1 MATTHEW S. PAPPAS (SBN: 171860) CHARLES M. FARANO...

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P L A I N T I F F S ’ F O U R T H R E Q U E S T F O R J U D I CI A L NOT I C E

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MATTHEW S. PAPPAS (SBN: 171860) CHARLES M. FARANO (SBN: 86915) DAVID R. WELCH (SBN: 251693) 22641 Lake Forest Drive, #B5-107 Lake Forest, CA 92630 Phone: (949) 382-1485 Facsimile: (949) 242-2605 E-Mail: [email protected] Attorneys for Plaintiffs

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

MARLA JAMES; KATHERINE ALDRICH; and VICTORIA PAPPAS, Plaintiffs,

v.

UNITED STATES OF AMERICA; CITY OF COSTA MESA, CALIFORNIA; CITY OF LAKE FOREST, CALIFORNIA; and ERIC HOLDER, in his capacity as Attorney General of the United States, Defendants.

No.: SACV 12-00280 AG (MLGx) PLAINTIFFS’ FOURTH REQUEST FOR JUDICIAL NOTICE Date: March 12, 2012 Time: 10:00 A.M. Hon. Judge Andrew Guilford

FOURTH REQUEST FOR JUDICIAL NOTICE

The Plaintiffs respectfully request, pursuant to Federal Rule of Evidence 201, that

the Court take notice of Exhibits 1 through 7 included with this request.

Exhibit 1: Huffington Post article, “Lawmakers in 5 States Tell Feds to Back Off

Medical Marijuana Laws,” April 2, 2012, Lucia Graves, Reporter.

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Case 8:12-cv-00280-AG-MLG Document 19 Filed 04/03/12 of 54 Page ID #:290

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Exhibit 2: San Francisco Chronicle article, “Feds raid Oaksterdam University,

founder’s home,” April 3, 2012, Matthei Kuruvila, Reporter.

Exhibit 3: New York Daily News article, “Mega medical marijuana store,

WeGrow, opens in D.C., April 1, 2012, Brian Browdie, Reporter.

Exhibit 4: New York Times article, “House Approves Bill That Would Ease

Federal Grip on Washington,” December, 9, 2009, Ian Urbina, Reporter.

Exhibit 5: ABC News/Washington Post poll, “High Support for Medical

Marijuana,” January 18, 2010, ABC News/Washington Post/Discovery Channel.

Exhibit 6: Cato Supreme Court Review, “A False Dawn for Federalism: Clear

Statement Rules after Gonzales v. Raich,” September, 2006, Ilya Somin, Author.

Exhibit 7: Pages 1, 5, 6, 12, and 15 of the Government’s Opposition Brief in

Sibley v. Obama, 11-00919 (JDB) (Dist. Col. USDC) 2011.

BASIS FOR REQUESTING JUDICIAL NOTICE

Judicial notice is appropriate for each of the items submitted by the Plaintiffs

pursuant to Fed. R. Evid. 201. Under Rule 201(b), the Court may take judicial notice of

any matter “not subject to reasonable dispute in that it is either (1) generally known

within the territorial jurisdiction of the trial court or (2) capable of accurate and ready

determination by resort to sources whose accuracy cannot reasonably be questioned.”

Judicial notice may be taken at any stage of the proceeding. Fed. R. Evid. 201(f); Lowry

v. Barnhart, 329 F.3d 1019, 1024 (9th Cir. 2003); Bryant v. Carleson, 444 F.2d 353, 357-

58 (9th Cir. 1971). A Federal Court takes judicial notice of facts “if requested by a party

and supplied with the necessary information.” Fed. R. Evid. 201(d).

EXHIBITS 1 THROUGH 5

Exhibits 1 through 5 are media articles. As a general rule, the Court may take

judicial notice of the content of media articles. See, e.g., League of United Latin

American Citizens v. Wilson, 131 F.3d 1297, 1305 (9th Cir. 1997) (quoting news articles

concerning legal challenge filed to block the implementation of a state law); Heliotrope

Gen., Inc. v. Ford Motor Co., 189 F.3d 971, 981 (9th Cir. 1999) (taking judicial notice of


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information contained in news articles); Ieradi v. Mylan Laboratories, Inc., 230 F.3d 594,

597-98 (3rd Cir. 2000). The media articles were obtained from the official websites of

each media entity1.

EXHIBIT 6

Exhibit 6 is an article titled, “A False Dawn for Federalism: Clear Statement Rules

after Gonzales v. Raich” published by the Cato Supreme Court Review. The Court may

take judicial notice of information appearing on a website2. Cota v. Maxwell-Jolly, 688

F. Supp. 2d 980, 998 (N.D. Cal. 2010). The article is not subject to reasonable dispute

and its authenticity as well as accuracy is not in question.

EXHIBIT 7

Exhibit 7 is pages 1, 5, 6, 12, and 15 of the Government’s Opposition Brief in

Sibley v. Obama, 11-00919 (JDB) (Dist. Col. USDC) 2011. Courts may take judicial

notice of their own files, as well as the files of other courts of competent jurisdiction,

including briefs, pleadings, and rulings. See, e.g., Reyn’s Pasta Bella, LLC v. Visa USA,

Inc., 442 F.3d 741, 746 n.6 (9th Cir. 2006) (taking judicial notice of briefs in another

court).

CONCLUSION

The authenticity and content of the exhibits under submission are not subject to

any reasonable dispute because they are capable of accurate and ready determination by

reliable sources. In sum, the Court may properly take judicial notice of the above-

referenced documents.

April 3, 2012 _________________________________ Matthew Pappas Attorney for Plaintiffs

1 http://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2012/04/02/BABJ1NTK9T.DTL&tsp=1, http://www.nydailynews.com/life-style/health/mega-medical-marijuana-store-wegrow-opens-article-1.1054140?localLinksEnabled=false, and http://www.huffingtonpost.com /2012/04/02/lawmakers-in-5-states-tell-feds-medical-marijuana_n_1397811.html?ref=politics 2 http://www.jdsupra.com/post/documentViewer.aspx?fid=b9c59f48-1d24-4207-b586-6f9f3a406894


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PROOF OF SERVICE

I, Matthew Pappas, declare as follows:

I am over the age of 18 and a citizen of the United States. I am not a party to this

action. On April 3, 2012, I served a copy of the Plaintiffs’ Fourth Request for Judicial

Notice in James, et al. v. United States, et al., No. SACV 12-00280 electronically using

the Court’s ECF system to the CM/ECF recipients as well as via e-mail and facsimile to

the e-mail addresses and facsimile phone numbers shown on Attachment “A.”

I declare under penalty of perjury under the laws of the United States of America

that the foregoing is true and correct.

EXECUTED this 3rd day of April, 2012 at Lake Forest, CA:

____________________________ Matthew S. Pappas Attorney for Plaintiffs


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ATTACHMENT “A” (CERTIFICATE OF SERVICE)

Via ECF: All parties that receive service through the ECF system in this case. Via E-Mail and Facsimile: United States of America: Ms. Kathryn Wyer Department of Justice [email protected] Facsimile: (202) 616-8470 Hon. Eric Holder: Mr. Eric Holder U.S. Attorney General [email protected] Facsimile: (213) 894-0141 Costa Mesa: Mr. James Touchstone [email protected] Facsimile: (714) 446-1448 Lake Forest: Mr. Jeff Dunn [email protected] Facsimile: (949) 260-0972


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EXHIBIT 1


The letter -- signed by Assemblyman Tom Ammiano (D-Calif.), Sen. Jeanne Kohl-Welles (D-Wash.), Rep. Antonio Maestas (D-N.M.), Sen. Cisco McSorley (D-N.M.), Assemblyman Chris Norby (R-Calif.), Rep. Deborah Sanderson (R-Maine) and Sen. Pat Steadman (D-Colo.) -- comes directly on the heels of in the heart of California's pot a federal raid legalization movement: medical marijuana training school Oaksterdam University in downtown Oakland, where U.S. Drug Enforcement Administration officials on Monday blocked off doors with yellow tape and carried off trash bags full of unknown substances to a nearby van. An IRS spokeswoman could not comment on the raid except to say the agents had a federal search warrant. The lawmakers called on President Obama to live up to his campaign promise to leave the regulation of medical marijuana to the states, adding raids would only "force patients underground" into the illegal drug market.

The president as a candidate promised to maintain a hands-off approach toward pot clinics that adhere to state law. At a 2007 town hall meeting in Manchester, N.H., Obama said raiding patients who use marijuana for medicinal purposes "makes no sense." At another town hall in Nashua, N.H., he said the Justice Department's prosecution of medical marijuana users was "not a good use of our resources." Yet the number of Justice Department raids on marijuana dispensaries has continued to rise.

Read the full letter here:

Over the last two decades, 16 states and the District of Columbia have chosen to depart from federal policy and chart their own course on the issue of medical marijuana, as states are entitled to do under our federalist system of government. These states have rejected the fallacy long promoted by the federal government -- that marijuana has absolutely no accepted medical use and that seriously ill people must choose between ignoring their doctors' medical advice or risking arrest and prosecution. They have stopped using their scarce law enforcement resources to punish patients and those who care for them and have instead spent considerable resources and time crafting programs that will provide patients with safe and regulated access to medical marijuana.

States with medical marijuana laws have chosen to embrace an approach that is based on science, reason, and compassion. We are lawmakers from these states.

Our state medical marijuana laws differ from one another in their details, such as which patients qualify for medical use; how much marijuana patients may possess; whether patients and caregivers may grow marijuana; and whether regulated entities may grow and sell marijuana to patients. Each of our laws, however, is motivated by a desire to protect seriously ill patients from criminal penalties under state law; to provide a safe and reliable source of medical marijuana; and to balance and protect the needs of local communities and other residents in the state. The laws were drafted with considered thoughtfulness and


care, and are thoroughly consistent with the American tradition of using the states as laboratories for public policy innovation and experimentation.

Unfortunately, these laws face a mounting level of federal hostility and confusing mixed messages from the Obama Administration, the Department of Justice, and the various United States Attorneys. In 2008, then candidate Obama stated that as President, he would not use the federal government to circumvent state laws on the issue of medical marijuana. This promise was followed up in 2009 by President Obama with a Department of Justice memo from former Deputy Attorney General David W. Ogden stating that federal resources should not generally be focused "on individuals whose actions are in clear and unambiguous compliance with existing state laws providing for the medical use of marijuana." This provided welcome guidance for state legislators and administrators and encouraged us to move forward with drafting and passing responsible regulatory legislation.

Nonetheless, the United States Attorneys in several states with medical marijuana laws have chosen a different course. They have explicitly threatened that federal investigative and prosecutorial resources "will continue to be directed" towards the manufacture and distribution of medical marijuana, even if such activities are permitted under state law. These threats have generally been timed to influence pending legislation or encourage the abandonment of state and local regulatory programs. They contradict President Obama's campaign promise and policy his first year in office and serve to push medical marijuana activity back into the illicit market.

