Ramesh: I agree with you that, in principle, the scope of federal power is not affected by the adoption of state laws — and I did not mean to suggest otherwise. Yet, as a practical matter, I think the existence of state laws may be relevant under existing commerce clause jurisprudence for two reasons.
First, the Court’s current view that Congress may regulate those activities that “substantially affect” interstate commerce raises a particularly thorny question of how to define the relevant “class” of activity. Is it just possession of marijuana in tiny amounts by the chronically ill? Is it all marijuana possession for any purpose? Is it all drug possession, or perhaps all marijuana-related activities? All activities regulated under the Controlled Substances Act? Define the class broadly enough and a “substantial effect” on interstate commerce is guaranteed. In Raich
Randy Barnett addresses this issue by suggesting that California law may be relevant in defining the relevant class. In other words, his brief argues that the court can find that the possession of marijuana for medicinal purposes where authorized (and regulated) by state law is beyond the scope of the commerce clause without necessarily holding that other forms of marijuana possession, such as possession with the intent to distribute, are similarly beyond Congress’s reach.
Second, whether we like it or not, current commerce clause jurisprudence suggests state action may be quite relevant. Justice Kennedy’s Lopez
concurrence suggested the Court should be attentive to state exercises of their traditional police powers. Joined by Justice O’Connor, Kennedy suggested that the existence of various state laws concerning gun violence in schools was relevant in considering the constitutionality of the Gun Free School Zones Act. The existence of state laws may also be relevant to the question of whether federal authority is “necessary” to prevent one state from harming another. In this case, one can argue California’s approval of medical marijuana subject to various regulations means that there are less likely to be the sort of “interstate” effects that might justify federal action.
In sum, I think we agree that the existence of state laws should be irrelevant to the scope of federal power. Alas, the Supreme Court’s federalism jurisprudence has not gotten there quite yet. My fear is that a wrong decision in Raich
means we never will.