Gonzales v. Oregon

[Samuel Bagenstos]

Can anyone explain why the last paragraph of Justice Thomas's dissent makes any sense?  If Justice Thomas really believes that Congress doesn't have power to regulate intrastate medical practice, but a majority of the Court disagrees, why shouldn't he go along with a rule that says that we're not going lightly to assume that Congress has exercised that authority?  And is it fair for him to say the majority (with the exception, I suppose, of Justice O'Connor) is acting in a manner inconsistent with their positions in Raich?  One can criticize the position, but its certainly coherent, isn't it, to say that Congress has broad power but we want to be sure that Congress meant to make the change in the federal-state balance that it made?  (Leave aside here the fact that the majority doesn't even really rely on a plain-statement rule -- the federalism issues come into the analysis as sort of standard pieces of statutory interpretation analysis.)

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Samuel R. Bagenstos
Professor of Law
Washington University School of Law
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