Amicus Curiae Brief — John Ream, Petitioner v. Department of the Treasury, et al.

No. 26-93

In the

Supreme Court of the United States

JOHN REAM,

v.

Petitioner,

DEPARTMENT OF THE TREASURY, et al.,

Respondents.

On Petition for a Writ of Certiorari

to the United States Court of Appeals

for the Sixth Circuit

BRIEF OF AMICUS CURIAE

CENTER FOR INDIVIDUAL RIGHTS

IN SUPPORT OF PETITIONER

MICHAEL ROSMAN

CALEB KRUCKENBERG

MIKE A. PETRINO

TODD GAZIANO

CENTER FOR INDIVIDUAL

RIGHTS

1100 CONN. AVE., NW

WASHINGTON, DC 20036

MICHAEL H. MCGINLEY

Counsel of Record

CORY J. KOPICKI

DECHERT LLP

Cira Centre

2929 Arch Street

Philadelphia, PA 19104

(215) 994-2463

michael.mcginley@dechert.com

GARY M. DREYER

DANIEL FAWCETT

DECHERT LLP

1095 Avenue of the Americas

New York, NY 10036

Counsel for Amicus Curiae

August 20, 2026

i

TABLE OF CONTENTS

INTEREST OF AMICUS CURIAE ............................ 1

INTRODUCTION AND

SUMMARY OF

ARGUMENT ............................................................ 2

ARGUMENT ............................................................... 4

I.

The Constitution Created a Federal

Government of Limited Powers .......................... 4

II. Under the Original Meaning of the Interstate

Commerce Clause, Congress May Regulate

Only Trade, Exchange, or Commercial Traffic

Concerning Multiple States ................................ 6

A. The Court’s First Major Interpretation of

the Clause Held that Congress May

Regulate Only Commerce Itself, and

Only if It Concerned Multiple States .......... 6

B. Historical

Sources

Show

That

“Commerce” Means Trade, Exchange, or

Commercial Traffic ....................................... 8

III. The “Substantial Effects” Test Plainly

Conflicts with the Text and Original Meaning

of the Interstate Commerce Clause .................. 11

IV. Raich Was Wrongly Decided and Should Be

Limited or Overruled......................................... 14

A. Raich’s “Class of Activities” Reasoning

Obliterates the Distinction Between

Commerce and Production ......................... 14

B. The “Class of Activities” Framework Has

No Limiting Principle................................. 17

C. NFIB Reiterated That the Commerce

Clause Must Have Limits .......................... 18

ii

D. If Raich Is Not Overruled, It Should Be

Confined to Suppression of Contraband

Markets ....................................................... 20

E. The Court’s Post-Raich Citations to That

Case Are Narrow and Do Not Endorse

Unlimited Aggregation ............................... 22

CONCLUSION ......................................................... 26

iii

TABLE OF AUTHORITIES

Page(s)

Cases

Alabama Ass’n of Realtors v. Dep’t of

Health & Hum. Servs.,

594 U.S. 758 (2021) .............................................. 17

Bond v. United States (Bond I),

564 U.S. 211 (2011) ................................................ 6

Bond v. United States (Bond II),

572 U.S. 844 (2014) .................................. 23, 24, 25

Cohens v. Virginia,

19 U.S. 264 (1821) ............................................ 2, 12

Gibbons v. Ogden,

22 U.S. 1 (1824) .................................... 2, 4, 6, 7, 11

Garcia v. San Antonio Metro. Transit

Auth., 469 U.S. 528 (1985) .................................. 21

Gonzales v. Raich,

545 U.S. 1 (2005) .......................2-4, 6, 12-16, 20-25

Landor v. Louisiana Dep’t of Corr. &

Pub. Safety,

146 S. Ct. 1931 (2026) .................................... 24, 25

McCulloch v. Maryland,

17 U.S. 316 (1819) ...................................... 4, 22, 24

iv

New York v. United States,

505 U.S. 144 (1992) ................................................ 5

NFIB v. Sebelius,

567 U.S. 519 (2012) .......... 2-5, 14, 18-20, 22, 24, 25

Printz v. United States,

521 U.S. 898 (1997). ............................................. 24

Sackett v. EPA,

598 U.S. 651 (2023) .............................................. 17

Solid Waste Agency of N. Cook Cnty. v.

United States Army Corps of Eng’rs,

531 U.S. 159 (2001) ................................................ 2

Taylor v. United States,

579 U.S. 301 (2016) ........................................ 24, 25

Tex. Top Cop Shop, Inc. v. Garland,

758 F. Supp. 3d 607 (E.D. Tex. 2024),

stay granted sub nom. McHenry v.