Most disturbing is that a few United States Attorneys warn that state employees who implement the laws and regulations of our states are not immune from criminal prosecution under the federal Controlled Substances Act. They do so notwithstanding the fact that no provision exists within the Controlled Substances Act that makes it a crime for a state employee to enforce regulations that help a state define conduct that is legal under its own state laws.

Hundreds of state and municipal employees are currently involved in the licensing and regulation of medical marijuana producers and providers in New Mexico, Colorado, Maine, and California, and have been for years. The federal government has never threatened, much less prosecuted, any of these employees. Indeed, the federal government has not, to our knowledge, prosecuted state employees for performing their ministerial duties under state law in modern history. It defies logic and precedent that the federal government would start prosecuting state employees now.

Recognizing the lack of any real harm to state employees, a number of states have moved forward. New Jersey Governor Chris Christie drew on his own experience as a former United States Attorney in deciding that New Jersey state workers were not realistically at risk of federal prosecution in his decision to move forward implementing New Jersey’s medical marijuana program. Rhode Island, Vermont, Arizona, and the District of Columbia are also in the process of implementing their state laws.


Nonetheless, the suggestion that state employees are at risk is have a destructive and chilling impact. Washington Governor Christine Gregoire vetoed legislation to regulate medical marijuana in her state and Delaware Governor Jack Markell suspended implementation of his state's regulatory program after receiving warnings from the United States Attorneys in their states about state employees. Additionally, a number of localities in California ended or suspended regulatory programs after receiving similar threats to their workers.

We, the undersigned state legislators, call on state and local officials to not be intimidated by these empty federal threats. Our state medical marijuana programs should be implemented and move forward. Our work, and the will of our voters, should see the light of day.

We call on the federal government not to interfere with our ability to control and regulate how medical marijuana is grown and distributed. Let us seek clarity rather than chaos. Don’t force patients underground, to fuel the illegal drug market.

And finally, we call on President Obama to recommit to the principles and policy on which he campaigned and asserted his first year in office. Please respect our state laws. And don't use our employees as pawns in your zealous and misguided war on medical marijuana.

Assemblymember Tom Ammiano (D-CA)

Senator Jeanne Kohl-Welles (D-WA)

Representative Antonio Maestas (D-NM)

Senator Cisco McSorley (D-NM)

Assemblymember Chris Norby (R-CA)

Representative Deborah Sanderson (R-ME)

Senator Pat Steadman (D-CO)


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"This is really an attack on regulation," said Dale Sky Jones, executive chancellor of Oaksterdam University. Without regulation, she said, "what's going to change is who is selling it, the good guys or the bad guys."

Lee and four employees were temporarily detained, according to Oaksterdam officials.

Little explanation

Arlette Lee, an IRS spokeswoman, said she could not say why the agents were there other than to confirm that they were serving a federal search warrant.

Messages left late Monday for the DEA and the Marshals Service were not returned.

Supporters of the Oaksterdam founder said they believe he is being targeted because of his high profile in California's medical marijuana industry. He has advocated taxing and regulating medical cannabis for years, and his efforts have helped make Oakland the industry's statewide political seat of power.

In 2003, the city became the first in the nation to regulate dispensaries, and Lee obtained one of the initial four dispensary permits for Coffeeshop Blue Sky. The next year, Oakland voters passed Measure Z, making possession of small amounts of pot the lowest priority for police, and in 2009 Oakland voters passed a measure to tax and regulate cannabis businesses - the first such tax in the country. Lee helped push for both measures.

Lee's operations may not be the biggest in Oakland - that would be Harborside Health Center, which took in $21 million in sales in 2009 and had triple the income of the city's other three dispensaries combined that year.

Political motive?

Lee supporters said they see a political motive in Monday's crackdown.

It was Lee, after all, who in 2010 bankrolled Proposition 19, a statewide measure which would have legalized adult use of marijuana, regardless of medical necessity. Some 46 percent voted for the measure, the highest ever for any general pot legalization proposal in the country.

"They want to make sure he never again has the resources to do that," said Stephen DeAngelo, Harborside's co-founder and executive director. "Rich is not a profiteer. He is not a renegade ... Richard Lee is the most legitimate and real person in this industry."


Harborside, which DeAngelo said paid more than $3 million in local, state and federal taxes last year, is in litigation with the IRS about whether it should pay an additional $2.5 million for 2007 and 2008.

"They want to tax us out of existence," DeAngelo said. Monday's raids, he said, would not change Harborside's commitment to providing medical marijuana to its patients.

All of Monday's raid locations were at or near 17th and Broadway, and hundreds of Oaksterdam supporters swarmed there in protest over the course of the day. The demonstrators openly smoked joints and bongs in defiance, shut down streets, pounded on unmarked police vehicles and heckled agents.

Protesters arrested

One agent who shoved several protesters got shoved back by a protester on 17th street near Franklin Street. Several agents then tackled the protester and arrested him. At least one other demonstrator was also arrested.

Councilwoman Rebecca Kaplan came to watch the raids and called them a waste of resources. Oakland's dispensaries, which have a bevy of regulations, have not had the crime or nuisance problems of other cities, and bring in needed revenue, she said.

"Strong oversight and strong rules can succeed," she said. "Maybe the feds can go to other cities that do have problems."

The U.S. attorney in San Francisco, Melinda Haag, and her three counterparts in the state said in October that they would aggressively prosecute many marijuana dispensaries as profit-making criminal enterprises. Since then, three dispensaries in San Francisco, one in Marin County and 50 in the city of Sacramento have closed under pressure, along with about 150 others throughout California.

Haag has said her concern is pot stores that go beyond medical use or operate near schools or playgrounds.

"People are using the cover of medical marijuana to make extraordinary amounts of money," Haag said in October. "None is immune from action by the federal government."

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Mega medical marijuana store,WeGrow, opens in D.C.

Retailer sells equipment, supplies for indoor growing of marijuana plants

BY BRIAN BROWDIE / NEW YORK DAILY NEWS Sunday, April 1, 2012, 3:09 PM

WeGrow, a medical marijuana supply store, displayed a hydroponic plant growing system during Friday’s grand opening of its Washington, DC.

D.C. is going to pot.

WeGrow, a retailer that bills itself as a one-stop shop for marijuana cultivators, opened its first East Coast location Friday about four miles from The White House.

The grand opening coincided with the city's selection of six companies eligible to cultivate cannabis in the District of Columbia as part of a program passed in 2010 that permits the sale of medical marijuana to patients who have a prescription from a physician.

EXHIBIT 3


Though WeGrow does not sell pot or seeds, the superstore offers equipment and supplies for indoor growing, including lights, fertilizer, drying racks and trimming machines, along with classes on how to grow medicinal weed.

"I find people are really thankful I'm advancing the cause of medical cannabis," Alex Wong, the store's owner, told the Daily News. "Anyone from Maine to Florida who needs hydroponic equipment, I'm here to provide it for them." Wong, a New York City native who once worked on Wall Street, says his mother's death from cancer at age 59 inspired him to learn more about marijuana's medical applications.

"She had to go through the chemo and loss of appetite and all the bad things that happen," he said.

Though federal law prohibits the cultivation, sale or use of marijuana, 17 states and the District of Columbia have legalized its use to relieve severe pain and nausea that can result from cancer, glaucoma, HIV/AIDS and other conditions.

Seventy percent of Americans favor permitting doctors to prescribe marijuana to relieve pain and suffering, according to a 2010 Gallup poll.

“I am thrilled that the District of Columbia is one step closer to having the medical marijuana program available for those patients most in need,” Dr. Mohammad Akhter, Director of the D.C. Department of Health, said in a statement.

Patients in D.C. can't puff away just yet. Companies the city has selected to grow pot still must obtain business licenses and other regulatory approvals.

The city is expected to announce dispensary locations in June, The Washington Post reported.


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That rider came after 69 percent of voters in a referendum supported medical marijuana. The new legislation removes that prohibition.

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This article appeared in print on December 11, 2009, on page A25 of the New York edition.


ABC NEWS/WASHINGTON POST POLL: MEDICAL MARIJUANAEMBARGOED FOR RELEASE AFTER 5 p.m. Monday, Jan. 18, 2010

High Support for Medical Marijuana Eight in 10 Americans support legalizing marijuana for medical use and nearly half favor decriminalizing the drug more generally, both far higher than a decade ago.

With New Jersey this week poised to become the 14th state to legalize medical marijuana, 81 percent in this national ABC News/Washington Post poll support the idea, up from an already substantial 69 percent in 1997. Indeed the main complaint is with restrictions on access, as in the New Jersey law.

Fifty-six percent say that if it’s allowed, doctors should be able to prescribe medical marijuana to anyone they think it can help. New Jersey’s measure, which is more restrictive than most, limits prescriptions to people with severe illnesses. State health officials can add to the list.

�

DECRIMINALIZE? – Apart from medical marijuana, there have been recent efforts to decriminalize marijuana more broadly in some states. A preliminary vote on one such measure is to be held in the Washington state Legislature this week. In California organizers say they’ve

EXHIBIT 5


collected enough signatures to hold a statewide referendum on the issue next fall. And a separate proposal in California to legalize and tax the drug cleared a legislative committee last week. A Field poll there in April found 56 percent support for the idea, which its backers say would raise $1.3 billion a year.

Nationally, this survey finds 46 percent support for legalizing small amounts of marijuana for personal use – the same as it was last spring, and well above its level in past years, for example 39 percent in 2002 and 22 percent in 1997.

��GROUPS – Age is a factor. Just 23 percent of senior citizens favor legalizing marijuana for personal use; that jumps to 51 percent of adults under age 65. There are political and ideological differences as well: Thirty percent of conservatives and 32 percent of Republicans favor legalization, compared with 49 percent of independents, 53 percent of Democrats and more than half of moderates and liberals alike (53 and 63 percent, respectively).

Medical marijuana, for its part, receives majority support across the political and ideological spectrum, from 68 percent of conservatives and 72 percent of Republicans as well as 85 percent of Democrats and independents and about nine in 10 liberals and moderates. Support slips to 69 percent among seniors, vs. 83 percent among all adults under age 65.


There are similar divisions on whether medical marijuana should be restricted or made available to anyone a doctor thinks it would help. Overall, 56 percent, as noted, prefer no restrictions, while 21 percent say it should be limited to terminally ill patients and an additional 21 percent say it should be limited to those with serious but not necessarily terminal illnesses.

Liberals are 23 points more apt than conservatives, and Democrats 20 points more likely than Republicans, to oppose restrictions. There’s also a difference between the sexes, with men 10 points more likely than women to say the doctor should decide.

But the main difference is whether people think marijuana should be permitted for medical uses in the first place. Among supporters, 63 percent would rely on the doctor’s discretion. Among those who oppose medical marijuana, 75 percent say that if it is allowed, it should be limited to seriously or terminally ill patients.

New Jersey passed its medical marijuana law this month and outgoing Gov. Jon Corzine is expected to sign it tomorrow morning, his last day in office. Medical marijuana first became legal in California in 1996, followed by Alaska, Colorado, Hawaii, Maine, Michigan, Montana, Nevada, New Mexico, Oregon, Rhode Island, Vermont and Washington state.

