Full disclosure: what follows is my position as an advocate for the Respondents

in Ashcroft v. Raich, but it is also my sincerely held opinion as a professor

constitutional law:

Ramesh asks why the presence or absence of a state law makes any difference to

the extent of federal power. This is an excellent question that requires a

two-step answer. Under the holding of Lopez-Morrison, Congress cannot use the

“substantial affect” theory to reach wholly intrastate noneconomic

activity–such as the noneconomic activity involved here–wholly apart from the

existence of state laws authorizing the behavior. (Apart from contending that

this IS economic activity,) the government asserts an exception, based on a

sentence in Lopez, that permits Congress to reach wholly intrastate, NONeconomic

activity if it is ESSENTIAL to a larger regulatory scheme that could be undercut

if the activity was not regulated. Here is where the existence of state laws

becomes pertinent for two reasons: (1) Because it is NOT essential to reach a

class of activities that the states have authorized and separated from

interstate commerce, and (2) when we are this far beyond regulating interstate

commerce, the use of any such exception would be “improper” (under the Necessary

and Proper Clause) if it interferes with the exercise of the traditional core

police power of states to protect the health of its citizens–a power that

Congress lacks. If, however, this exception is broad enough to reach the

activities involved here (or if this activity is deemed “economic”), then there

will NEVER be another successful Commerce Clause challenge in the Courts of

Appeals, as statutes will ALWAYS be found to be “essential to a larger

regulatory scheme” and Lopez and Morrison will be limited to their facts.