Tex. Top Cop Shop, Inc., 145 S. Ct. 1

(2025) ...................................................................... 1

United States v. Comstock,

560 U.S. 126 (2010) ........................................ 22, 25

United States v. Kebodeaux,

570 U.S. 387 (2013) ........................................ 23, 25

United States v. Lopez,

514 U.S. 549 (1995) .............. 2-4, 6, 8-16, 18, 21, 25

United States v. Morrison,

529 U.S. 598 (2000).......1, 2, 4, 13, 14, 16, 18, 19, 21

v

West Virginia v. EPA,

597 U.S. 697 (2022) .............................................. 16

Wickard v. Filburn,

317 U.S. 111 (1942) ........................................ 17, 21

Constitutional Provisions

U.S. Const. art. I, § 8, cl. 3 ........................................ 11

U.S. Const. art. I, § 9 ............................................. 7, 10

Other Authorities

THE FEDERALIST NO. 17 (Alexander

Hamilton).......................................................... 9, 15

THE FEDERALIST NO. 45 (James

Madison) ....................................................... 4, 5, 13

THE FEDERALIST NO. 51 (James

Madison) ................................................................. 6

Grant S. Nelson & Robert J. Pushaw,

Jr., Rethinking the Commerce

Clause: Applying First Principles to

Uphold Federal Commercial

Regulations but Preserve State

Control Over Social Issues, 85 IOWA

L. REV. 1 (2000)............................................... 11, 12

Randy E. Barnett, New Evidence of the

Original Meaning of the Commerce

Clause, 55 ARK. L. REV. 847 (2001) ...................... 10

vi

Randy E. Barnett, The Original

Meaning of the Commerce Clause, 68

U. CHI. L. REV. 101 (2001) ........................ 7, 8, 9, 10

Raoul Berger, Judicial Manipulation of

the Commerce Clause, 74 TEX. L.

REV. 695 (1996)..................................................... 11

Richard A. Epstein, The Proper Scope of

the Commerce Power, 73 VA. L. REV.

1387 (1987) ........................................................... 10

Samuel Johnson, Dictionary of the

English Language (7th ed. 1785) ........................... 8

Thomas Sheridan, Complete Dictionary

of the English Language (6th ed.

1796) ....................................................................... 8

Webster’s Third New International

Dictionary (1966) ........................................ 3, 15, 19

1

INTEREST OF AMICUS CURIAE1

The Center for Individual Rights (CIR) is a

nonprofit, public interest law firm dedicated to

defending individual rights essential to a free and

flourishing society. CIR recognizes that protecting

individual

rights

requires

maintaining

the

constitutionally defined roles of state and federal

governments.

Through its Project to Restore

Competitive Federalism, CIR identifies and develops

significant cases aimed at strengthening the Framers’

intended federal structure, in which competition

between state and national governments, and between

different states, serves as a vital safeguard for

individual rights.

In keeping with that philosophy, CIR has a strong

interest in preventing federal overreach and has been

at the forefront of efforts to provide meaningful limits

to congressional power under the Commerce Clause.

CIR represents plaintiffs challenging the Corporate

Transparency Act. Tex. Top Cop Shop, Inc. v.

Garland, 758 F. Supp. 3d 607, 619 (E.D. Tex. 2024),

stay granted sub nom. McHenry v. Tex. Top Cop Shop,

Inc., 145 S. Ct. 1 (2025). It also represented one of the

defendants, and its General Counsel argued for both

defendants, in United States v. Morrison, 529 U.S. 598

(2000). CIR has also submitted amicus briefs in

No counsel for any party authored this brief in whole or in part,

and no party or counsel made a monetary contribution to the

preparation or submission of this brief. No person other than

amicus curiae, its members, or its counsel made a monetary

contribution to the preparation or submission of this brief.

Counsel for the Petitioner and Respondents were provided with

timely notice of this brief.

1

2

several federalism cases at the Supreme Court,

including United States Department of Health and

Human Services v. Florida, the companion case to

NFIB v. Sebelius, 567 U.S. 519 (2012), and Solid Waste

Agency of Northern Cook County v. United States

Army Corps of Engineers, 531 U.S. 159 (2001).

INTRODUCTION AND

SUMMARY OF ARGUMENT

Two decades ago, this Court took a wrong turn.

Instead of continuing to restore the Commerce Clause

to its original public meaning—a path set out in

United States v. Lopez, 514 U.S. 549 (1995) and United

States v. Morrison, 529 U.S. 598 (2000)—in Gonzales

v. Raich, 545 U.S. 1 (2005), this Court embraced the

broadest understanding of “interstate commerce” in

its history. Relying on a 1966 dictionary definition of

a word nowhere in the constitutional text, Raich

embraced a “breathtaking” definition of “economic

activity” that “threatens to sweep all of productive

human activity into federal regulatory reach.” Raich,

545 U.S. at 49 (O’Connor, J., dissenting). This Court’s

repeated unwillingness to embrace Raich’s reasoning

since then is itself an indictment of the decision’s

reasoning. Raich was wrong when it was decided, and

this case presents an appropriate vehicle for

correcting that constitutional misstep.

As this Court has recognized from its earliest

days, the Constitution’s structural limitations on the

federal government’s powers are central to its design.

The Court’s early cases, including Gibbons v. Ogden,

22 U.S. 1 (1824) and Cohens v. Virginia, 19 U.S. 264

(1821), underscored those limits. Modern scholarship,

including from Professors Randy Barnett, Richard

3

Epstein, and Robert Pushaw, Jr., shows that post-New

Deal Commerce Clause jurisprudence is irreconcilable

with the Clause’s original meaning. This Court should

return to the task Justice Thomas outlined in his

Lopez concurrence: reconsidering the “substantial

effects” test “with an eye toward constructing a

standard that reflects the text and history of the

Commerce Clause without totally rejecting our more

recent Commerce Clause jurisprudence.” Lopez, 514

U.S. at 585 (Thomas, J., concurring).

Constructing that standard today would require

the Court to limit or overrule Raich. Raich’s emphasis

on a “class of activities” erases the distinction between

commerce and production, leaving virtually no limit to

what Congress could regulate. See 545 U.S. at 17–18.