METHODOLOGY – This ABC News/Washington Post poll was conducted by telephone Jan. 12-15, 2010, among a random national sample of 1,083 adults, including landline and cell-phone-only respondents, with an oversample of African Americans (weighted to their correct share of the population) for a total of 153 black respondents. Results for the full sample have a 3.5-point error margin. Click here for a detailed description of sampling error. Sampling, data collection and tabulation by TNS of Horsham, PA.

Analysis by Gary Langer.

ABC News polls can be found at ABCNEWS.com at http://abcnews.com/pollingunit

Media contact: Cathie Levine, (212) 456-4934.

Full results follow (*= less than 0.5 percent).

1-40 previously released or held for release.

41. In general, do you favor or oppose legalizing the possession of small amounts of marijuana for personal use?

Favor Oppose No opinion 1/15/10 46 51 2 4/24/09 46 52 2 10/24/02* 39 53 85/27/97 22 75 38/26/86 25 74 15/19/86 22 77 14/28/86 23 75 13/24/86 21 78 15/13/85 26 72 2


*Time/CNN: "Do you favor or oppose the legalization of marijuana? (IF FAVOR) What about in small amounts, for example three ounces or less? Do you favor or oppose the legalization of marijuana in small amounts?"

42. Regardless of what you think about the personal non-medical use of marijuana, do you think doctors should or should not be allowed to prescribe marijuana for medical purposes to treat their patients?

Should Should not No opinion1/15/10 81 18 1 5/27/97 69 27 4

43. If doctors are allowed to prescribe marijuana to patients, should it be limited to patients who are terminally ill and near death; or also allowed for patients who have serious but not fatal illnesses; or should it be allowed for any patient the doctor thinks it could help?

Terminally Serious/ Any No ill not fatal patient opinion1/15/10 21 21 56 2 5/27/97 29 13 52 6

***END***


A False Dawn for Federalism:Clear Statement Rules afterGonzales v. Raich

Ilya Somin*

IntroductionThe Supreme Court’s 2005 decision in Gonzales v. Raich1 severely

undermined hopes that the Court might enforce meaningful consti-tutional limits on congressional power.2 In the aftermath of Raich,some observers hoped and others feared that judicial limits on fed-eral power might be resuscitated in Gonzales v. Oregon3 and Rapanosv. United States,4 the two most significant federalism cases of the2005–2006 term. The appointment of two new conservative justices—Chief Justice Roberts and Justice Alito—may have increased thechance of departing from precedent, though the justices these new-comers replaced had both dissented in Raich.

Oregon and Rapanos could potentially have constrained the virtu-ally limitless Commerce Clause power that the Supreme Courtallowed the federal government to claim in Raich. A less high-profilecase, Arlington Central School District v. Murphy,5 addressed the scope

*Assistant Professor of Law, George Mason University School of Law; B.A., AmherstCollege, 1995; J.D., Yale Law School, 2001; M.A., Harvard University Department ofGovernment, 1997; Ph.D. expected. For helpful suggestions and comments, I wouldlike to thank Jonathan Adler, Douglas Laycock, Marty Lederman, Mark Moller, JohnCopeland 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 (forthcoming2006) (Symposium on the War on Drugs), available at http://papers.ssrn.com/sol3/papers.cfm?abstract id�916965 (visited July 24, 2006).

3 126 S. Ct. 904 (2006).4 126 S. Ct. 2208 (2006).5 126 S. Ct. 2455 (2006).

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The Supreme Court’s 2005 decision in Gonzales v. Raich1 severelyundermined hopes that the Court might enforce meaningful consti-tutional limits on congressional power.2

Oregon and Rapanos could potentially have constrained the virtu-ally limitless Commerce Clause power that the Supreme Courtallowed the federal government to claim in Raich.

EXHIBIT 6


CATO SUPREME COURT REVIEW

of Congress’ power to set conditions on grants to state governmentsunder the Spending Clause. Although the federal government suf-fered setbacks in all three cases, none of them actually imposessignificant constitutional limitations on congressional power.

Oregon, Rapanos, and Arlington all involved challenges to asser-tions of federal regulatory authority that might run afoul of ‘‘clearstatement rules.’’ These doctrines require Congress to clearly indi-cate its intent in the text of a statute before courts can interpret itin a way that ‘‘raises constitutional problems,’’ impinges on an areaof traditional state authority, or imposes conditions on state govern-ments that accept federal funds.

Part I briefly reviews the Raich decision and explains how it openedthe door to virtually unlimited federal power under the CommerceClause. I also briefly discuss a parallel precedent that gave Congressequally unconstrained power under the Spending Clause, Sabri v.United States.6

Part II shows that the major federalism cases of the 2005–2006term fail to impose any constitutional limits on federal power, andalso do not extend the reach of clear statement rules. Thus, the legacyof Raich remains intact. Indeed, all three decisions actually reinforcethat legacy by emphasizing that Congress does not lack the powerto regulate almost any activity, but merely failed to exert it to theutmost in these specific instances.

Part III argues that clear statement rules are neither a viable nor anadequate substitute for substantive judicial limits on federal power.Raich poses a serious threat to the longterm viability of federalismclear statement rules. If congressional Commerce Clause authorityis virtually unlimited, it is difficult to see how any assertion ofthat power can trigger a clear statement requirement by raisingconstitutional problems or by impinging on a policy area reservedto the states.

The last section of Part III shows that clear statement rules are aninadequate substitute for judicial enforcement of substantive limitson federal power, even if the doctrinal difficulties created by Raichcan be overcome. Clear statement rules sometimes protect the inter-ests of state governments, but that is very different from protectingconstitutional federalism. Indeed, state governments will often find

6 541 U.S. 600 (2004).

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d explains how it openedthe door to virtually unlimited federal power under the CommerceClause. I


A False Dawn for Federalism

it in their interest to support the expansion of federal power; courtsapplying clear statement rules cannot prevent this.

Indeed, clear statement rules may actually facilitate the expansionof federal power rather than restrain it. By reducing the chance thatstate governments will be blindsided by unexpected assertions offederal regulatory authority, they may make it more likely that stateswill collaborate in the expansion of federal power. The argumentthat clear statement rules can replace substantive judicial protectionof federalism rests on the mistaken assumption that constitutionalfederalism is ultimately about protecting the interests of state gov-ernments rather than those of the general population.

I. Judicial Endorsement of Unlimited Federal Power

The Supreme Court’s recent federalism decisions have embraceda nearly unlimited conception of federal power. In the CommerceClause field, this result arises from the Court’s well-known decisionin Gonzales v. Raich.7 Less well-known is the Court’s 2004 decisionin Sabri v. United States, which produced a similar outcome withrespect to the Spending Clause.

A. Gonzales v. Raich and the Unlimited Commerce Clause Power8

The Commerce Clause gives Congress the power to ‘‘regulatecommerce . . . among the several States.’’9 Until the New Deal consti-tutional revolution of the 1930s, the Supreme Court generally didnot treat this grant of power as an unlimited license for Congressto regulate any activity with even a remote connection to interstate

7 125 S. Ct. 2195 (2005).8 The analysis of Raich in this section is a condensed version of that in Somin,

Federalism as a Casualty of the War on Drugs, supra note 2, at 4–13. For other analysesreaching similar conclusions about Raich, see Jonathan H. Adler, Is Morrison Dead?Assessing a Supreme Drug (Law) Overdose, 9 Lewis & Clark L. Rev. 751, 753–54(2005) (contending that Raich effectively repudiates Lopez and Morrison); and GlennH. Reynolds & Brannon P. Denning, What Hath Raich Wrought? Five Takes, 9 Lewis& Clark L. Rev. 915 (2005) (same). For arguments that Raich leaves greater room forjudicial limitation of federal power, see Randy E. Barnett, Foreword: Limiting Raich,9 Lewis & Clark L. Rev. 743 (2005); and George D. Brown, Counterrevolution? NationalCriminal Law after Raich, 66 Ohio St. U. L.J. 947, 974–82 (2005) (arguing that Raichmerely refuses to extend Lopez and Morrison rather than cutting back on them).

9 U.S. Const. art. I, § 8, cl. 3.

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The Supreme Court’s recent federalism decisions have embraceda nearly unlimited conception of federal power. In the CommerceClause field, this result arises from the Court’s well-known decisionin Gonzales v. Raich.7 Less well-known is the Court’s 2004 decisionin Sabri v. United States, which produced a similar outcome withrespect to the Spending Clause.

Until the New Deal consti-tutional revolution of the 1930s, the Supreme Court generally didnot treat this grant of power as an unlimited license for Congressto regulate any activity with even a remote connection to interstate



commerce.10 The Court’s famous 1824 decision in Gibbons v. Ogden,11

often described as a precursor to the modern conception of virtuallyunlimited federal power,12 in fact defined congressional CommerceClause authority in a relatively narrow way.13 A series of decisionsduring the New Deal period expanded congressional power toencompass any activity that substantially affects interstate com-merce, even if the regulated action did not itself involve interstatetrade in goods or services. Most notably, the 1942 case of Wickardv. Filburn14 upheld a federal law limiting wheat-growing even in acase where the wheat in question never entered interstate commerce,but was instead consumed on the same farm where it was grown.15

After Wickard, the Supreme Court virtually abandoned efforts toconstrain Congress’ Commerce Clause authority until the RehnquistCourt’s decisions in United States v. Lopez16 and United States v. Mor-rison.17 The former struck down a provision of the Gun Free SchoolZones Act (GFSZA), which forbade gun possession in close proxim-ity to schools, while the latter invalidated a section of the ViolenceAgainst Women Act (VAWA) that created a federal cause of actionfor victims of violent attacks motivated by gender bias. Lopez andMorrison rekindled debate over the proper scope of federal power,but left the actual extent of judicial review in this area unclear.

10 See, e.g., United States v. E.C. Knight, 156 U.S. 1 (1895) (holding that the CommerceClause does not give Congress the power to break up an alleged sugar producercartel); Hammer v. Dagenhart, 247 U.S. 251 (1918) (holding that the clause does notgive Congress the power to regulate child labor).

11 Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1 (1824).12 See, e.g., United States v. Lopez, 514 U.S. 549, 603 (1995) (Souter, J., dissenting)

(citing the ‘‘the Court’s recognition of a broad commerce power in Gibbons v. Ogden’’);Wickard v Filburn, 317 U.S. 111, 120 (1942) (claiming that ‘‘Chief Justice Marshall’sopinion [in Gibbons] described the Federal commerce power with a breadth neveryet exceeded’’).

13 See Somin, Federalism as a Casualty of the War on Drugs, supra note 2, at 30–32.14 Wickard v. Filburn, 317 U.S. 111 (1942).15 For a detailed history of the case, see Jim Chen, Filburn’s Legacy, 52 Emory L.J.

1719 (2003); and Jim Chen, Filburn’s Forgotten Footnote—Of Farm Team Federalismand Its Fate, 82 Minn. L. Rev. 249 (1997).

