The Commerce Clause, The Preposition, and the Rational Basis Test

In Gonzales v. Raich, the United States Supreme Court upheld the application of the federal Controlled Substances Act to bar the use of state-grown marijuana for instate personal medical use. In so doing, the Court ratified the expansion of Congress’ commerce power beyond any known limits. It abandoned the “substantial effects” test that it had used since 1937 and applied the “rational basis” test. This Article traces the historical development of Congress’ enumerated powers from the earliest cases, emphasizing the expansive view of commerce power found in Gibbons v. Ogden. From that strong beginning for the commerce power, the Article follows the various detours of the United States Supreme Court cases, some cases imposing now rejected limits on the commerce power, some setting the foundation for the modern test. The main thrust of the Article is to argue that both in terms of history and in terms of our federalist form of government that Congress’ commerce power in instances not involving the actual crossing of state lines should be limited to local activities that in a practical fact-based way have a substantial impact on interstate commerce. The Article asserts that the rational basis test should have no role to play in determining Congress’ power to regulate interstate commerce, that the rational basis test is not only historically unsupportable, but that it also represents a failure of the Court to play its appropriate role in protecting “Our Federalism.