So now that all (but one) of the briefs have been filed in advance the District Court's decision on the cross-motions for summary judgment in Virginia v. Sebelius, we can reflect a bit on the content of those arguments.
And one of the arguments that I found striking--specifically as presented in the CATO brief, repeating what Randy Barnett has argued in his Hayek lecture--is that, under Gonzales v. Raich, the disputed activity that Congress can reach through its regulatory scheme must be "economic" in nature. That is, it is not enough that that broader regulatory scheme (in Raich, the Controlled Substances Act) target economic or commercial activity. Rather, argues Barnett, even the conduct that Congress reaches incidentally in service of that broader regulatory scheme--the conduct that Congress believes it must also regulate in order to prevent that scheme from being undercut--must be economic as well, otherwise it falls outside the commerce power. In essence, Barnett is arguing that, had the Court concluded in Raich that the personal, non-commercial cultivation and possession of marijuana for medicinal purposes were not "economic" activities, then the result would have been different.
There is some language in Raich that, when viewed in isolation, lends some support to this interpretation. But I do not believe that this is the best reading of the opinion, read in its entirety. Rather, the logic of Raich indicates that whether Angel Raich's particular activity was properly described as "economic" was ultimately irrelevant to the Court's holding (or at least its principal basis).
Why? First, section III of the Court's opinion in Raich, which seems to stand on its own as a justification for the holding, nowhere mentions the "economic" nature of Raich's conduct or of the cultivation of marijuana. And it is section III that lays out the basic rationale of the opinion--that when Congress enacts a broad regulatory scheme that clearly targets economic or commercial activity, it can regulate intrastate, non-commercial instances of that activity as well. To the extent the Court discusses the economic nature of any activity, it is the activity targeted by the CSA as a whole.
Second, section IV likewise does not seem to pin any of its reasoning on whether Angel Raich was engaged in economic activity. The Court might have so concluded, but there is nothing in the analysis, to me anyway, that seems to depend on this conclusion.
Finally, and perhaps most importantly, were Barnett's interpretation correct, it would be very hard to square Lopez with Raich. The Court in Lopez definitively stated that the possession of a gun in a school zone is not economic or commercial in nature. Presumably, the same is true for the simple possession of marijuana. That means that, if (as Barnett argues) Congress cannot reach any non-economic conduct through a broad regulatory scheme such as the CSA, it also cannot regulate the simple possession of drugs. Yet the Court itself in Raich stated that the CSA's prohibition on possession was within the commerce power (perhaps as augmented by the Necessary and Proper Clause). Specifically, the Court stated that "[p]rohibiting the intrastate possession or manufacture of an article of commerce is a rational (and commonly utilized) means of regulating commerce in that product." Thus, Raich itself plainly endorses Congress's capacity to regulate a non-economic activity when doing so is a necessary and proper means of implementing a broader regulatory scheme, which scheme regulates an interstate commercial market.
Of course, there remains the question of whether Congress can regulate "inactivity" using this same logic (and whether the conduct regulated by the minimum coverage requirement is aptly described as "inactivity"). Regulating non-action might fall beyond the logic of Raich. (Alternatively, forcing an individual to engage in a commercial transaction with a third party might be considered "improper" for purposes of the Necessary and Proper Clause.)
But those are different issues. The point here--and I think the point on which Barnett misreads Raich--is that whether the conduct ultimately reached by Congress (as a necessary means to implementing a broader regulation of interstate commerce) is economic in nature is immaterial under the logic of Raich.