16 514 U.S. 549 (1995).17 529 U.S. 598 (2000).

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commerce.

Most notably, the 1942 case of Wickardv. Filburn14 upheld a federal law limiting wheat-growing even in acase where the wheat in question never entered interstate commerce,but was instead consumed on the same farm where it was grown.15

After Wickard, the Supreme Court virtually abandoned efforts toconstrain Congress’ Commerce Clause authority until the RehnquistCourt’s decisions in United States v. Lopez16 and United States v. Mor-rison.17



The two cases outlined three areas of congressional CommerceClause authority:

1. Regulation of ‘‘the use of the channels of interstate commerce.’’

2. ‘‘Regulat[ion] and protect[ion] [of] the instrumentalities ofinterstate commerce, or persons or things in interstate com-merce, even though the threat may come only from intra-state activities.’’

3. ‘‘[R]egulat[ion] [of] . . . those activities that substantially affectinterstate commerce.’’18

The most expansive category—and the only one at issue in Lopez,Morrison, and Raich—is the third: congressional power over activitiesthat ‘‘substantially affect interstate commerce.’’ The Lopez-Morrisonmajority sought to confine this category by limiting the government’sability to use ‘‘aggregation’’ analysis in claiming that virtually anyactivity that affects interstate commerce is fair game if its impact isanalyzed in conjunction with that of other similar actions. Lopezcabined the aggregation principle by focusing on the noncommercialaspects of the activity regulated by the GFSZA. Such gun possessionhad ‘‘nothing to do with ‘commerce’ or any sort of economic enter-prise, however broadly one might define those terms.’’19 Therefore,aggregation analysis could not be applied to it because doing sowould inevitably lead to such a broad interpretation of federal powerthat the Court would be ‘‘hard pressed to posit any activity by anindividual that Congress is without power to regulate.’’20 Althoughthe Court conceded that ‘‘noneconomic’’ activity could still be regu-lated as part of a broader ‘‘regulatory scheme,’’ such inclusion wouldhave to be ‘‘essential’’ to the broader program.21

The Morrison decision went farther than Lopez in suggesting that‘‘noneconomic’’ activity cannot be subjected to aggregation analysis.It struck down the relevant provision in VAWA even in the face ofconsiderable evidence mustered by Congress indicating that vio-lence against women had a substantial aggregate effect on interstate

18 Lopez, 514 U.S. at 558–59; see also Morrison, 529 U.S. at 609.19 Lopez, 514 U.S. at 560.20 Id. at 564.21 Id. at 561.

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The Lopez-Morrisonmajority sought to confine this category by limiting the government’sability to use ‘‘aggregation’’ analysis in claiming that virtually anyactivity that affects interstate commerce is fair game if its impact isanalyzed in conjunction with that of other similar actions.



commerce.22 Chief Justice Rehnquist’s opinion for the Court empha-sized its ‘‘reject[ion]’’ of ‘‘the argument that Congress may regulatenoneconomic, violent criminal conduct based solely on that con-duct’s aggregate effect on interstate commerce.’’23 While the Courtindicated that it ‘‘need not adopt a categorical rule against aggregat-ing the effects of any noneconomic activity in order to decide thesecases,’’24 it emphasized that previous Supreme Court cases had onlyused aggregation to uphold ‘‘regulation of intrastate activity onlywhere that activity is economic in nature.’’25

In 2005, the apparent limitations on federal authority establishedby Lopez and Morrison were virtually eviscerated in Gonzales v.Raich.26 Raich upheld the application of the Controlled SubstancesAct’s (CSA) ban on marijuana possession to cases where homegrownmarijuana was used for medical purposes, as permitted by Californialaw, and in a manner unconnected with any commercial activity.27

Raich undermined the Lopez-Morrison framework for limiting fed-eral power in three separate ways. First, Raich adopts a definitionof ‘‘economic’’ that is almost limitless, thereby ensuring that virtuallyany activity can be ‘‘aggregated’’ to produce the ‘‘substantial[][e]ffect [on] interstate commerce’’ required to legitimate congres-sional regulation under Lopez and Morrison.28 According to the Raichmajority, the word ‘‘economic’’ ‘‘refers to ‘the production, distribu-tion, and consumption of commodities.’ ’’29 Almost any human activ-ity involves the ‘‘distribution’’ or ‘‘consumption’’ of a commodity.Even having dinner at home surely involves the ‘‘consumption’’ ofthe commodity of food, while giving a birthday present to a friendentails commodity ‘‘distribution.’’

22 See Morrison, 529 U.S. at 628–29 (Souter, J., dissenting) (describing the ‘‘mountainof data assembled by Congress . . . showing the effects of violence against womenon interstate commerce’’).

23 Id. at 617.24 Id. at 613.25 Id.26 125 S. Ct. 2195 (2006).27 See id. at 2200 (describing the facts of the case).28 See Lopez, 514 U.S. at 558–59; see Morrison, 529 U.S. at 609.29 Raich, 125 S. Ct. at 2211 (quoting Webster’s Third New International Dictionary

720 (1966)).

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it emphasized that previous Supreme Court cases had onlyused aggregation to uphold ‘‘regulation of intrastate activity onlywhere that activity is economic in nature.’’2

In 2005, the apparent limitations on federal authority establishedby Lopez and Morrison were virtually eviscerated in Gonzales v.Raich.26

Raich undermined the Lopez-Morrison framework for limiting fed-eral power in three separate ways. First, Raich adopts a definitionof ‘‘economic’’ that is almost limitless, thereby ensuring that virtuallyany activity can be ‘‘aggregated’’ to produce the ‘‘substantial[][e]ffect [on] interstate commerce’’ required to legitimate congres-sional regulation under Lopez and Morrison.28 According to the Raichmajority, the word ‘‘economic’’ ‘‘refers to ‘the production, distribu-tion, and consumption of commodities.’ ’’’299 A



Raich also makes it easier for Congress to impose controls on even‘‘noneconomic’’ activity by claiming that it is part of a broader‘‘regulatory scheme.’’30 Here the Court greatly expanded Lopez’sstatement that Congress can regulate noneconomic activity if it isan ‘‘essential part of a larger regulation of economic activity.’’31 TheRaich majority ignored the Lopez requirement that the regulation ofthe noneconomic activity must be an ‘‘essential’’ part of a ‘‘regulatoryscheme’’ intended to control interstate ‘‘economic activity.’’32 If‘‘essentiality’’ is no longer required, the regulation of almost anyactivity can be claimed to be part of a broader regulatory scheme.Indeed, the government could satisfy the requirement by claimingthat any new regulation of noneconomic activity is just an additionto one of the numerous regulatory programs already in existence.33

Finally, Raich reasserts the so-called ‘‘rational basis’’ test, holdingthat ‘‘[w]e need not determine whether [defendants’] activities, takenin the aggregate, substantially affect interstate commerce in fact,but only whether a ‘rational basis’ exists for so concluding.’’34 Thisholding suggests that even in the rare case where an activity isconsidered ‘‘noneconomic’’ under Raich’s expansive definition of‘‘economic,’’ the regulation is not part of a broader regulatoryscheme, and there is no real substantial effect on interstate commerce,congressional regulation will likely still be upheld if Congress could‘‘rationally’’ conclude that such an effect exists.

30 Id. at 2208–10.31 Lopez, 514 U.S. at 561. This language is quoted in Raich. Raich, 125 S. Ct. at 2210.

However, the Court does not engage in any discussion of the implications of theword ‘‘essential’’ and seems to assume that it is of no significance.

32 Lopez, 514 U.S. at 561 (emphasis added).33 Somin, Federalism as a Casualty of the War on Drugs, supra note 2, at 12.34 Raich, 125 S. Ct. at 2208. The ‘‘rational basis’’ test had been applied in some

pre-Lopez Commerce Clause cases. See, e.g., Hodel v. Virginia Surface Mining &Reclamation Assn., 452 U.S. 264, 276 (1981) (‘‘The court must defer to a congressionalfinding that a regulated activity affects interstate commerce, if there is any rationalbasis for such finding.’’); Katzenbach v. McClung, 379 U.S. 294, 303–04 (1964) (‘‘Wherewe find that the legislators, in light of the facts and testimony before them, have arational basis for finding a chosen regulatory scheme necessary to the protection ofcommerce, our investigation is at an end.’’). But it had been implicitly set aside inLopez and Morrison, which failed to apply it and instead closely scrutinized thegovernment’s rationale for the challenged statutes. See Somin, Federalism as a Casu-alty of the War on Drugs, supra note 2, at 12–13.

119

Raich also makes it easier for Congress to impose controls on even‘‘noneconomic’’ activity by claiming that it is part of a broader‘‘regulatory scheme.’’’30

TheRaich majority ignored the Lopez requirement that the regulation ofthe noneconomic activity must be an ‘‘essential’’ part of a ‘‘regulatoryscheme’’ intended to control interstate ‘‘economic activity.’’3



Taken in combination, these three elements of Raich place nearlyinsurmountable obstacles in the path of efforts to ensure meaningfuljudicial review of congressional exercise of the Commerce Clausepower. After Raich, virtually any activity is considered ‘‘economic,’’virtually any noneconomic activity can still be regulated as part ofa broader regulatory scheme, and any stray activity that does notfall within the first two categories can be swept up under the rationalbasis test.

B. Unlimited Federal Power under the Spending Clause

The Spending Clause gives Congress the power to spend tax reve-nue to ‘‘pay the Debts and provide for the common Defence andthe general Welfare of the United States.’’35 The modern SupremeCourt has generally been highly deferential to congressional effortsto define ‘‘general Welfare’’ broadly. Nonetheless, South Dakota v.Dole,36 the leading modern precedent on the subject, does set criteriathat Congress must meet if it wishes to impose conditions on federalgrants to state governments. Any such conditions must 1) serve the‘‘general welfare’’ under a standard that ‘‘defer[s] substantially tothe judgment of Congress,’’ 2) state any conditions that the statesmust meet in order to acquire the funds ‘‘unambiguously,’’ 3) ensurethat conditions are not ‘‘unrelated to the federal interest in particularnational projects or programs’’ for which the funds were providedto the state, and 4) not violate ‘‘other constitutional provisions.’’37

Furthermore, the Court noted the possibility that federal grantsmight be invalidated if ‘‘the financial inducement offered by Con-gress [is] so coercive as to pass the point at which pressure turnsinto compulsion.’’38

Of the four Dole requirements, only Condition Three—‘‘related-ness’’ to a federal interest—holds out the hope of substantive limitson the scope of federal power as opposed to purely proceduralones. In the aftermath of the Rehnquist Court’s newfound interestin enforcing federalism-based limits on congressional power, some

35 U.S. Const. art. I, § 8, cl. 1.36 483 U.S. 203 (1987).37 Id. at 207–08.38 Id. at 211 (quotation omitted).

120



commentators expected that the Court might use the relatednesstest to set meaningful limits on conditional federal spending.39

