The Federalism Project
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The AEI Federalism Project conducts and sponsors original research on American federalism, with particular emphasis on federal and state business regulation, legal developments and the role of the courts, and the prospects for rehabilitating a constitutional federalism that puts states in competition for productive citizens and businesses. Through its AG Watch, the Federalism Project monitors and comments on the increasingly active role of state attorneys general.

The AEI Federalism Project disseminates its research results and opinions through frequent conferences and other public events; through the Federalism Outlook, a newsletter written by the Project’s Director, Michael S Greve; through its website; and through books and publications in scholarly journals.

Supreme Court Update

June 7, 2005

Down with Dope. Up with Hope?

posted by Michael Greve @ 4:28 pm

As widely expected, the Supreme Court has held in Gonzales v. Raich that the Commerce Clause authorizes Congress to criminalize the mere possession of marijuana, even where a state explicitly authorizes personal marijuana possession and use for medicinal purposes.

Does the decision signal the end of the Supreme Court’s federalism? Yes-and perhaps no. Justice Stevens’s majority opinion articulates a standard of judicial deference vis-a-vis Congress that is quite unprecedented in the Rehnquist Court’s federalism decisions. On a more hopeful note, Justice Scalia’s concurring opinion revamps the doctrinal analysis in a useful and sound manner. Federal authority to regulate in-state commerce, he says, does not come from the Commerce Clause but from the Necessary and Proper Clause; and the exercise of that power must be both necessary and proper. Justice Thomas’s dissent follows a very similar line of reasoning. Two justices down; only three more to go.