Raich turned on an ingenious argument by the plaintiffs: They defined a class — medical marijuana for personal use as authorized by state law — and argued that because this class was analytically distinct and had no significant cumulative effects on interstate commerce it was not within Congress’s Commerce power. The majority rejected the argument; the fact that one can imagine such carveouts does not require the Congress must exempt them, nor does the Constitution withdraw these carveouts from the Commerce Power. If purely intrastate activity comes within a more comprehensive general scheme of regulation, Congress may reach it under its Commerce Power. Justice Scalia puts the matter somewhat differently: he points out that Congress has the power under the Necessary and Proper Clause to reach intrastate activity, even if it is not economic in character, if failure to reach this activity would frustrate Congress’s goals of facilitating, regulating, or prohibiting a more general class of interstate commerce. Thus, Scalia argues that even if homegrown medical marijuana for personal use is not commerce and is not even economic activity, Congress could reasonably conclude that including it in the general prohibition would facilitate Congress’s general policy of regulating controlled substances, and that failing to include homegrown medical marijuana would frustrate Congress’s policy objectives. In some ways Scalia’s argument is more modest than that of the majority, but in other ways his point gives Congress even greater powers to reach noneconomic activity.

Raich distinguishes Morrison and Lopez on the grounds that the activities regulated in those cases (guns near schools and violence against women) were not part of a more general regulatory scheme that was primarily aimed at economic activity.

The effect of Raich’s distinction of Lopez and Morrison is that Congress may not “grandstand” by picking out particular instances of non-economic local conduct and regulating them (a point that, I believe, applies more properly to Lopez than to Morrison). Instead, Congress must aim at and produce comprehensive schemes of regulation of economic activity. This “anti-grandstanding” rule may have interesting effects on the collations necessary to get legislation passed. The broader the scheme, the more likely there will be resistance, so what I am calling the “anti-grandstanding” doctrine puts a modest constraint on regulation.

If Congress does pass a comprehensive scheme, however, the Court will uphold it, even if it reaches intrastate activities, and clever plaintiffs like those in Raich may not come up with carveouts and assert that these are beyond the Commerce Power.