Recognizing that this analysis threatened to swallow

federalism wholesale, in NFIB, this Court moved

away from Raich’s framing: five justices reaffirmed

that “[t]he Commerce Clause is not a general license

to regulate an individual from cradle to grave.” 567

U.S. at 557. Neither the Chief Justice’s controlling

opinion nor the joint dissent endorsed Raich’s broader

reasoning, the Webster’s Dictionary definition of

“economics,” the rational basis standard, or the

proposition that mere possession of a commodity is

“quintessentially economic” activity subject to federal

regulation.

To the extent Raich is not overruled, it should be

cabined to contraband markets, not converted into a

general home-production rule.

The strongest

argument for Raich’s result, articulated in Justice

Scalia’s concurrence, was that prohibiting intrastate

cultivation and possession of marijuana was necessary

4

to effectuate Congress’s objective of extinguishing an

illegal interstate market, since the intrastate loophole

would otherwise be filled by local supply. 545 U.S. at

39–40 (Scalia, J., concurring).

None of those

conditions are present in the interstate market in

spirits, which Congress has sought to tax and

regulate, not extinguish.

And the Twenty-First

Amendment unambiguously leaves a substantial role

in regulating spirits to the States.

ARGUMENT

I.

The Constitution Created a

Government of Limited Powers.

Federal

“In our federal system, the National Government

possesses only limited powers; the States and the

People retain the remainder.” NFIB, 567 U.S. at 533.

That is so because the “Constitution create[d] a

Federal Government of enumerated powers.” Lopez,

514 U.S. at 552. That “enumeration presupposes

something not enumerated.” Gibbons, 22 U.S. at 195.

The Federal Government “can exercise only the

powers granted to it.” McCulloch v. Maryland, 17 U.S.

316, 405 (1819). Those powers “delegated . . . to the

federal government are few and defined.” Lopez, 514

U.S. at 552 (quoting THE FEDERALIST NO. 45, at 292–

93 (James Madison) (Clinton Rossiter ed., 1961)).

“Every law enacted by Congress must be based on one

or more of its powers enumerated in the Constitution,”

and if none authorizes a law, it may not be enacted,

even absent an express constitutional prohibition. See

Morrison, 529 U.S. at 607; NFIB, 567 U.S. at 535.

The original Constitution did not include the Bill of

Rights “partly because the Framers felt the

5

enumeration of powers sufficed to restrain the

government.” NFIB, 567 U.S. at 535. “When the Bill

of Rights was ratified, it made express what the

enumeration of powers necessarily implied: ‘The

powers not delegated to the United States by the

Constitution . . . are reserved to the States

respectively, or to the people.’” Id. (quoting U.S.

Const. Amend. X). Although the Federal Government

has expanded dramatically since the Founding, “it still

must show that a constitutional grant of power

authorizes each of its actions.” Id.

By limiting the Federal Government’s authority,

the Framers ensured that many aspects of

government and American life would be reserved to

the States, so that “the facets of governing that touch

on citizens’ daily lives” would come from “smaller

governments closer to the governed.” Id. at 536.

“[G]overnments more local and more accountable than

a distant federal bureaucracy,” id., should wield the

powers that, “in the ordinary course of affairs, concern

the lives, liberties, and properties of the people.” Id.

(quoting THE FEDERALIST NO. 45, at 293 (James

Madison) (Clinton Rossiter ed., 1961)).

That system is more democratic and better

preserves freedom.

It is “for the protection of

individuals” that the “Constitution divides authority

between federal and state governments.” New York v.

United States, 505 U.S. 144, 181 (1992). “Just as the

separation and independence of the coordinate

branches of the Federal Government serve to prevent

the accumulation of excessive power in any one

branch, a healthy balance of power between the States

and the Federal Government [reduces] the risk of

6

tyranny and abuse from either front.” Lopez, 514 U.S.

at 552 (quotation marks omitted); see also THE

FEDERALIST NO. 51 (James Madison), at 323 (Clinton

Rossiter ed., 1961). “By denying any one government

complete jurisdiction over all the concerns of public

life,” the Constitution “protects the liberty of the

individual.” Bond v. United States (Bond I), 564 U.S.

211, 222 (2011). Any interpretation of the Commerce

Clause should respect these background principles.

II.

Under the Original Meaning of the

Interstate Commerce Clause, Congress May

Regulate Only Trade, Exchange, or

Commercial Traffic Concerning Multiple

States.

“At the time the original Constitution was ratified,

commerce consisted of selling, buying, and bartering,

as well as transporting for these purposes.” Lopez, 514

U.S. at 585 (Thomas, J., concurring). Congress could

regulate only trade or exchange concerning more

states than one. Raich, 545 U.S. at 58 (Thomas, J.,

dissenting). This Court’s early case law, historical

evidence, and structural principles confirm that

original understanding.

A.

The Court’s First Major Interpretation

of the Clause Held that Congress May

Regulate Only Commerce Itself, and

Only if It Concerned Multiple States.

This Court’s early decisions were consistent with

the Commerce Clause’s original public meaning.

Gibbons v. Ogden established two key points:

Congress cannot regulate an activity unless the

activity itself is commercial, see 22 U.S. at 189, and

7

Congress cannot regulate wholly intrastate

commercial activity, see id. at 194–95. But subsequent

caselaw has, given short shrift to these principles.

In Gibbons, the Court examined whether a federal

law licensing ships to engage in “coasting trade”

preempted a state law granting a 30-year monopoly to

navigate the State’s waterways by steamship. The

Court held it did, determining that “commerce”

included navigation: Congress could not exercise its

power “to regulate commerce with foreign nations”

without reaching navigation, since the word commerce

“must carry the same meaning throughout the

sentence.” Id. at 189, 194. Other constitutional

provisions necessarily assumed Congress had power

under the Commerce Clause to regulate commercial

navigation, because they limited the exercise of that

power. See U.S. Const. art. I, § 9; see also Randy E.

