Ann Althouse, Why Not Heighten the Scrutiny of Congressional Power When the States Undertake Policy Experiments?
9 Lewis & Clark L. Rev. 779 (2005)
Abstract
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,Ó 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.
