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Lewis & Clark Law Review

Volume 9 / Number 4 / Winter 2005



Limiting Raich 

Randy E. Barnett

Professor Barnett represented Angel Raich and Diane Monson at the Supreme Court in this case.

Is Morrison  Dead? Assessing A Supreme Drug (Law) Overdose

Jonathan H. Adler

There was little doubt that the federal government would prevail in Gonzales v. Raich. What was, perhaps, so unexpected was so expansive a repudiation of enforceable judicial limitations on federal power. In upholding the constitutionality of the Controlled Substances Act as-applied to the non-commercial intrastate possession and consumption of marijuana for medical purposes as authorized under California law, the Supreme Court hollowed out the core of contemporary Commerce Clause jurisprudence. Insofar as United States v. Morrison  had stood for the propositions that only intrastate economic activities could be aggregated for purposes of the “substantial affects” test, that attenuated connections between a regulatory scheme and interstate commerce exceeded Congress’s limited and enumerated powers, and, perhaps most importantly, that judicial review should serve as the ultimate check on overly broad assertions of federal power, it may now be a dead letter. The rationale adopted by Justice Stevens’s majority opinion undercuts the primary judicial safeguards of federalism. While the Raich majority purports to be following the doctrinal contours of Lopez and Morrison, it actually represents a repudiation of these prior cases. Further, Raich continued the Supreme Court’s uninterrupted practice of rejecting as-applied challenges to federal statutes, and is likely to preclude any such suits in the future. The inability to mount as-applied challenges to broad regulatory statutes like the CSA is significant because it creates additional barriers to future Commerce Clause litigation. The lack of a viable way to challenge discrete applications of broader federal laws means few Commerce Clause challenges can ever hope to succeed. The central holding of Morrison, like the legendary Jim Morrison, now lives on only in the hearts of true believers.

Why Not Heighten the Scrutiny of Congressional Power
when the States Undertake Policy Experiments?

Ann Althouse 

This Article assesses Justice O’Connor’s attempt, in her dissent from Gonzales v. Raich, to define a new standard of review for congressional Commerce Clause authority when a state has undertaken a policy experiment in an area that has traditionally been left to states. The majority in Raich found that the Controlled Substances Act was not a “single-subject statute,” as in United States v. Lopez and United States v. Morrison, and regulated more than non-commercial intrastate matters. The majority viewed Raich as an easy case—not significantly different from Wickard v. Filburn. This Article finds that the decision was conventional and predictable and not a surprising betrayal of the principles of limiting the commerce power articulated in Lopez and Morrison.

O’Connor’s dissent, although never clearly articulated, suggests a higher level of scrutiny for federal statutes that infringe on the states’ ability to carry out specific policy experiments. This Article restates O’Connor’s suggestion as a straightforward doctrine and discusses the difficulties it would present. It may be disappointing and unsatisfying to those of us who care about federalism values, but O’Connor’s suggested doctrine would be unworkable and unstable.

Raich and Judicial Conservatism at the Close of the Rehnquist Court

Eric R. Claeys 

This Article explains the separate opinions of Justices Scalia and Thomas in Gonzales v. Raich and other New Federalism cases. Scalia and Thomas’s opinions highlight a tension in how different judicial conservatives understand the objects of constitutional interpretation. Thomas represents the views of “originalists,” who seek above all else to identify and follow the original meaning of the relevant constitutional text. Scalia represents the views of “judicial minimalists,” who seek above all else to develop rules that minimize the interpretive and policy-making discretion of federal judges. Although originalism and minimalism complement one another in many cases, they do not always do so, and Raich marks the New Federalism case where these two approaches diverged. 

This divergence makes it impossible to understand “judicial conservatism” as a coherent project to change contemporary constitutional interpretation. Contrary to the views of many critics of the Rehnquist Court, “judicial conservatives” as such are not united enough to threaten seriously the New Deal transformation of the national government’s power.

Rescuing Federalism After Raich: The Case for Clear Statement Rules

Thomas W. Merrill

The Rehnquist Court’s federalism jurisprudence began with a focus on clear statement rules, but then turned to prohibitory limits on the scope of federal power. This Article specifies the differences between clear statement rules and prohibitory limitations, and outlines some of the factors courts should consider in determining which strategy to pursue in any given context. The Article argues that the scope of the Commerce Clause is an issue that should be resolved using clear statement rules. The Court’s decision in United States v. Lopez to follow a prohibitory approach was both strategically mistaken and poorly executed. Although the principles the Court established in Lopez have been largely eviscerated by Gonzales v. Raich, the Court now has the opportunity to consider whether to turn to a strategy of clear statement rules. Such an approach would put Commerce Clause jurisprudence on a sounder footing, and could be achieved without upsetting the results in any of the major decisions in the post-Lopez era.

“Society Must Be [Regulated]”: Biopolitics and
the Commerce Clause in Gonzalez v. Raich

John T. Parry 

This Article makes three points about the Supreme Court’s recent decision in Gonzales v. Raich. First, it suggests that Raich complicates the effort to define Commerce Clause doctrine. Although Raich employed the doctrinal structure created by the Lopez and Morrison decisions, the emphasis was entirely different, and perhaps the only clear doctrinal result of the decision is that pieces of comprehensive regulatory programs will be upheld precisely because they are part of a larger program. Second, this Article contends that Raich exemplifies an idea of government power that assumes the rationality and desirability of regulation and that this assumption dovetails with Michel Foucault’s theory of biopower or biopolitics, in which the power of the modern state turns on its ability “to make live and let die.” Specifically, the Article explores what it means for constitutional law to accept the biopolitical nature of contemporary governmental power, particularly in the context of end of life decisions as well as pain-management. The third, concluding section considers the possibility that biopolitcs, while usually described in negative terms, has more complex normative implications.