Barnett, The Original Meaning of the Commerce

Clause, 68 U. CHI. L. REV. 101, 125 (2001). Although

Gibbons laid down no exhaustive test for “commerce,”

it made clear the regulated activity must be, at

minimum, commercial. 22 U.S. at 189–90. Justice

Johnson’s concurrence agreed that navigation was

encompassed within “the thing [i.e., commerce] itself.”

Id. at 229 (Johnson, J., concurring).

Gibbons also held that Congress cannot regulate

commercial activity confined to one state, because that

would not be commerce “among the States.” Id. at 194.

The “completely interior traffic of a State” falls outside

Congress’s authority, and commerce “completely

internal . . . which does not extend to or affect other

States,” is simply not commerce “among the States.”

Id. The “internal commerce of a State” is “reserved for

8

the State itself,” and thus its regulation was not

surrendered to the general government. Id. at 195,

203.

B.

Historical

Sources

Show

That

“Commerce” Means Trade, Exchange,

or Commercial Traffic.

Founding-era

documents

consistently

use

commerce to mean trade, exchange, and commercial

traffic.

Contemporaneous dictionaries offer an

appropriate starting point: the 1785 edition of Samuel

Johnson’s Dictionary of the English Language defines

commerce as “[i]ntercourse; exchange of one thing for

another; interchange of any thing; trade; traffic,” and

the 1796 edition of Thomas Sheridan’s Complete

Dictionary of the English Language likewise defines

commerce as “[e]xchange of one thing for another;

trade, traffick.” Those definitions find support in the

word’s etymology, which literally means with

merchandise. Lopez, 514 U.S. at 586 (Thomas, J.,

concurring). The members of the Constitutional

Convention understood the term the same way. In

Madison’s notes, “commerce” appears thirty-four

times in the delegates’ speeches; eight unambiguously

reference commerce with foreign nations, which can

only consist of trade, and in every other instance

“trade” or “exchange” could be substituted with the

apparent meaning preserved.

Barnett, Original

Meaning at 114.

“In no instance is the term

‘commerce’ clearly used to refer to . . . anything

broader than trade.” Id. at 115.

The term was explicitly used in “contradistinction

to productive activities such as manufacturing and

agriculture.” Lopez, 514 U.S. at 586 (Thomas, J.,

9

concurring).

During the Convention, Madison

proposed to give Congress the “[p]ower to establish

public institutions, rewards, and immunities for the

promotion of agriculture, commerce, trades and

manufactures.” Barnett, Original Meaning at 115.

This strongly suggests the delegates understood

“commerce” to mean trade or exchange, distinct from

the productive processes that made the things to be

traded; if commerce itself covered agriculture and

manufacturing, Madison would have had no reason to

specify all three.

Usage during the ratification debates bolsters that

view. The Federalist Papers “repeatedly treated

commerce, agriculture, and manufacturing as three

separate endeavors.” Lopez, 514 U.S. at 586 (Thomas,

J., concurring). Even “ardent nationalist Alexander

Hamilton repeatedly made clear the commonplace

distinction between commerce or trade and

production.” Barnett, Original Meaning at 115. In

FEDERALIST NO. 17, he distinguished the power to

regulate national matters like commerce from “the

supervision of agriculture and of other concerns of a

similar nature,” properly the subject of “local

legislation.”

Barnett, Original Meaning at 115

(quoting The FEDERALIST NO. 17 (Alexander

Hamilton), at 118 (Clinton Rossiter ed., 1961)). The

state ratification conventions made the same

distinctions, and “[i]n none of the sixty-three

appearances of the term ‘commerce’ in The Federalist

Papers is it ever used to unambiguously refer to any

activity beyond trade or exchange.” Barnett, Original

Meaning at 116.

When Federalists and AntiFederalists discussed the Commerce Clause during

ratification, they routinely used “trade” and

10

“commerce” interchangeably. Lopez, 514 U.S. at 586

(Thomas, J., concurring); see also Barnett, Original

Meaning at 116.

Prominent Founding-era newspapers confirm this

usage. The Pennsylvania Gazette, which “from 1729

to 1766 was published by Benjamin Franklin,” used

the term commerce 1,594 times between 1728 and

1800. Randy E. Barnett, New Evidence of the Original

Meaning of the Commerce Clause, 55 ARK. L. REV. 847,

856–57 (2001). As in other Founding-era sources, the

newspaper “routinely used [commerce] to refer to

trade or exchange” and “routinely distinguished [it]

from agriculture and manufacturing.” Id. at 858.

“[T]he normal, conventional, and commonplace public

meaning of commerce from 1728–1800 was ‘trade and

exchange,’ as well as transportation for this purpose.”

Id. at 862.

“[T]his view of commerce as trade is consistent

with the other prominent mention of the word

commerce in the Constitution.” Richard A. Epstein,

The Proper Scope of the Commerce Power, 73 VA. L.

REV. 1387, 1395 (1987). Article I, § 9, states that “[n]o

preference shall be given by any Regulation of

Commerce or Revenue to the Ports of one State over

those of another[.]” “Although it is possible to conceive

of regulations of manufacturing or farming that prefer

one port over another, the more natural reading is that

the Clause prohibits Congress from using its

commerce power to channel commerce through certain

favored ports.” Lopez, 514 U.S. at 587 (Thomas, J.,

concurring).

