Here's my contribution to the symposium, snazzily titled "Why Not Heighten the Scrutiny of Congressional Power When the States Undertake Policy Experiments?" I focus on Justice O'Connor's dissent and conclude:
Justice O’Connor seems to have responded sympathetically to the predicament in which the Raich plaintiffs found themselves. This sympathy resonated with ideas about the states as laboratories of democracy. But Justice O’Connor’s dissenting opinion never faces up to what it means as a general proposition. Many commentators will nevertheless look at her opinion and, through the lens of their own sympathy for the plaintiffs and perhaps also their own enthusiasm for the judicial enforcement of federalism, see a better formulation of Commerce Clause doctrine than what the majority had to offer. I would ask commentators who think the Court erred in Raich to look beyond the context of the case and consider the general issue of whether to endorse a new doctrine that would change the degree of deference to Congress where a state has undertaken a policy experiment in an area that traditionally has been left to the states. I think such a doctrine is unworkable. It would invite fifty states and innumerable cities to carve out exceptions of all sorts from important federal statutes that are unquestionably supported by the Commerce Clause. Much as I would prefer to believe that it would prove beneficial to free local government to conduct idiosyncratic policy experiments that take random bites out of major federal statutes, I predict disarray and detriment. But I would love to be convinced that I am wrong.Other contributions to the symposium:
"Foreword: Limiting Raich" by Randy E. Barnett
"Is Morrison Dead? Assessing a Supreme Drug (Law) Overdose" by Jonathan H. Adler
"Raich and Judicial Conservatism at the Close of the Rehnquist Court" by Eric R. Claeys
"Rescuing Federalism After Raich: The Case for Clear Statement Rules" by Thomas W. Merrill
“'Society Must Be [Regulated]': Biopolitics and the Commerce Clause in Gonzales v. Raich" by John T. Parry
"The Medical Marijuana Case: A Commerce Clause Counter-Revolution?" by Robert J. Pushaw, Jr.
"What Hath Raich Wrought? Five Takes" by Glenn H. Reynolds & Brannon P Denning.