commerce power so long as Congress has a rational basis for concluding that exempting those manifestations from regulation would undercut the effectiveness of that regulatory scheme. 

QUESTION: In view of the above, it wasn't clear to me what the answer to your question "what Raich adds" was (before yesterday's class). Raich's complaint was different in terms of not attacking the statute itself, but rather its application to an individual. However, the Raich holding used the same rationale as in the above-mentioned cases. In other words, even if the CSA was specifically directed to marijuana only, and not to a larger scheme of five classes of controlled substances, the decision wouldn't be any different.  The court doesn't seem to make any distinction between marijuana and wheat and relies on the same supply/demand argument as in Wickard.

ANSWER: Again, in part you are absolutely correct. But I think there is more to the holding than that, as I have outlined above. Moreover, you could say that a CSA directed exclusively at the interstate marijuana market would still be a broad regulatory scheme for purposes of Raich's logic. Such a statute would still be far broader -- and much more clearly directed at commercial activity -- than a statute that did no more than regulate the possession of marijuana in a school zone.