11

III. The “Substantial Effects” Test Plainly

Conflicts with the Text and Original

Meaning of the Interstate Commerce

Clause.

This Court’s interpretation of Congress’s power to

“regulate Commerce . . . among the several States,”

U.S. Const. art. I, § 8, cl. 3, “has drifted far from the

original understanding.” Lopez, 514 U.S. at 584

(Thomas, J., concurring). The current doctrine allows

Congress “to regulate purely local activities that are

part of an economic ‘class of activities’ that have a

substantial effect on interstate commerce.” Raich, 545

U.S. at 17 (quotations omitted).

The “New Deal Court invented” the substantial

effects test and “manipulated Gibbons and its progeny

to disguise the innovation.” Grant S. Nelson & Robert

J. Pushaw, Jr., Rethinking the Commerce Clause:

Applying First Principles to Uphold Federal

Commercial Regulations but Preserve State Control

Over Social Issues, 85 IOWA L. REV. 1, 91 (2000); see

also Raoul Berger, Judicial Manipulation of the

Commerce Clause, 74 TEX. L. REV. 695, 702 (1996).

The substantial effects test is unmoored from the

Constitution’s text and history and upends the entire

concept of a Federal Government “of limited and

enumerated powers.” Raich, 545 U.S. at 58 (Thomas,

J., dissenting).

Start with the text. Congress is authorized “[t]o

regulate commerce with foreign Nations, and among

the several States, and with the Indian tribes.” U.S.

Const. art. I, § 8, cl. 3. As Chief Justice Marshall put

it, the “subject to be regulated is commerce.” Gibbons,

22 U.S. at 189. “If a subject is not commerce, Congress

12

cannot regulate it, regardless of its impact on

interstate commerce.” Nelson & Pushaw, Rethinking

the Commerce Clause at 71. Yet activities that

substantially affect interstate commerce often do not

qualify as “commerce” under any definition. Raich,

545 U.S. at 69 (Thomas, J., dissenting). “[T]he

Framers could have drafted a ‘substantially affects

interstate commerce’ Clause,” but they did not. Lopez,

514 U.S. at 588 (Thomas, J., concurring). That is

because the Framers understood that most areas of

life, even with substantial effects on commerce, would

remain outside federal reach. Id. at 590.

The substantial effects test also makes “many of

Congress’ other enumerated powers under Art. 1, § 8,

. . . wholly superfluous.” Id. at 588. If Congress may

regulate all matters that substantially affect

commerce, there is no need for the Constitution to

specify that Congress may enact bankruptcy laws,

coin money, punish counterfeiters, establish post

offices, or grant patents and copyrights. Id. “Put

simply, much if not all of Art. 1, § 8, (including

portions of the Commerce Clause itself), would be

surplusage if Congress had been given authority over

matters

that

substantially

affect

interstate

commerce.” Id. at 589. An interpretation that “makes

the rest of § 8 superfluous simply cannot be correct,”

but that is precisely what the substantial effects test

does. Id.

Worse still, “the substantial effects test suffers

from the further flaw that it appears to grant Congress

a police power over the Nation.” Id. at 599–600. That

alone is reason to scrap it. See Cohens v. Virginia, 19

U.S. at 426, 428 (Congress has “no general right to

13

punish murder” and “cannot punish felonies

generally”). Whatever effect crime might have on

interstate commerce was regarded as “irrelevant to

the question of congressional power.” Lopez, 514 U.S.

at 597 (Thomas, J., concurring).

The test subjects nearly the entirety of American

life to federal regulation. The Federal Government

has taken over regulation of entire areas of traditional

state concern, including areas having nothing to do

with commercial activities. Because the Court has

declined to enforce the “outer limits of Congress’

Commerce Clause authority,” even “historic spheres of

state sovereignty” have given way to “excessive federal

encroachment,” upending “our federalist system of

government.” Raich, 545 U.S. at 42 (O’Connor, J.,

dissenting).

The substantial effects test thus

“subvert[s] basic principles of federalism” and “makes

a mockery of Madison’s assurance . . . that the ‘powers

delegated’ to the Federal Government are ‘few and

defined,’ while those of the States are ‘numerous and

indefinite.’” Id. at 65, 69 (Thomas, J., dissenting)

(quoting THE FEDERALIST NO. 45 (James Madison), at

313).

The “very notion of a ‘substantial effects’ test under

the Commerce Clause is inconsistent with the original

understanding of Congress’ powers and with this

Court’s early Commerce Clause cases.” Morrison, 529

U.S. at 627 (Thomas, J., concurring). By continuing to

apply this “rootless and malleable standard,” the

Court has encouraged the Federal Government to

persist in its view that the Commerce Clause has

virtually no limits. Id. The Court ought to temper its

Commerce Clause jurisprudence and make it more

14

consistent with the original understanding. Id. At the

very least, overruling Raich—the only case in which

this Court construed the Commerce Clause to reach

local activity entirely divorced from commerce—is a

good place to start.

IV. Raich Was Wrongly Decided and Should Be

Limited or Overruled.

Raich is the Government’s Commerce Clause

theory of last resort in this case, and for good reason.

Raich propounds near-total deference to congressional

assertions of regulatory necessity over intrastate

conduct and sweeps so broadly that it is difficult to

identify any human activity Congress could not reach

under its logic. That rule was wrong the day it was

issued, has been undermined by this Court’s

subsequent decisions, and should not be extended to

home distilling of spirits. At minimum, Raich must be

confined to the context from which it arose:

suppression of an illegal interstate market in

contraband. Applied beyond that context, Raich’s

aggregation principle leaves no meaningful limit on

Congress’s commerce power and cannot be reconciled

with Lopez, Morrison, or NFIB.

