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Commerce Clause, medical marijuana, game theory, prisoners' dilemma, Nash Equilibrium


The Roberts Court emerges at a critical juncture in the development of Commerce Clause doctrine. While the Commerce Clause doctrine implicates concerns for federalism and separation of powers, both of which are rooted in the earliest part of our constitutional history, the new Court presents an ideal opportunity to critically assess existing doctrines and to develop new analytical paradigms. The Rehnquist Court succeeded for the first time in sixty years in imposing substantive limits on the scope of this important source of Congressional power. That Court proved far less successful, however, in developing a coherent normative theory that reconciles the new doctrinal limitations with the traditional broad scope of the post-New Deal Commerce Clause cases. This Article’s new game theoretical analysis satisfies these objectives by offering a compelling normative account of Commerce Clause doctrine and a framework for applying the new methodology to actual cases. The Rehnquist Court announced the new Commerce Clause doctrine in the 1995 decision, Lopez v. United States, which struck down the Gun-Free School Zones Act. The Lopez Court changed the longstanding test governing the scope of Congress’s Commerce Clause powers, set out in the infamous 1942 case, Wickard v. Filburn. While prior cases had used “economic” to qualify the effects that the underlying regulated activity had on commerce, the Lopez Court instead used economic to qualify the activity itself. In the 2000 decision, Morrison v. United States, the Court applied the non-economic activities test to strike down the civil remedies provisions of the Violence Against Women Act despite extensive Congressional findings. Most recently, in the 2005 case, Gonzales v. Raich, the Supreme Court applied this test to sustain the Controlled Substances Act’s complete ban on private use of marijuana, as applied to two women who had cultivated or otherwise acquired marijuana for the treatment of severe pain pursuant to the California Compassionate Use Act, despite the apparent local nature of the regulated activity. Notably, the Raich Court produced four separate opinions, none of which offered a satisfying framework that reconciles the expansive post-New Deal Commerce Clause precedents with the recent retrenchments represented in Lopez and Morrison. This Article traces the Lopez Court’s doctrinal modification, explores its implications, and offers an alternative game theoretical analysis that considers the need for a central coordinating authority to effectuate the Congressional policy enacted pursuant to the Commerce Clause. Drawing upon the prisoners’ dilemma and the multiple Nash equilibrium bargaining game, this Article grounds the larger goals of the Commerce Clause doctrine in an effort to ensure that Congress has the necessary regulatory authority with which to implement desired policies substantially affecting interstate commerce that states, acting in their individual capacities, would either be unable to implement or would be prone to obstruct. The analysis reconciles the expansive post-New Deal Commerce Clause cases with the more recent retrenchments, embodied in Lopez and in Morrison. While this Article will offer a critical assessment of the Lopez non-economic activities test and of the application of that test in Raich, its larger objective is consistent with the doctrine’s goals as expressed by now-retired Associate Justice Sandra Day O’Connor. The goal of Commerce Clause doctrine is to allow Congress to “regulate more than nothing . . . but less than everything.” Satisfying these objectives is essential to preserving the integrity of our federal constitutional system which, in contrast with its state counterparts, rests upon the concept of delegated rather than plenary powers. This Article’s analysis, which uses game theory to satisfy these goals, should have broad appeal to members of the Roberts Court.

Publication Citation

60 Vanderbilt Law Review 1 (2007).


Constitutional Law | Law