Clear Statement Rules after
Gonzales v. Raich
The Supreme Court’s 2005 decision in Gonzales v. Raich1 severely undermined hopes that the Court might enforce meaningful constitutional limits on congressional power.2 In the aftermath of Raich, some observers hoped and others feared that judicial limits on federal power might be resuscitated in Gonzales v. Oregon3 and Rapanos v. United States4 the two most significant federalism cases of the 2005–2006 term. The appointment of two new conservative justices— Chief Justice Roberts and Justice Alito—may have increased the chance of departing from precedent, though the justices these newcomers replaced had both dissented in Raich.
Oregon and Rapanos could potentially have constrained the virtually limitless Commerce Clause power that the Supreme Court allowed the federal government to claim in Raich. A less high-profile case, Arlington Central School District v. Murphy,5 addressed the scope
* Assistant Professor of Law, George Mason University School of Law; B.A., Amherst College, 1995; J.D., Yale Law School, 2001; M.A., Harvard University Department of Government, 1997; Ph.D. expected. For helpful suggestions and comments, I would like to thank Jonathan Adler, Douglas Laycock, Marty Lederman, Mark Moller, John Copeland Nagle, and Maxwell Stearns.
1 125 S. Ct. 2195 (2005).
2 For a detailed analysis of the ways in which Raich undermined judicial review of congressional Commerce Clause authority, see Ilya Somin, Gonzales v. Raich: Federalism as a Casualty of the War on Drugs, Cornell J.L. & Pub. Pol’y (forthcoming 2006) (Symposium on the War on Drugs), available at http://papers.ssrn.com/sol3/ papers.cfm?abstrac_id = 916965 (visited July 24, 2006).
3 126 S. Ct. 904 (2006).
4 126 S. Ct. 2208 (2006).
5 126 S. Ct. 2455 (2006).