Lopez, Morrison & Raich

I think the distinction the Court makes between Lopez & Morrison on the one hand, and Raich (and Wickard) on the other is that the latter cases involved regulation of "quintessentially economic" activities that substantially effect interstate markets. The Court defined economic activity as "the production, distribution, and consumption of commodities for which there is an established, and lucrative interstate market."  Casebook p. 178

Do you agree with this distinction? What do you think of Justice O'Connor's dissenting argument in which she says the Ct's definition of economic activity is so broad that it "threatens to sweep all of productive human activity into federal regulatory reach."  Is day care at home by parents an economic activity similar to commercial day care? Is playing charades or other games at home an economic substitute for going to the movies? 

Can Congress legislate under the Commerce power to limit our charades games at home to one per week to try to encourage more of us to buy a ticket to the movies? 

Can Congress regulate home care of children by forbidding home care during normal business hours (to protect the day care industry from unfair competition by parents) or by requiring "caregivers" (parents) to read at least 2 "multicultural books" per week during the day care hours to the "care recipients" (their own children)?

Can Congress enact a law forbidding home grown vegetable gardens?

 If you disagree with Raich, must you vote to overrule Wickard as well? I think you do, but I could be wrong about this.

Take a look at the Court's discussion of the continuing control of Wickard on pages 175-176. This is the current Commerce Clause doctrine.

Justice O'Connor, noting that the California Compassionate Use Act "exemplifies the role of States as laboratories," invokes the 10th Amendment and observes that California "has drawn on its reserved powers to distinguish the regulation of medical marijuana." How should the 10th Amendment affect Commerce Clause analysis? Should the Court always remember that when it interprets the Commerce Clause broadly to advance Congressional power it necessarily causes the 10th Amendment to retreat in its protection of the reserved powers of the states? If Congress has virtually unlimited power under the Commerce Clause, what power is left for states to exercise under the 10th Amendment?

Suppose California decides to legalize recreational use of marijuana in the home by treating it the same way it treats alcoholic beverages. Should this "experiment" by California trump federal drug laws criminalizing the possession or use of marijuana? How is this different from "medical" use of marijuana? Is the difference that only more affluent Californians can afford to shop for a "weed doc" to write them a scrip for "medical" marijuana?

What about federal gun control laws; should states be allowed to opt of of these laws by allowing guns to be purchased without federally-mandated background checks?