A.

Raich’s “Class of Activities” Reasoning

Obliterates the Distinction Between

Commerce and Production.

Raich authorized Congress to regulate “purely

intrastate activity that is not itself ‘commercial’”

whenever Congress concludes that failure to regulate

“that class of activity would undercut the regulation of

the interstate market in that commodity.” 545 U.S. at

18. The central flaw is not merely the breadth of this

15

formulation but the mechanism it employs:

aggregation of a “class of activities” defined by

reference to whether a national market for the

underlying commodity exists.

By that logic, home distilling of spirits might be

regulable, or prohibitable, as market-substituting

economic activity; so is home brewing, gardening,

baking, sewing, repair, and cooking. Each involves

local production of a commodity or service for which

an interstate market exists, and each could, in the

aggregate, substitute for commercial purchases and

thereby affect the commercial market. If a broad

reading of Raich’s “class of activities” framework is the

applicable test without some further limiting

principle, none of these quintessentially domestic

pursuits remains beyond Congress’s reach. Yet the

Framers understood that “the supervision of

agriculture” and kindred local activities were “proper

to be provided for by local legislation,” not the Federal

Government. THE FEDERALIST NO. 17 (Alexander

Hamilton). The Commerce Clause was not intended

to authorize federal regulation of the household

economy.

Raich’s error begins with its definition of

“economic” activity. Rather than drawing that line

from the Constitution’s text or the original

understanding of commerce—long recognized to

concern “the buying and selling of goods and services

trafficked across state lines,” Raich, 545 U.S. at 58

(Thomas, J., dissenting) (citing Lopez, 514 U.S. 549,

586–89 (1995) (Thomas, J., concurring))—the majority

reached for Webster’s Third New International

Dictionary (1966) and its definition of “economics” as

16

“the production, distribution, and consumption of

commodities.” Raich, 545 U.S. at 25–26. On this

foundation it concluded that even mere “possession or

manufacture of an article of commerce” was

“quintessentially economic” activity within federal

reach. Id. Lopez had said precisely the opposite. 514

U.S. at 551, 567. The majority’s recourse to a 1966

dictionary to interpret an eighteenth-century

provision, using a word that does not even appear in

the constitutional text, shows how far Raich strayed

from the Constitution’s proper moorings.

The result is a rule that draws “no line at all.”

Raich, 545 U.S. at 50 (O’Connor, J., dissenting). If

production of a commodity for which a national

market exists is enough, the class of activities

Congress may aggregate and regulate or prohibit is

coextensive with productive human activity itself.

Congress could ban home cooking on the theory that

home cooks substitute for restaurant meals subject to

excise taxes or reach home sewing because hobby

tailoring substitutes for the garment industry. No one

seriously contends the Commerce Clause was

designed to authorize federal regulation of these

activities, but an expansive interpretation of Raich

would provide no principled basis for excluding them.

Finally, Raich’s attempt to differentiate that case

from Lopez and Morrison because it involved a

“comprehensive statute,” Raich, 545 U.S. at 10, unlike

the narrower statutes in the other two cases, does not

withstand scrutiny. This Court has repeatedly, and

recently, emphasized the need to police the outer

boundaries of comprehensive statutory schemes, lest

they undermine the structural Constitution. See, e.g.,

17

West Virginia v. EPA, 597 U.S. 697 (2022) (applying

the major questions doctrine to the Clean Air Act);

Sackett v. EPA, 598 U.S. 651, 680 (2023) (an overly

broad interpretation of the Clean Water Act’s reach

would impinge on traditional state authority);

Alabama Ass’n of Realtors v. Dep’t of Health & Hum.

Servs., 594 U.S. 758, 764 (2021) (holding that “the

sheer scope of the CDC’s claimed authority under §

361(a) [of the Public Health Service Act] would counsel

against the Government’s interpretation”).

B.

The “Class of Activities” Framework

Has No Limiting Principle.

Raich bypassed this inquiry by redefining

“economic” to encompass anything involving the

production or consumption of commodities. But that

redefinition does not limit, it expands.

The

constitutional requirement that regulated activity be

“economic in nature” retains content only if it excludes

something: only if some activities, though perhaps

affecting markets in the aggregate, fall outside

Congress’s reach because they are not themselves

commercial, does the commerce power have

boundaries. The farmer in Wickard v. Filburn, 317

U.S. 111 (1942) was already a commercial participant

in the wheat market: he grew wheat for sale as well as

for his own use and operated under a federal acreage

quota designed to control that market. A homeowner

distilling spirits for personal enjoyment, a cook

preparing dinner, or a tailor making clothes for his

family are not participants in any market at all

because they operate no commercial enterprise for a

regulatory scheme to reach. Wickard stretched the

18

Commerce Clause as far as it had ever been stretched;

Raich functionally abolished its outer boundary.

Lopez and Morrison arrested this tendency by

insisting that courts examine the nature of the

regulated conduct itself. Lopez held the regulated

activity must “substantially affect[] interstate

commerce,” 514 U.S. at 559–60, and Morrison

confirmed the Court’s cases upholding Commerce

Clause regulation of intrastate activity had done so

“only where that activity is economic in nature.” 529

U.S. at 613. These decisions demanded a genuine

nexus between the regulated conduct and commerce,

not merely a nexus between the regulated class and

some notional national market.

This Court should restore that boundary.

Regulated activity must be genuinely economic—

involving buying, selling, or substantially affecting

commerce—not merely connected to an industry

others engage in commercially.

