American Federalism and the Tragedy of Gonzales V Raich

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In this essay I contend that Gonzales v Raich (2005), (1) popularly known as the medical marijuana case, was the U.S. Supreme Court's worst modern decision. The indictment rests on four propositions. First, Raich is shockingly implausible even on its own merits. Second, Raich involves a matter--federalism and the constitutional division of power between the national and state governments--that is core to the U.S. constitutional system as reflected in the Constitution's text and history. Third, Raich came at a pivotal time in which the Court had just begun to reinvigorate, after long neglect, judicial protection of federalism, and it offered an opportunity to expand that protection by significantly shifting the American legal culture regarding federalism at little political cost. Fourth, Raich instead decisively undercut the Court's attempts to return American legal culture to founding principles in matters of federalism, resulting among other things in the Court's inability to defend federalism in the politically far more important and divisive challenge to the federal health care legislation in 2012. And, as a bonus, Raich denied two innocent women relief from painful physical suffering for no good reason.

It is hard to think of another modern decision in which the Court, given an easy opportunity to help restore a core principle of constitutional design, instead so decisively and unnecessarily turned the other way. Of course, for scholars, commentators and policymakers who favor wholly national solutions and distrust judicial enforcement of federalism, Raich was a triumph not a failure, for the same reasons. Critically, though, the outcome in Raich could not have happened without the votes of Justices most committed to judicial federalism--and that fact makes it all the greater a tragedy for those who seek to restore the constitutional balance between the states and the national government.

In Bond v United States (2011), Justice Anthony Kennedy--writing for a unanimous U.S. Supreme Court--gave a concise and powerful summary of the values of American federalism:

   The federal system rests on what might at first seem a
   counterintuitive insight, that freedom is enhanced by the creation
   of two governments, not one....

   Federalism is more than an exercise in setting the boundary between
   different institutions of government for their own integrity. State
   sovereignty is not just an end in itself: Rather, federalism
   secures to citizens the liberties that derive from the diffusion of
   sovereign power....

   ... The federal structure allows local policies more sensitive to
   the diverse needs of a heterogeneous society, permits innovation
   and experimentation, enables greater citizen involvement in
   democratic processes, and makes government more responsive by
   putting the States in competition for a mobile citizenry.
   Federalism secures the freedom of the individual. It allows States
   to respond, through the enactment of positive law, to the
   initiative of those who seek a voice in shaping the destiny of
   their own times without having to rely solely upon the political
   processes that control a remote central power....

   Federalism also protects the liberty of all persons within a State
   by ensuring that laws enacted in excess of delegated governmental
   power cannot direct or control their actions. By denying any one
   government complete jurisdiction over all the concerns of public
   life, federalism protects the liberty of the individual from
   arbitrary power. When government acts in excess of its lawful
   powers, that liberty is at stake. (2)

The decision in Bond, however, sustained no actual right nor invalidated any law; it simply concluded that the plaintiff's challenge to a federal law as beyond Congress' enumerated powers could be raised in court. (3) Fundamentally, though, if Justice Kennedy is correct that 'liberty is at stake' in federalism cases, protection of liberty should call forth some meaningful judicial action--not simply to allow such challenges, as in Bond, but in fact to establish material federalism limits upon the national government's action, as set forth in the Constitution. …