Basim Omar Sabri was a Minneapolis real estate developer whoallegedly bribed a city official to ensure that the Minneapolis Com-munity Development Agency (MCDA) would permit him to goforward with his plans to ‘‘build a hotel and retail structure.’’40 Sabriwas charged under 18 U.S.C. § 666(a)(2), which ‘‘imposes federalcriminal penalties’’ on anyone who offers a bribe to a state or localofficial employed by an agency that receives more than $10,000 infederal funds during any one year period.41 The Supreme Courtupheld this application of § 666(a)(2) even under the assumptionthat Sabri’s bribe had no connection to the use of the federal fundsreceived by MCDA. The Court held that it could ‘‘readily disposeof [the] position that, to qualify as a valid exercise of Article I power,the statute must require proof of connection with federal moneyas an element of the offense.’’42 Even if no such connection exists,Congress could still choose to impose conditions because of thefungibility of money:

It is true, just as Sabri says, that not every bribe or kickbackoffered or paid to agents of governments covered by § 666(b)will be traceably skimmed from specific federal payments,or show up in the guise of a quid pro quo for some derelictionin spending a federal grant. . . . But this possibility portendsno enforcement beyond the scope of federal interest, for thereason that corruption does not have to be that limited toaffect the federal interest. Money is fungible, bribed officialsare untrustworthy stewards of federal funds, and corruptcontractors do not deliver dollar-for-dollar value. Liquidityis not a financial term for nothing; money can be drained

39 See, e.g., Lynn Baker, Conditional Federal Spending After Lopez, 95 Colum. L.Rev. 1911, 1962–77 (1995) (arguing that such limitations are a natural extension ofthe Lopez decision); Lynn Baker, The Revival of States’ Rights: A Progress Reportand a Proposal, 22 Harv. J.L. & Pub. Pol’y 95, 102–103 (1998) (compiling evidenceindicating that a majority of the Supreme Court might have been willing to movein that direction). For my own argument for limiting federal grants to state govern-ments, see Ilya Somin, Closing the Pandora’s Box of Federalism: The Case for JudicialRestriction of Federal Subsidies to State Governments, 90 Geo. L.J. 461 (2002).

40 Sabri v. United States, 541 U.S. 600, 602 (2004).41 Id. at 603 (quoting 18 U.S.C. § 666(a)(2)).42 Id. at 605.

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off here because a federal grant is pouring in there. Andofficials are not any the less threatening to the objects behindfederal spending just because they may accept generalretainers. . . . It is certainly enough that the statutes conditionthe offense on a threshold amount of federal dollars definingthe federal interest, such as that provided here, and on abribe that goes well beyond liquor and cigars.43

This fungibility argument seriously undermines any hope thatDole’s third prong might lead to meaningful judicial limits on condi-tional federal spending. After all, virtually any condition can bejustified on the ground that if state or local governments are permit-ted to do X, it could siphon off funds from purpose Y, which thefederal grants are intended to promote. And this would be true evenif there is no connection between X and Y whatsoever beyond themere fact that both agendas are being pursued by a governmentagency receiving federal funds.44

Unlike Raich, which was a 6-3 decision with strong dissents byJustice O’Connor and Justice Thomas,45 Sabri was unanimous, withonly Justice Thomas authoring a concurrence attempting to devisea more limited rationale for allowing the federal criminal case againstSabri to proceed.46 Thus, Sabri was, if anything, an even more decisivesetback for judicial review of federalism than the better-knownRaich decision.

II. Pyrrhic Defeats: Unlimited Federal Power in the2005–2006 Term

In light of Raich and Sabri, the Supreme Court could potentiallyresuscitate judicial enforcement of limits on federal power by over-ruling one or both of these precedents, or at least restricting their

43 Id. at 605–06.44 For a more detailed analysis of Sabri reaching similar conclusions, see Gary

Lawson, Making a Federal Case of It: Sabri v. United States and the Constitution ofLeviathan, 2003–2004 Cato Sup. Ct. Rev. 119 (2004). See also Richard W. Garnett,The New Federalism, The Spending Power and Federal Criminal Law, 89 Cornell L.Rev. 1 (2003) (making similar arguments prior to the Sabri decision).

45 See Gonzales v. Raich, 125 S. Ct. 2195, 2220–29 (2005) (O’Connor, J., dissenting);id. at 2229–39 (Thomas, J., dissenting).

46 See Sabri, 541 U.S. at 610–14 (Thomas, J., concurring) (questioning the Court’sfungibility rationale and arguing that the application of the statute to Sabri shouldbe upheld under the Commerce Clause)

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impact. Alternatively, it could limit federal power through purelyprocedural rather than substantive restraints. In the 2005–2006 term,however, it failed to pursue either of these options.

A Pyrrhic victory is one that is so costly to the winning side thatit might have done better to avoid the battle at all. The federalgovernment lost all three of the major federalism cases of the2005–2006 Supreme Court term, yet the Court’s reasoning servedto reaffirm more than constrain the virtually limitless nature ofcongressional power. Although the feds did not win even Pyrrhicvictories, they achieved the much more valuable outcome of protect-ing their victory in the larger battle despite (and in part becauseof) losing three minor skirmishes. For advocates of federal power,Oregon, Rapanos, and possibly even Arlington were Pyrrhic defeats,setbacks that underscore their dominant position in the largerstruggle.

A. Oregon, Rapanos, and Limits on Congressional CommerceClause Power

In addition to cutting back on Raich directly by reimposing sub-stantive limits on federal power, the Court in Oregon and Rapanoscould have constrained federal authority by relying on restrictiverules of statutory interpretation. There are two rules of constructionby which the Court majority could have constrained congressionalpower. The ‘‘constitutional avoidance’’ canon requires courts toreject interpretations of a statute that ‘‘raise serious constitutionalproblems’’ unless there is a clear statement in the law that Congressintended it to be interpreted in that way.47 The ‘‘federalism canon’’requires a similar ‘‘unmistakably clear’’ statement of congressionalintent in statutes that ‘‘alter the usual constitutional balance betweenthe States and the Federal Government.’’48 In the final analysis, nei-ther substantive nor procedural limits on federal power wereimposed by either decision.

47 See, e.g., Edward J. DeBartolo Corp. v. Florida Gulf Coast Bldg. & Const. TradesCouncil, 485 U.S. 568, 574 (1988); NLRB v. Catholic Bishop of Chicago, 440 U.S. 490,504 (1979) (requiring a clear expression of an affirmative intention of Congress beforea statutory interpretation that raises serious constitutional questions can be accepted).

48 Gregory v. Ashcroft, 501 U.S. 452, 460 (1991).

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1. Gonzales v. OregonSome perceive Gonzales v. Oregon49 as a partial repudiation of Raich

or at least as a reassertion of state autonomy.50 Oregon rejected theBush administration’s attempt to interpret the CSA in a way thatwould have permitted it to punish Oregon doctors who use prescrip-tion drugs to facilitate assisted suicide, as they are permitted to dounder the state’s Death with Dignity Act.51 The CSA, of course, isthe same statute as the one at issue in Raich.

In reality, Oregon does not in any way undercut Raich’s constitu-tional holding. Both the majority and dissenting justices took painsto point out that the decision was a purely statutory one and didnot conclude that Congress lacked constitutional authority to forbidassisted suicide using its powers under the Commerce Clause. JusticeKennedy’s majority opinion emphasized that ‘‘there is no questionthat the Federal Government can set uniform national standards’’for the ‘‘regulation of health and safety’’ despite the fact that ‘‘theseareas’’ have traditionally been ‘‘a matter of local concern.’’52 JusticeScalia’s dissent, joined by Justice Thomas and Chief Justice Roberts,similarly noted that ‘‘using the federal commerce power to preventassisted suicide is unquestionably permissible’’ under the Court’sprecedents, and that the only question addressed by Oregon is ‘‘notwhether Congress can do this, or even whether Congress should dothis; but simply whether Congress has done so in the CSA.’’53

The majority did make a small bow to federalism by stating thatpart of the basis of its decision was a lack of proof that, in enactingthe CSA, Congress had ‘‘the farreaching intent to alter the federal-state balance’’ by overriding the states’ traditional authority to regu-late the practice of medicine.54 This holding might be welcomed

49 126 S. Ct. 904 (2006).50 See, e.g., Linda Greenhouse, Justices Reject U.S. Bid to Block Assisted Suicide,

N.Y. Times, Jan. 18, 2006, at A1 (‘‘While the court’s decision was based on standardprinciples of administrative law, and not on the Constitution, it was clearly influencedby the majority’s view that the regulation of medical practice belonged, as a generalmatter, to the states.’’); Tony Mauro, Court Sides with Oregon Over Assisted SuicideLaw, Legal Times, Jan. 23, 2006, at 10 (suggesting that the Court had ‘‘sid[ed] withstates’ rights’’).

51 Oregon, 126 S. Ct. at 911–26.52 Id. at 923 (quotation omitted).53 Id. at 939 (Scalia, J., dissenting).54 Id. at 925.

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The majority did make a small bow to federalism by stating thatpart of the basis of its decision was a lack of proof that, in enactingthe CSA, Congress had ‘‘the farreaching intent to alter the federal-state balance’’ by overriding the states’ traditional authority to regu-late the practice of medicine.54



by those who would like to replace substantive judicial review ofCommerce Clause cases with ‘‘clear statement’’ rules that requireCongress to plainly indicate its intent in cases where a statute isintended to infringe on a particularly sensitive area of state author-ity.55 Previous Supreme Court precedents already require Congressto make its intentions ‘‘unmistakably clear in the language of thestatute’’ whenever it seeks to ‘‘alter the usual constitutional balancebetween the States and the Federal Government.’’56

However, the Oregon Court specifically disclaimed reliance onany such principle, claiming that ‘‘[i]t is unnecessary even to considerthe application of clear statement requirements’’ because the correctinterpretation of the CSA could so easily be determined through theuse of ordinary statutory analysis and ‘‘commonsense.’’57

Only Justice Thomas, in a solitary dissent, suggested that therewas a possible tension between the Court’s reasoning in Oregon andits recent holding in Raich.58 Thomas emphasized that the majorityhad ‘‘beat[en] a hasty retreat’’ from Raich’s characterization of theCSA as ‘‘‘a comprehensive regulatory scheme specifically designedto regulate which controlled substances can be utilized for medicinalpurposes and in what manner.’’’59 He went on to note that he foundthe Bush administration’s assertion of federal authority over assistedsuicide to be both ‘‘sweeping’’ and ‘‘perhaps troubling.’’60 JusticeThomas even implied that the government’s position might be incon-sistent with ‘‘principles of federalism and our constitutional struc-ture.’’61 But, after Raich, such concerns are ‘‘now water under thedam.’’62 The administration stance in Oregon was, according toThomas, ‘‘merely the inevitable and inexorable consequence of’’Raich.63 In any event, Thomas, like the other justices, emphasized

55 See, e.g., Thomas M. Merrill, Rescuing Federalism after Raich: The Case for ClearStatement Rules, 9 Lewis & Clark L. Rev. 823 (2005).