Without that

requirement, the “class of activities” framework

becomes an unlimited license to aggregate all local

activities.

C.

NFIB Reiterated That the Commerce

Clause Must Have Limits.

In NFIB, this Court reaffirmed what Lopez and

Morrison had established: “[t]he Commerce Clause is

not a general license to regulate an individual from

cradle to grave.” 567 U.S. at 557. Whatever Raich

may have allowed in the drug-prohibition context,

NFIB reaffirmed that Congress’s commerce power

“has limits,” id. at 554, that must preserve “the

19

Constitution’s distinction between national and local

authority.” Morrison, 529 U.S. at 615.

Both the Chief Justice’s controlling opinion and the

joint dissent in NFIB recharacterized Raich in terms

far narrower than Raich itself employed. The Chief

Justice described Raich as involving regulation of an

existing interstate market that would have been

“substantially undercut” had intrastate activities been

excluded. 567 U.S. at 561.

The joint dissent

characterized the intrastate regulation in Raich as

“the only practicable way of enabling the prohibition

of interstate traffic in marijuana to be effectively

enforced.” Id. at 654 (joint dissent). Neither opinion

endorsed Raich’s broader reasoning, the Webster’s

Dictionary definition of “economics,” the rational basis

standard of review, or the proposition that mere

possession of a commodity is “quintessentially

economic” activity subject to federal regulation. The

Court thus quietly abandoned the most expansive

elements of Raich’s analysis while purporting to

distinguish the case.

The implications for this case are significant.

NFIB’s recharacterization of Raich as an “interstate

market” case cannot plausibly support the

Government’s theory here. The federal prohibition on

home distilling does not prevent intrastate home

production from undermining an otherwise effective

federal prohibition on an interstate market; there is

no prohibition on the interstate sale of spirits, only an

excise tax. The statutory regime contemplates and

facilitates commercial distilling. The home-distilling

ban does not “fill a hole” in a comprehensive federal

scheme to suppress interstate commerce in spirits; it

20

excludes a class of persons entirely from the taxable

activity, reducing rather than protecting revenue. The

“interstate market” rationale that NFIB imputed to

Raich does not fit this case.

More

fundamentally,

extending

Raich’s

aggregation theory to home production of lawful

goods—spirits, beer, bread, vegetables—cannot be

reconciled with NFIB’s insistence that some domain of

individual activity must remain beyond Congress’s

commerce power. If the mere fact that a home

producer substitutes for a commercial producer

suffices, there is no such domain, because every act of

home production, in the aggregate, substitutes for

commercial production.

NFIB’s constitutional

commitment would be rendered academic.

D.

If Raich Is Not Overruled, It Should Be

Confined

to

Suppression

of

Contraband Markets.

Even if this Court declines to overrule Raich

outright, it should make clear that Raich’s

aggregation principle does not apply outside the

context in which it arose: the comprehensive federal

prohibition of an illegal interstate market in

contraband. That limiting principle is compelled by

the logic of Raich’s own reasoning and the demands of

constitutional coherence.

The strongest argument for the result in Raich,

though not for the breadth of its reasoning, was the

one Justice Scalia articulated in concurrence. As

Justice Scalia explained, prohibiting intrastate

cultivation and possession of marijuana was necessary

to effectuate Congress’s objective “to extinguish the

21

interstate market” in illegal drugs, since without

closing the intrastate loophole the federal prohibition

would be undermined by substitution of local supply.

Raich, 545 U.S. at 39–40 (Scalia, J., concurring).

Congress has not sought to extinguish the

interstate market in spirits; it taxes and regulates

that market through a robust, lawful, federally

supervised commercial distilling industry.

The

premise of Raich—that Congress must reach

intrastate production because a contraband interstate

market cannot otherwise be suppressed—has no

analog when the regulated commodity is legal, taxed,

and commercially produced under federal supervision.

Confining Raich to contraband markets would restore

coherence to the Court’s Commerce Clause

jurisprudence. Lopez and Morrison would remain

good law for the proposition that Congress may not

reach genuinely noncommercial local conduct.

Wickard would stand for the modest proposition that

commercial-scale farmers may be subject to federal

production quotas affecting market prices. And Raich

would stand only for the proposition that Congress

may close intrastate loopholes in a comprehensive

prohibition of an illegal interstate market.

That limiting construction is faithful to the Court’s

precedents and would spare it from confronting, case

after case, the logical endpoint of Raich’s reasoning: a

federal government of effectively plenary domestic

authority, constrained by nothing more than

Congress’s “underdeveloped capacity for selfrestraint.” Garcia v. San Antonio Metro. Transit

Auth., 469 U.S. 528, 588 (1985) (O’Connor, J.,

dissenting).

22

E.

The Court’s Post-Raich Citations to

That Case Are Narrow and Do Not

Endorse Unlimited Aggregation.

In the twenty years since Raich was decided, this

Court has cited it frequently but never to extend its

aggregation principle to new domains. That record

confirms Raich has been treated by subsequent

majorities as a case about a specific context—the

suppression of an illegal drug market—not a general

warrant for regulating local productive activity.

In United States v. Comstock, 560 U.S. 126 (2010),

the Court upheld a federal civil commitment statute

under the Necessary and Proper Clause using a

demanding five-factor inquiry that categorically

diverged from Raich’s deferential rational basis

review. The majority cited Raich only for the narrow

proposition that “a longstanding history of related

federal action . . . can nonetheless be ‘helpful in

reviewing the substance of a congressional statutory

scheme.’” Id. at 137 (quoting Raich, 545 U.S. at 21).

