31 William Mitchell Law Review 957 (2004-2005)
This article considers to what extent health care may be viewed as a traditional area of state concern in the context of the Supreme Court’s revival of federalism principles, in particular limits on Congress’ Commerce Clause power, and what effect Raich v. Ashcroft, heard by the Court in the fall 2004 term, might have on these issues. Addressing these questions will necessarily involve exploration of medical marijuana policy as well as the role of the “traditional state interest” principle within the Commerce Clause. However, the central focus of this article is not what impact Raich may have on the Commerce Clause or our nation’s drug laws, but what effect it might have on health care issues. We start by briefly examining medical marijuana in Part II: the debate over its efficacy, regulatory history, and current trends in both cultural and legal spheres. We then review the Court’s recent Commerce Clause jurisprudence, with a focus on the role of the traditional state interest factor in the analysis, and provide an overview of Raich. In Part IV, we provide a historical look at the traditional role of states in regulating health care and compare that with the more recent expansion of federal health care regulation. Part V then provides an overview and examples of how the traditional state interest issue may impact future health care regulation in four different fields.
Kreit, Alex and Marcus, Aaron
"Raich, Health Care, and the Commerce Clause,"
William Mitchell Law Review: Vol. 31
, Article 7.
Available at: http://open.mitchellhamline.edu/wmlr/vol31/iss3/7