56 Gregory v. Ashcroft, 501 U.S. 452, 460 (1991).57 Oregon, 126 S. Ct. at 925.58 Id. at 939–42 (Thomas, J., dissenting).59 Id. at 939 (quoting Gonzales v. Raich, 125 S. Ct. 2195, 2211 (2006)) (emphasis

added by Justice Thomas).60 Id. at 940.61 Id. at 941.62 Id.63 Id.

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’60 JusticeThomas even implied that the government’s position might be incon-sistent with ‘‘principles of federalism and our constitutional struc-ture.’’’61



that Oregon was merely a case about ‘‘statutory interpretation, andnot [about] the extent of constitutionally permissible federalpower.’’64 In a footnote, Thomas points out that Oregon had ‘‘notseriously pressed a constitutional claim’’ and had accepted the valid-ity of Raich, thereby ‘‘foreclose[ing]’’ any possible ‘‘constitutionalchallenge.’’65 Thomas’ argument aside, the other eight justices, espe-cially those in the majority, did all they could to foreclose any possi-bility that Oregon might undercut Raich in a meaningful way.

2. Rapanos v. United States66

Rapanos v. United States67 involved the scope of federal authorityto regulate ‘‘wetlands’’ under the Clean Water Act of 1972 (CWA),which gives the Army Corps of Engineers the power to regulatedischarges into ‘‘navigable waters,’’68 a term defined as encompass-ing ‘‘the waters of the United States.’’69 Two property owners claimedthat the Corps lacked both statutory and constitutional authority toregulate land they owned that was ‘‘11 to 20 miles away from thenearest navigable water’’ and connected to it only by man-madedrains.70 In a split 4-1-4 decision, the Court refused to endorse thegovernment’s claim that the CWA gives the Corps the power to regu-late virtually any wetland area, regardless of the degree of connectionto ‘‘navigable’’ waterways and instead remanded the case to the dis-trict court for further factfinding.71 Rapanos is in some respects a sequelto SWANCC v. United States Army Corps of Engineers,72 a 2001 decisionin which the Court held that the CWA does not authorize the Corpsto regulate isolated, nonnavigable intrastate waters merely becausethey are occasionally utilized by migratory birds.73

64 Id.65 Id. at 945 n.2.66 Some of the material in this section is a revised version of a post produced for

the Volokh Conspiracy Blog. See Ilya Somin, Preliminary Thoughts On Rapanos AndFederalism—Much Ado About Very Little, The Volokh Conspiracy (June 19, 2006),available at http://volokh.com/posts/1150751435.shtml (visited June 28, 2006).

67 126 S. Ct. 2208 (2006).68 33 U.S.C. §§ 1311(a), 1344(a).69 33 U.S.C. § 1362(7).70 Rapanos, 126 S. Ct. at 2214, 2219.71 Id. at 2235.72 SWANCC v. United States Army Corps of Engineers, 531 U.S. 159 (2001).73 Id. at 172–74.

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Some observers hoped and others feared that Rapanos might reinin the impact of Raich on judicial review of federalism.74 Such hopesand fears have turned out to be groundless. Rapanos does not enforceany constitutional limits on federal power. Nor does it increasethe protection for federalism provided by rules of statutoryinterpretation.

Neither Justice Scalia’s opinion nor Justice Kennedy’s concurrenceaddresses the constitutional issues raised by the property owners.75

Both rely exclusively on statutory interpretation arguments aboutthe meaning of the Clean Water Act (CWA).76 They hold that Con-gress in the CWA didn’t give the Army Corps of Engineers the powerto regulate any and all bodies of water, no matter how small or non-navigable. But that does not mean that it couldn’t do so if it wantedto. Indeed, it is striking that Scalia’s opinion does not even mentionRaich, while Kennedy’s does so only briefly, using it to justify inter-preting the CWA to give the Corps greater regulatory authority thanthe plurality would allow.77

Rapanos also does little or nothing to limit congressional powerthrough rules of statutory interpretation. The Rapanos majoritylargely eschews both the constitutional avoidance and federalismcanons, despite the fact that the Court previously relied on both in

74 See, e.g., Sara Beardsley, The End of the Everglades? Supreme Court Case Jeopar-dizes 90 percent of U.S. Wetlands, Sci. Am., May 22, 2006, available at http://www.sciam.com/article.cfm?chanID�sa006&colID�5&articleID�000997CF-938F-146C-91AE83414B7F0000 (visited June 28, 2006) (claiming that Rapanos might radicallyreduce federal regulatory authority over wetlands and noting that ‘‘federalist watch-dogs cling to Rapanos . . . as an opportunity to curb Washington’s power’’).

75 In their brief, the owners claimed that the Army Corps of Engineers’ interpretationof the CWA expands federal power beyond the limits of the Commerce Clause, evenafter Raich. See Brief for Petitioner at i, 23–28, Rapanos v. United States, 126 S. Ct.2208 (2006) (No. 04-1034) (Dec. 2, 2005), available at 2005 WL 3294932.

76 Rapanos, 126 S. Ct. at 2220–25 (interpreting CWA reference to ‘‘waters of theUnited States’’ to cover only ‘‘relatively permanent, standing or continuously flowingbodies of water forming geographic features that are described in ordinary parlanceas streams[,] . . . oceans, rivers, [and] lakes’’) (citations and quotation marks omitted);id. at 2248 (Kennedy, J., concurring) (interpreting it to require ‘‘the existence of asignificant nexus between the wetlands in question and navigable waters in thetraditional sense’’).

77 Id. at 2250 (Kennedy, J., concurring) (citing Gonzales v. Raich, 125 S. Ct. 2195,2206 (2005)).

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rejecting the Army Corps of Engineers’ ‘‘migratory bird rule’’ in theSWANCC case. 78

Justice Scalia’s plurality opinion briefly cites the two canons tobuttress its interpretation of the CWA.79 However, Scalia mostlyrelies on a detailed textual analysis of the statute.80 His opinion doesnot hold that either canon would require rejection of the govern-ment’s interpretation of the CWA even if the latter were otherwisethe most persuasive available option. This is a significant omission,since previous avoidance canon cases specifically note that clearstatement rules require courts to reject even ‘‘an otherwise acceptableconstruction of a statute’’ if endorsing it ‘‘would raise serious consti-tutional problems.’’81

According to Scalia, ‘‘[e]ven if the phrase ‘the waters of the UnitedStates’ were ambiguous as applied to intermittent flows,’’ the feder-alism and constitutional avoidance canons would compel rejectionof the Corps of Engineers’ interpretation of the CWA.82 He notesthat, under the federalism clear statement rule, ‘‘[w]e ordinarilyexpect a ‘clear and manifest’ statement from Congress to authorizean unprecedented intrusion into traditional state authority.’’83 How-ever, Scalia’s discussion of the canon assumes that they apply onlywhen a statute is ‘‘ambiguous’’ on the issue at hand,84 and fails toreiterate earlier precedents that require Congress to make its inten-tion to upset the ‘‘usual’’ federal-state balance ‘‘unmistakably clearin the language of the statute.’’85 Instead, Scalia contends that such anintention requires a ‘‘clear and manifest statement from Congress,’’ apotentially less demanding standard.86

With respect to the constitutional avoidance canon, Scalia con-cludes only that ‘‘we would expect a clearer statement from Congress

78 SWANCC, 531 U.S. at 172–74.79 Rapanos, 126 S. Ct. at 2224.80 Id. at 2220–23, 2225–34.81 Edward J. DeBartolo Corp. v. Florida Gulf Coast Bldg. & Const. Trades Council,

485 U.S. 568, 574 (1988).82 Id.83 Rapanos, 126 S. Ct. at 2224.84 Id.85 Gregory v. Ashcroft, 501 U.S. 452, 460 (1991).86 Rapanos, 126 S. Ct. at 2224.

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to authorize an agency theory of jurisdiction that presses the enve-lope of constitutional validity.’’87 This is a weaker requirement thanthe traditional formulation of the canon, which holds that ‘‘whenan otherwise acceptable construction of a statute would raise seriousconstitutional problems, the Court will construe the statute to avoidsuch problems unless such construction is clearly contrary to theintent of Congress.’’88

Justice Scalia may not actually intend to weaken the standardsrequired by the two avoidance canons. His departure from previous,stronger formulations of these rules may simply constitute loose useof language. Even so, there is no indication that he and the otherjustices who signed on to his opinion intend to strengthen the twocanons in order to offset some of the impact of Raich.

In any event, Scalia’s treatment of the canons probably lacks prece-dential significance and does not bind lower courts because JusticeKennedy specifically rejected it in his concurring opinion. BecauseRapanos is a 4-1-4 decision, Kennedy’s vote was decisive to the result.As Chief Justice Roberts (who signed on to Scalia’s interpretationof the CWA) points out in a concurring opinion, cases where thereis no one opinion endorsed by a majority of the Court are governedby Marks v. United States.89 According to Marks:

When a fragmented Court decides a case and no single ratio-nale explaining the result enjoys the assent of five justices,the holding of the Court may be viewed as that positiontaken by those Members who concurred in the judgmentson the narrowest grounds.90

In this case, Kennedy is probably the justice who concurred onthe ‘‘narrowest grounds,’’ since his opinion places fewer restrictions

87 Id.88 DeBartolo, 485 U.S. at 574. See also NLRB v. Catholic Bishop of Chicago, 440 U.S.

490, 504 (1979) (requiring a ‘‘clear expression of an affirmative intention of Congress’’before a statutory interpretation that raises serious constitutional questions can beupheld). Scalia cites DeBartolo (Rapanos, 126 S. Ct. at 2224), but does not refer to thelanguage quoted here.

89 See 126 S. Ct. at 2236 (Roberts, C.J., concurring) (citing Marks v. United States,430 U.S. 188, 193 (1977)).

90 Marks, 430 U.S. at 193.

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on the Corps than Scalia’s, and also provides a less sweeping andmore ambiguous interpretation of the CWA. Even if Justice Scalia’splurality opinion is binding instead of Justice Kennedy’s concur-rence, the implications for clear statement rules are little different.Thus, Rapanos is unlikely to expand the application of the two avoid-ance canons to statutes that rely on Congress’ Commerce Clauseauthority.

Even as a matter of pure statutory interpretation, Rapanos probablydoes not impose significant limits on the scope of federal authorityunder the CWA. The full impact of Rapanos will not become clearuntil lower courts (starting with the district court that will considerthe remanded Rapanos case itself) go through the process of applyingJustice Kennedy’s ‘‘significant nexus’’ test to particular cases. Asthis article goes to press, the U.S. Court of Appeals for the NinthCircuit has just decided Northern California River Watch v. City ofHealdsburg, the first lower court appellate decision to apply Rapanos.Unfortunately, River Watch sheds little light on the broader implica-tions of Rapanos, with the important exception of confirming thatJustice Kennedy’s concurring opinion is the controlling one underMarks v. United States.91 It is also worth noting that preliminaryassessments by environmental scholars on both sides of the politicalspectrum conclude that the decision is likely to impose only minorlimitations on the Army Corps of Engineers.92

91 Northern Calif. River Watch v. City of Healdsburg, 2006 WL 2299115, at *1, 6(9th Cir. Aug. 10, 2006) (holding that ‘‘the controlling opinion [in Rapanos] is thatof Justice Kennedy’’). River Watch’s broader significance for interpretations of the‘‘significant nexus’’ test is very limited because if was not a close case under thatstandard. See id. at *6–7 (noting extensive ‘‘hydrological,’’ ‘‘physical,’’ and ‘‘ecologi-cal’’ connections between the body of water at issue in the case and ‘‘navigablewaters’’). One possible noteworthy aspect of River Watch is the court’s holding that‘‘mere adjacency’’ to navigable waters is not sufficient to justify federal regulatoryjurisdiction under Rapanos. Id. at *6.

