“Necessary and proper” arguments require a look at what actually happens in the world, and Sam Bagenstos raises the entirely sensible point that the Court may be reluctant to make its own judgments on such questions. But such deference stems from arguments about comparative institutional competence between courts and legislatures, not from the Supremacy Clause. (As Thomas’s dissent points out, one can’t invoke the Supremacy Clause until one determines that the law actually is within Congress’s power.) We might want to defer to legislatures because they’re better factfinders or more democratically accountable. But when the state is pursuing its own regulatory program, there are two legislatures in the picture — Congress and the state — not one. By what criterion should the Court automatically defer to Congress’s judgment that the state regulatory program will be ineffective, rather than the state’s contrary judgment?

One might resolve this dilemma in several ways, which we suggested in the scholars’ brief. Even if one were to give some primacy to federal legislative judgments, one might require Congress to actually evaluate the state legislative program it is preempting. In Raich, no federal entity other than the Justice Department’s lawyers had made any such judgment. Insisting on such a judgment would breathe some plausibility back into the political safeguards of federalism.

Alternatively, a court might review the federal judgment to see whether it’s supported by evidence. No such evidence had been put forward in Raich, which was appealed at the preliminary injunction stage.

The point is that only one democratic entity had made any judgment about the effectiveness of CA’s regulatory program, and that was CA itself. What the Court deferred to, instead, was the litigation position of the Justice Department. When the Court tries to play the role of referee between state and federal power, it can’t 1) allow the Feds to do anything “necessary” to an enumerated power, 2) defer to federal judgments about what’s necessary, and 3) be indifferent to which federal entities actually make that judgment, without eliminating the principle of enumerated powers altogether. The Court’s instinctive preference for federal judgments show why it was never a realistic fear that the Supreme Court would over-limit national power.

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