The Medical Marijuana Case:
A Commerce Clause Counter-Revolution?

Robert J. Pushaw, Jr. 

Many observers have suggested that Gonzales v. Raich signals the Supreme Court’s abandonment of its radical ten-year effort to enforce meaningful limits on Congress’s power “to regulate Commerce … among the several States.” Professor Pushaw argues that such reports of the death of recent Commerce Clause jurisprudence are greatly exaggerated. Indeed, he demonstrates that the so-called Commerce Clause “revolution” was quite modest, consisting of the development and application of vague standards to invalidate two minor federal statutes. Those standards are so elastic that they could plausibly have been invoked either to uphold or strike down the federal law involved in Raich, which prohibited the cultivation or possession of marijuana for any purpose. 

Professor Pushaw contends that, if the Court actually wants to reform its doctrine, it must identify and apply particularized rules of law drawn from the Commerce Clause’s text, history, and early precedent. This law is straightforward: Congress can regulate only “commerce” (i.e., the sale of goods or services and all accompanying activities geared toward the market) that has an impact “among the states.” Application of this approach in Raich would have resulted in thwarting Congress’s attempt to reach conduct—the mere possession of home-grown marijuana for personal medical use—that did not constitute “commerce” and had no effect in any other state. 

 What Hath Raich Wrought? Five Takes

Glenn H. Reynolds & Brandon P. Denning 

The Court’s decision in Gonzales v. Raich provides an opportunity to reflect on the Rehnquist Court’s apparent run at establishing a judicially-enforceable federalism. Two of the most visible symbols of this effort were the decisions in United States v. Lopez and United States v. Morrison, in which the Court twice struck down acts of Congress as beyond the scope of its commerce power. Now, nearly ten years after Lopez and five years after Morrison, Raich leaves many wondering whether the Court provided an answer to John Nagle’s question whether Lopez was destined to be a watershed or a “‘but see’ cite.” In this Article, we offer our tentative, impressionistic answer(s) to the question we pose in this title. In doing so, we move from the practical impact of Raich (i.e., what does this mean for as-applied challenges to which lower courts were becoming receptive?) to more abstract ones (e.g., does Raich represent the third death of federalism, or was the Rehnquist Court’s federalism project an illusion?).



Moving Beyond Instinct: Persuasion in
the Era of Professional Legal Writing

Kathryn M. Stanchi

Moving Beyond Instinct is a book review of Advanced Legal Writing: Theories and Strategies in Persuasive Writing by Professor Michael Smith. In the Review, Advanced Legal Writing is evaluated not only as a teaching text, but also as a practitioner desk reference and a theoretical exploration of advocacy writing. The Review argues that Advanced Legal Writing represents a significant forward step in the literature about persuasive writing, because it names and categorizes specific rhetorical devices and, using multiple theories from disciplines outside law, explains why they work. In this way, Advanced Legal Writing allows scholars and practitioners to move beyond their reliance on what they instinctively think or know is “persuasive” toward a more analytical, informed knowledge of persuasion. In addition, the Review argues that Advanced Legal Writing encourages and helps advocates make persuasive writing more beautiful and interesting, and proves that persuasive legal writing is an art and a discipline worth studying.

The Review critiques Advanced Legal Writing for its failure to address some of the moral issues related to the troubling aspects of advocacy, particularly those techniques that are psychologically manipulative or easily misused. Having noted that certain techniques are effective because they play on human psychology in a particular way, the Review argues that the book should have explored a bit more the line between persuasion and manipulation. Specifically, the Review suggests that Advanced Legal Writing, in particular because it is a teaching text, should have devoted some space to acknowledging how certain persuasive techniques can reflect and reinforce hierarchies of class, race, and gender.



One Step Forward, Two Steps Back: Women Asylum-Seekers
in the United States and Canada Stand to Lose Human Rights
Under the Safe Third Country Agreement

Amy K. Arnett 

The United States and Canada share similar asylum adjudication processes rooted in international treaties. As contracting parties, each country should adhere to international legal standards in a united effort to protect bona fide refugees seeking asylum. This Comment explores the American approach to gender-based asylum claims, comparing it to Canada’s, particularly when the claimant has been the victim of domestic violence. Because Canada conforms more closely to international criteria, it arguably provides more extensive relief to gender-based asylum claimants. To examine the extent of the differences between these two nations’ approaches, this Comment will address a new treaty between the two countries—called the Safe Third Country Agreement—because enforcement of this agreement could create new struggles for gender-based asylum-seekers in the United States. Finally, this Comment will urge the United States to take action in conformity with its duty to uphold international human rights standards for women.

Needed, Private Attorneys General: Empowering Consumers
to Reform the Household Goods Moving Industry

Joseph L. Franco

This Comment discusses how consumers are inadequately protected against the unscrupulous practices of an increasing number of household goods moving companies. It briefly reviews the historical reasons for today’s problems, discusses the need to improve upon recent government efforts to increase consumer protection, and proposes a consumer private right of action modeled upon federal RICO and state DTPA statutes.

Competency, Consent, and Electroconvulsive Therapy:
A Mentally Ill Prisoner’s Right to Refuse Invasive Medical
Treatment in Oregon’s Criminal Justice System

Elizabeth R. Newell

Psychiatrists in Oregon are overriding competent refusals of electroconvulsive therapy (ECT) by mentally ill prisoners and patients in state facilities. The United States Supreme Court has found that both prisoners and pretrial detainees have a significant liberty interest in being free from unwanted antipsychotic medication. A similar right to refuse ECT exists under the Due Process clause of the Fourteenth Amendment. Due process requires an adjudication of incompetence before treatment is forced. In addition, courts should make a substituted judgment for the prisoner or patient as to whether ECT is the appropriate medical treatment.


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