92 See, e.g., Jonathan Adler, All Wet: Landowners May Have Won The Battle AgainstFederal Wetlands Regulations, But Lost The War, National Review Online, June 27,2006, available at http://article.nationalreview.com/?q�NDExM2MxYmY3OGE1Z-WRjOTYwMDkxZDM1M2NlZmJmYzY�(visited Aug. 9, 2006) (op ed by leadinglibertarian environmental law expert concluding that Rapanos ‘‘will do little to limitthe scope of federal regulation’’); Richard Lazarus, Discussion: Rapanos and Carabell,SCOTUS blog, June 19, 2006, available at http://www.scotusblog.com/movabletype/archives/2006/06/discussion boar 1.html (visited Aug. 9, 2006) (prominent liberalenvironmental law scholar suggesting that ‘‘Kennedy[’s concurrence] plus the Stevensdissent provides lots of regulatory space for the government and for environmen-tal protection’’).

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B. Arlington Central School District v. Murphy and theSpending Power

Arlington Central School District v. Murphy93 received far less public-ity than either Oregon or Rapanos. Nonetheless, Arlington raises thesame issues in the Spending Clause context after Sabri as the othertwo cases do with respect to the post-Raich Commerce Clause.

The Arlington case involved competing interpretations of a provi-sion of the Individuals with Disabilities Education Act (IDEA), whichallows courts to ‘‘award reasonable attorneys’ fees as part of thecosts’’ to parents who win a case against their public school underthe act.94 The point in dispute was whether or not ‘‘this fee-shiftingprovision authorizes prevailing parents to recover fees for servicesrendered by experts in IDEA actions’’ in addition to traditionalattorneys’ fees.95

The IDEA cause of action is a condition of state governments’receipt of federal education funds.96 For that reason, it is subject toone of the Court’s strongest federalism clear statement rules. Becausefederal grants to state governments are ‘‘much in the nature ofa contract,’’ any conditions attached to the funds must be stated‘‘unambiguously’’ in order to ensure that they are accepted ‘‘volun-tarily and knowingly.’’97

The Supreme Court has not always applied this requirement rigor-ously. For example, in its 1999 decision in Davis v. Monroe CountyBoard of Education,98 the Court upheld the imposition of Title IXliability for student-to-student sexual harassment on schools receiv-ing federal funds, despite the fact that such liability is not specificallymentioned in the text of Title IX and cannot easily be inferred fromthe structure or legislative history of the statute.99

93 Arlington Central School Dist. Board of Education v. Murphy, 126 S. Ct. 2455(2006).

94 20 U.S.C. § 1415(i)(3)(B).95 Arlington, 126 S. Ct. at 2457.96 Id. at 2458–59.97 Pennhurst State School & Hospital v. Halderman, 451 U.S. 1, 17 (1981).98 Davis v. Monroe County Board of Education, 526 U.S. 629 (1999).99 Id. at 643–49; see also id. at 657–64 (Kennedy, J., dissenting) (explaining why

liability for student-to-student sexual harassment cannot be inferred from the textof Title IX).

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In Arlington, however, the Court refused to interpret IDEA toallow courts to award funds for payment of experts. Justice Alito’smajority opinion emphasized that the text of the IDEA, which per-mits only ‘‘the award of reasonable attorneys’ fees,’’ does not ‘‘evenhint that acceptance of IDEA funds makes a State responsible forreimbursing prevailing parents for services rendered by experts.’’100

Even Justice Breyer’s dissenting opinion, joined by Justices Stevensand Souter, accepts that compensation for expenditures on expertscannot be inferred from the text alone.101 Breyer in fact concedes that‘‘the statute on its face does not clearly tell the States that they mustpay expert fees to prevailing parents.’’102 The dissenters claim thatsuch a rule can nonetheless be justified by reference to IDEA’s legisla-tive history and purpose.103 But if we concede that the text is unclearat best, it becomes impossible to prove that IDEA ‘‘unambiguously’’permits courts to award expert fees to victorious plaintiffs.104

Arlington therefore maintains the rule that states must have clearnotice of any conditions imposed on the receipt of federal funds.At the same time, it is telling that three justices dissented despiteadmitting that the text of the statute was unclear. Their view, ineffect, constitutes a rejection of the clear statement rule. A fourth,Justice Ginsburg, concurred in the result, but emphasized that a‘‘clear notice’’ requirement should not apply to cases involving reme-dies for violations as opposed to those involving the substance of theconditions themselves.105 Ginsburg also argues that clear statementrequirements should not be imposed on conditional grants enacted‘‘pursuant to § 5 of the Fourteenth Amendment,’’ as she believesIDEA was.106

Thus, Arlington reveals that the Spending Clause clear statementrule is far from irrevocably established. Three justices largely rejectthe requirement and a fourth (Ginsburg) would apply it only to alimited range of grants. And even the majority justices did not

100 Arlington, 126 S. Ct. at 2459.101 Id. at 2466 (Breyer, J., dissenting).102 Id. at 2470 (emphasis in original).103 Id. at 2466–70.104 Pennhurst, 451 U.S. at 17 (emphasis added).105 Arlington, 126 S. Ct. at 2464 (Ginsburg, J., concurring).106 Id.

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attempt to strengthen the rule relative to previous cases in order tooffset the impact of Sabri. Moreover, they carefully noted that theydo not intend to limit the substantive reach of Congress’ SpendingClause power, emphasizing that ‘‘Congress has broad power to setthe terms on which it disburses federal money to the States.’’107

Arlington reaffirms a longstanding, seemingly pro-federalism clearstatement rule. But it also reveals that the rule commands only anarrow majority on the Court.

III. The Limits of Clear Statement RulesIn the aftermath of Raich, Thomas Merrill has argued that a federal-

ism clear statement rule is a superior alternative to substantive limi-tations on congressional Commerce Clause authority, and JusticeBreyer advances a similar argument in a recent book.108 Other schol-ars defend clear statement rules as a useful supplement to substan-tive judicial review of federalism.109 Unfortunately, clear statementrules are unlikely to be an adequate substitute for substantive judicialreview, and it is not even clear that they make the situation betterat the margin.

After Raich, it is far from clear that clear statement rules can stillbe applied in the Commerce Clause field, though they remain viablewith respect to the Spending Clause, as Arlington demonstrates.Even if the post-Raich doctrinal challenges to clear statement rulescan be overcome, these canons are unlikely to provide adequateprotection for constitutional federalism. In some cases, they mayeven contribute to the growth of federal power.

A. The Uncertain Future of Federalism Clear Statement RulesNeither academic advocates nor any of the justices who authored

opinions in Oregon and Rapanos have so far considered the implica-tions of Raich for the future of clear statement rules. It is far from

107 Id. at 2459.108 See generally Merrill, supra note 55; Stephen E. Breyer, Active Liberty: Interpreting

our Democratic Constitution 64–65 (2005).109 See, e.g., Ernest A. Young, Two Cheers for Process Federalism, 46 Vill. L. Rev.

1349, 1385–92 (2001) (arguing for clear statement rules, but also emphasizing theneed for a ‘‘substantive backstop’’); Larry J. Obhof, Federalism, I Presume? A Look atthe Enforcement of Federalism Principles through Presumptions and Clear StatementRules, 2004 Mich. St. L. Rev. 123, 150–64 (defending clear statement rules withouttaking a position on the merits of substantive judicial review of federalism).

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clear that either the constitutional avoidance canon or the federalismcanon remains viable after Raich.

1. The Constitutional Avoidance CanonIf Raich is correct and congressional Commerce Clause power is

essentially unlimited, a statute that relies on a broad interpretationof that power cannot ‘‘raise serious constitutional problems.’’110 AfterRaich, there can be no ‘‘problem’’ because there are no constitutionallimits for Congress to infringe. To be sure, the avoidance canonmight be resuscitated if federalism is viewed as an ‘‘underenforcedconstitutional norm.’’111 Under this approach, the Court could explic-itly admit that meaningful limits on federal power, though requiredby the Constitution, cannot be enforced because of political consider-ations or because of inadequate judicial competence. Clear statementrules might be viewed as a sort of second best strategy, providinga measure of protection for federalism without placing substantivejudicial limits on congressional authority.112 Even this relatively mod-est agenda, however, would require the Court to retreat from thevision of virtually unlimited federal power articulated in Raich.113 Anew Supreme Court decision would have to repudiate the reasoningof Raich and instead conclude that there are meaningful limits tocongressional Commerce Clause authority after all—even if thoselimits can only be ‘‘enforced’’ through clear statement requirements.

2. The Federalism CanonRaich poses a similar dilemma for the federalism canon. If federal

regulatory authority is virtually unlimited, it becomes almost impos-sible for Congress to write a statute that ‘‘alter[s] the usual constitu-tional balance between the States and the Federal Government.’’114

Under Raich, the ‘‘usual constitutional balance’’ is one where thereare no structural limits to congressional authority. The only ‘‘usualconstitutional balance’’ that can exist is whatever Congressdecides on.

110Edward J. DeBartolo Corp. v. Florida Gulf Coast Bldg. & Const. Trades Council,485 U.S. 568, 574 (1988).

111 See generally Lawrence Sager, Fair Measure: The Legal Status of UnderenforcedConstitutional Norms, 91 Harv. L. Rev. 1212 (1978).

112 This approach is similar to that defended in Merrill, supra note 55.113 See Somin, Federalism as a Casualty of the War on Drugs, supra note 2, at 4–13;

see supra Part I.A.114 Gregory v. Ashcroft, 501 U.S. 452, 460 (1991).

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If Raich is correct and congressional Commerce Clause power isg pessentially unlimited, a statute that relies on a broad interpretationy pof that power cannot ‘‘raise serious constitutional problems.’’’1100 Afterp pRaich, there can be no ‘‘problem’’ because there are no constitutionalplimits for Congress to infringe.

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As with the avoidance canon, it is possible to get around thisproblem by envisioning federalism as an ‘‘underenforced’’ constitu-tional norm. But, as already noted, this solution would require amajor rollback of the reasoning adopted in Raich.

An alternative approach would be to unmoor the canon fromthe Constitution entirely and define the state-federal ‘‘balance’’ byreference to tradition and status quo practices. If Congress seeks tointervene in a field previously left to the states, it has to enact astatute that meets the terms of the clear statement rule. However,in the modern regulatory state there are few if any policy areas thatremain free of federal involvement. Such traditional areas of stateauthority as education, criminal law, and local land use regulationare all now subject to extensive federal intervention. Indeed, Arling-ton (education), Raich (criminal law), and Rapanos (land use)addressed federal regulations in precisely these three fields.

