22. November 2005 · Comments Off on Limiting Raich · Categories: Drug Prohibition, General

Randy Barnett at Volokh has been working on a brief for the Ninth Circuit in the abominable Gonzales v. Raich case. The Supremes ruled only on application of the Interstate Commerce clause, this deals with Angel Raich’s basic rights. He’s written a short forward for an upcoming collection in the Lewis & Clark Law Review on Raich’s potential ramifications vis-a-vis federalism. Here’s the abstract:

In Gonzales v. Raich, the Supreme Court rejected a constitutional challenge to the Controlled Substance Act, as applied to the cultivation, possession and use of cannabis for medical purposes as recommended by a physician and authorized by state law. The challenge relied on the precedents of United States v. Lopez and United States v. Morrison in which the Court had found that the statutes involved had exceeded the powers of Congress under the Commerce Clause. As explained by the articles in the symposium in which this Foreword will appear, the Court in Raich has now cast the applicability of these previous decisions into doubt. In this brief essay, I offer a route by which a future majority of the Supreme Court can limit the scope of its decision in Gonzales v. Raich should it desire to put its commitment to federalism above a commitment to national power. Viewed in this light, the decision in Raich is not quite as sweeping as it first appears.

Update: Glenn Reynolds pitches he and Brannon Denning’s article in the collection:

[O]ur article is the only one, I believe, to invoke Emily Litella — and it also has zombies, and a subtle Simpsons reference. Plus a radical theory of the Necessary and Proper clause!


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