Crops, Guns & Commerce: A Game Theoretical Critique of Gonzales v. Raich

Crops, Guns & Commerce: A Game Theoretical Critique of Gonzales v. Raich
CANNANNEW REPORT

Author(s): Maxwell Stearns Posted: 2005 Law & Economics #: 05-21 Availability: Full text (most recent) on SSRN ABSTRACT:   In Gonzales v. Raich, the Supreme Court sustained an application of the Controlled Substances Act (“CSA”), banning all private use of marijuana, as applied to two women who had cultivated or otherwise acquired marijuana for the treatment of severe pain pursuant to the California Compassionate Use Act. Writing for the majority, Justice Stevens placed Raich at the intersection of two landmark Commerce Clause precedents: Wickard v. Filburn, the notorious 1942 decision, which upheld a penalty under the Agriculture Adjustment Act of 1938 applied to a local farmer who violated his wheat quota but who had used the modest excess portion entirely on his own farm, and Lopez v. United States,  the controversial 1995 decision, which stuck down the Gun-Free School Zones Act and for the first time in over sixty years imposed limits on the scope of Congress’s Commerce Clause power based upon the underlying subject matter of the regulated activity. Writing for the Lopez majority, Chief Justice Rehnquist had claimed not to disturb the expansive post-New Deal Commerce Clause precedents, but rather to fit all of the cases neatly into three circumscribed categories: the use of channels of interstate commerce; instrumentalities or persons or things traveling in interstate commerce; and economic activities that have a substantial effect on interstate commerce. Significantly, the Lopez Court redefined the third and most important category from its original formulation set out in Wickard. While Wickard had allowed Congressional regulation of local activity, ‘whatever its nature . . . if it exerts a substantial economic effect on interstate commerce,’ Rehnquist instead used ‘economic’ to qualify the activity itself. Following the revised Lopez formulation, the Raich Court inquired whether cultivating, acquiring, and using medical marijuana qualified as a regulable economic activity. Relying upon a dictionary for the proposition that economics refers to ‘the…

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Source : Crops, Guns & Commerce: A Game Theoretical Critique of Gonzales v. Raich

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