Even if the specific assertions of federal authority considered inthese three cases can be viewed as novel, it is undeniable that statutessuch as the Clean Water Act, the CSA, and a variety of federaleducation statutes including IDEA and the No Child Left BehindAct,115 have led to the entrenchment of federal power over policyissues that were once under more or less exclusive state control.Using the status quo as a baseline is therefore a nonstarter unlessnew federal regulations are considered in an arbitrarily narrow light.If, for example, the federal government has had a longstanding rolein setting education policy, it is not clear why federal restrictionson gun possession in school zones (Lopez) should be viewed asaltering the ‘‘usual’’ state-federal balance rather than applying it. 116

This difficulty underscores the crucial point that defenders ofthe federalism clear statement rule lack a coherent theory that candetermine where the rule should apply. Professor Merrill, the lead-ing recent advocate of the canon, concedes that ‘‘no set formula ispossible’’ and urges courts to make their decisions by drawing ‘‘on

115 Indeed, the NCLBA expands federal control of education so much that liberalDemocratic critics of the act have attacked it for undermining states’ rights. See SamDillon, President’s Initiative to Shake up Education is Facing Protests in Many StateCapitols, N.Y. Times, Mar. 8, 2004, at 12 (noting liberal Democratic criticisms of theact for excessive intrusion on state control of education policy).

116 Gregory, 501 U.S. at 460.

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historical experience in implementing the Commerce Clause, leav-ened with some common sense.’’117 It is certainly desirable to takeadvantage of both experience and common sense. However, judgeswith differing ideologies and backgrounds are likely to draw verydifferent lessons from ‘‘historical experience.’’ And that whichappears to be ‘‘common sense’’ to liberal jurists may well be viewedas folly by conservatives or libertarians, and vice versa. If we wanta post-Raich federalism clear statement rule to be applied at leastsomewhat consistently, courts will need some kind of theory toguide them in determining what factors are relevant to the rule’sapplication and how to weigh them against each other in cases wherethey conflict.

3. Conditional Federal SpendingAs the Arlington case demonstrates, the clear statement canon

requiring Congress to unambiguously identify the conditionsattached to federal grants to state governments remains intact—atleast for the moment.118 It is not threatened by Raich because it appliesto all conditions attached to federal grants, apparently irrespectiveof their impact on the state-federal balance or even their impact onother constitutional values. Although this canon therefore escapessome of the problems bedeviling its two cousins, it is still far fromclear that it is an adequate substitute for substantive limits on fed-eral power.

B. Clear Statement Rules and the Fallacy of Equating Federalism andthe Interests of State Governments

1. Why Clear Statement Rules Are Not EnoughEven if the doctrinal and conceptual problems bedeviling clear

statement rules can be overcome, they are still an inadequate substi-tute for judicial enforcement of substantive limits on federal power.The key flaw in the case for clear statement rules is the implicitassumption that constitutional federalism is reducible to the protec-tion of state government interests. For example, Professor Merrillcontends that a federalism clear statement rule will be effective ‘‘tothe extent [that] we think that state and local governments have atleast some influence with Congress, and to the extent we wish toharness these political safeguards as part of a larger strategy of

117 Merrill, supra note 55, at 845.118 See supra Part I.B.

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accommodating stability and change in intergovernmental rela-tions.’’119 The focus on state government interests is also evident inArlington, where the Court emphasizes that the Spending Clauseclear statement rule requires it to ‘‘view the IDEA from the perspec-tive of a state official who is engaged in the process of decidingwhether the State should accept IDEA funds and the obligationsthat go with those funds.’’120

In theory, clear statement rules help activate the political powerof state governments by alerting them to any overextension of federalpower embedded in pending legislation.121 The states can then‘‘mobilize in opposition to such regulation,’’ potentially obviatingthe need for substantive judicial review.122 The flaw in this relianceon the political power of state governments is that state politiciansoften have incentives to undermine federalism rather than promoteit, by acquiescing in the extension of federal power.

For example, state officials sometimes lobby for federal interven-tion to help form a cartel to prevent interstate competition for resi-dents and businesses.123 State governments may also fall under theinfluence of interest groups that seek to impose their preferred poli-cies nationwide and, as a result, use their political leverage to lobbyfor uniform federal regulation.124 Elsewhere, John McGinnis and Ihave explained in more detail the numerous incentives state govern-ments have to support the expansion of federal power, even at theexpense of constitutional federalism.125 Whether one has an original-ist/textualist or structural theory of federalism,126 clear statement

119 Merrill, supra note 55, at 834.120 Arlington Central School Dist. Board of Education v. Murphy, 126 S. Ct. 2455,

2459 (2006).121 Merrill, supra note 55, at 833.122 Id.123 Somin, Closing the Pandora’s Box of Federalism, supra note 39, at 470; John O.

McGinnis & Ilya Somin, Federalism vs. States’ Rights: A Defense of Judicial Reviewin a Federal System, 99 Nw. U.L. Rev. 89, 117–18 (2004).

124 See Lynn A. Baker & Ernest Young, Federalism and the Double Standard ofJudicial Review, 51 Duke L.J. 75, 117–28 (2001).

125 McGinnis & Somin, supra note 123, at 112–13, 114–15, 118, 119–20.126 For structural arguments in favor of judicial review of federalism, see, e.g., id.,

and Baker & Young, supra note 124. For a textualist critique of unlimited federalpower, see Somin, Federalism as a Casualty of the War on Drugs, supra note 2. Foran originalist case for judicial enforcement of federalism, see, e.g., Randy E. Barnett,Restoring the Lost Constitution chs. 7, 11 (2004); and Saikrishna B. Prakash & John

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rules are unlikely to be effective methods of implementing it becausestate governments will often have incentives to use their power inways that undermine it. As Justice O’Connor notes in her majorityopinion in New York v. United States, ‘‘powerful incentives mightlead both federal and state officials to view departures from thefederal structure to be in their personal interests.’’127

In theory, clear statement rules could empower ordinary votersto police the boundaries of federalism instead of state governmentofficials. However, it is unlikely that very many voters have thetime and expertise needed to carefully study thousands of pages ofstatutory text in order to identify potential infringements on federal-ism. Indeed, decades of survey evidence indicate that most citizenshave very low levels of political knowledge and that many areignorant of even very basic political facts.128 Thus, it is highly improb-able that voters can make effective use of the products of clearstatement rules.

Of course, one could simply reject judicial enforcement of federal-ism entirely, as do scholars such as Herbert Wechsler, Jesse Choper,and Larry Kramer.129 But then it is not clear why there is any needfor judicially created clear statement rules. If, as critics of judiciallyenforced federalism claim, the political process is the best way todetermine the appropriate balance of power between Washingtonand the states, then it is difficult to see why judges should enforceclear statement rules any more than they should enforce substantivelimits on federal power.

C. Yoo, The Puzzling Persistence of Process-Based Federalism Theories, 79 Tex. L.Rev. 1459 (2001).

127 New York v. United States, 505 U.S. 144, 182 (1992).128 For analysis of the evidence and its implications for judicial review, see Ilya

Somin, Political Ignorance and the Countermajoritarian Difficulty: A New Perspectiveon the ‘‘Central Obsession of Constitutional Theory,’’ 89 Iowa L. Rev. 1287 (2004).

129 See Jesse Choper, Judicial Review and the National Political Process, ch. 4 (1980)(rejecting judicial review of federalism); Jesse Choper, The Scope of National PowerVis-a-vis the States: The Dispensability of Judicial Review, 86 Yale L.J. 1552 (1977);Herbert F. Wechsler, The Political Safeguards of Federalism: The Role of the Statesin the Composition and Selection of the Federal Government, 54 Colum. L. Rev. 543(1954); and Larry D. Kramer, Putting the Politics Back into the Safeguards of Federal-ism, 100 Colum. L. Rev. 215 (2000).

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2. Clear Statement Rules and the Expansion of Federal PowerEven if clear statement rules are an inadequate substitute for

substantive judicial review, they could still serve a useful functionby giving Congress an incentive to draft clearer and less ambiguouslaws. And it is certainly possible that they do restrict the growth offederal power slightly. These benefits might be sufficient to justifythe continued use of federalism clear statement rules. Even if suchrules have relatively few benefits, they also do not seem to imposesignificant costs.

This calculation may turn out to be correct. But there is at leastone potentially substantial cost of federalism clear statement rulesthat the existing literature on the subject fails to consider. If clearstatement rules function as intended, they reduce the chance thata new federal program will inflict unwelcome surprises on stategovernments. For example, the Spending Clause clear statementrequirement ensures that states that accept federal funds are onlysubject to those obligations that they agree to ‘‘voluntarily and know-ingly.’’130 Similarly, the requirement that statues that raise constitu-tional problems or upset the state-federal balance clearly state thisresult in the statutory text helps ensure that new statutes do notexpand federal regulatory authority in ways that state officials findunacceptable.

By reducing the probability of unwelcome surprises from newfederal legislation, clear statement rules increase the incentive ofstate governments to support expansion of federal power and acceptfederal funds. If clear statement rules are effective in protectingstates against legislative surprises, they help to eliminate a potentialreason for some state governments to oppose new extensions offederal power. For supporters of the expanding federal role in Ameri-can public policy, this may be a beneficial result. But it certainlyshould not be welcomed by advocates of federal ism anddecentralization.

The magnitude of this effect depends in large part on the degreeto which clear statement rules really do reduce perceived uncertaintyabout the impact of new federal statutes, an empirical issue on whichwe have no systematic evidence. If states have effective methods tominimize uncertainty even in the absence of clear statement rules,

130 Pennhurst State School & Hospital v. Halderman, 451 U.S. 1, 17 (1981).

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then the latter are unlikely to increase support for the expansion offederal power. But if clear statement rules do not serve to reduceuncertainty about the meaning of statutes, it is difficult to see whyjudges should bother to enforce them at all. The more effective clearstatement rules are in achieving their intended purpose of decreasinglegal uncertainty, the more likely they are to strengthen state govern-ment support for expanded federal power.

ConclusionAlthough the federal government suffered three notable defeats

during the 2005–2006 Supreme Court term, these setbacks do notherald a revival of judicially enforced limits on federal power. Twoof the three decisions—Oregon and Rapanos—do not even restrictfederal power through the use of clear statement rules, while thethird does not expand the relevant rule beyond its preexisting scope.

The future viability of federalism clear statement rules remainsin serious doubt. And even if the courts choose to keep the rulesalive in the face of doctrinal conundrums created by Gonzales v.Raich, there is little reason to believe that they can ever be an adequatesubstitute for judicially enforced limits on federal power.

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And even if the courts choose to keep the rulesalive in the face of doctrinal conundrums created by Gonzales v.Raich, there is little reason to believe that they can ever be an adequatesubstitute for judicially enforced limits on federal power.


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