Wednesbury across the Atlantic

Speaking of Lawrence Solum, he references an interesting article by Ilya Somin (George Mason Uni) on the US Supreme Court's decision in Gonzales v Raich (2005) (USSC), called Gonzales v. Raich: Federalism as a Casualty of the War on Drugs.

For the non-US lawyer, this has two especial points of interest:

1. the remarkable width given (as usual) to the 'Commerce Clause' of the US Constitution. So much for checking the legislature ...
   
2. the 'rational basis' standard of review for Congress' decision to use the Commerce Clause to legislate in this area - that no specific evidence is needed - see references from notes 26 and 51, and sections IC and ID. In effect, a Congressional lawyer need only come up with some plausible reason for supposing that this matter may affect interstate commerce - and then they can. That narrower interpretations of 'rational basis' have been preferred in the past (note 55 cites Romer v Evans (1996)) simply underscores the point - that this is remarkably like the (allegedly) 'bad old days' of the Wednesbury test for unreasonableness test in the UK.