The rest of Comstock’s analysis—examining the

statute’s history, its modest scope, its accommodation

of state interests, and the strength of the link between

means and enumerated powers—reads far more like

McCulloch’s independent judicial assessment than

Raich’s deference. Justice Kennedy’s concurrence was

explicit that the Necessary and Proper cases require

“a tangible link to commerce, not a mere conceivable

rational relation.”

Id. at 152 (Kennedy, J.,

concurring). That standard is incompatible with

Raich’s invitation to defer to any rational

congressional judgment. In NFIB, as discussed above,

the Court characterized Raich as an “interstate

23

market” case and declined to extend the Commerce

Clause to authorize laws compelling market entry

through an individual mandate. 567 U.S. at 560–61;

id. at 654–55 (joint dissent).

United States v. Kebodeaux, 570 U.S. 387 (2013),

likewise shows the Court’s reluctance to embrace a

broad reading of Raich. The Court upheld sexoffender registration requirements under the

Necessary and Proper Clause, but the Chief Justice

concurred separately to insist that no federal “police

power” underlies such a result. Id. at 401–03 (Roberts,

C.J., concurring). “A power of that magnitude . . . is

not ‘consist[ent] with the letter and spirit of the

constitution,’ . . . and thus not a ‘proper [means] for

carrying into Execution’ the enumerated powers of the

Federal Government.”

Id. at 402–03 (citation

omitted). That principle, which Raich’s majority

never seriously engaged, forecloses the Government’s

theory here: if there is no federal police power to

regulate conduct for public safety, there is equally

none to prohibit local home production of lawful goods

for revenue-protection reasons.

Bond v. United States (Bond II), 572 U.S. 844

(2014), reinforced the point from a different angle.

Construing the federal chemical-weapons statute

narrowly to avoid constitutional doubt, the Court

started from the “background principle that Congress

does not normally intrude upon the police power of the

States.” Id. at 863. Although Bond II did not cite

Raich by name, its warning that a broad reading

“would transfer the statute from one whose core

concerns are acts of war, assassination, and terrorism

into a massive federal anti-poisoning regime that

24

reaches the simplest of assaults” mirrors the

structural objection to Raich’s logic.

Id.

An

aggregation principle with no limits converts the

Commerce Clause into a general domestic-regulation

power of precisely the kind the Constitution withheld

from the federal government.

Taylor v. United States, 579 U.S. 301 (2016), is the

clearest evidence that Raich is limited to the

contraband context. Taylor applied Raich to hold that,

because Congress may regulate the intrastate

possession and sale of illegal drugs, it may also

criminalize the robbery of those drugs. Id. at 309. But

the majority was careful to note the Court had “not

been asked to reconsider Raich,” and did not expand

“Raich’s interpretation of the scope of Congress’s

power under the Commerce Clause.” Id. Taylor thus

signals that Raich is a case about contraband, not a

general warrant for aggregating home productive

activity.

Finally, this Court’s majority opinion in Landor v.

Louisiana Department of Corrections & Public Safety,

146 S. Ct. 1931 (2026), its more recent foray into the

Necessary and Proper Clause, ignored Raich

altogether. Instead, Landor analyzed the issue under

McCulloch, emphasizing that while the Clause may

allow Congress to enact provisions incidental to its

spending power, it does not tolerate outcomes that

would “undermine the structure of [the federal]

government established by the Constitution,” NFIB,

567 U.S. at 559, or “violate[ ] the principle of state

sovereignty,” Printz v. United States, 521 U.S. 898,

924 (1997). Landor, 146 S. Ct. at 1946–48. The Court

accordingly declined to expand Congress’s Spending

25

Power because doing so would leave it “hard pressed

to posit any activity that Congress would be without

power to regulate.” Id. at 1947 (quoting Lopez, 514

U.S. at 564) (citation modified).

Taken together, this line of post-Raich authority

tells a consistent story: the Court has progressively

narrowed Raich’s practical scope without overruling

it—recharacterizing it as a drug-market case,

declining to extend its rational basis standard, and

repeatedly reaffirming that no federal police power

exists.

Taylor confines Raich to contraband.

Kebodeaux and Bond confirm there is no general

federal power to regulate local conduct under the guise

of necessity. Comstock and NFIB demonstrate that

the Court requires a genuine, demonstrated link

between means and enumerated power, not the mere

rational basis Raich provided. And Landor confirms

that while Raich continues to wither, Lopez remains

alive and well. That sub silentio erosion has costs: it

leaves lower courts without guidance, as the circuit

split before this Court demonstrates. This Court

should now make explicit what its recent decisions

have implied: Raich does not license unlimited

congressional aggregation of home productive

activities, and its application must be confined to its

proper context.

26

CONCLUSION

This Court should grant the petition for a writ of

certiorari.

Respectfully submitted,

MICHAEL ROSMAN

CALEB KRUCKENBERG

MIKE A. PETRINO

TODD GAZIANO

CENTER FOR INDIVIDUAL

RIGHTS

1100 CONN. AVE., NW

WASHINGTON, DC 20036

(202) 833-8400

MICHAEL H. MCGINLEY

Counsel of Record

CORY J. KOPICKI

DECHERT LLP

Cira Centre

2929 Arch Street

Philadelphia, PA 19104

michael.mcginley@dechert.com

(215) 994-2463

GARY M. DREYER

DANIEL FAWCETT

DECHERT LLP

1095 Avenue of the Americas

New York, NY 10036

Counsel for Amicus Curiae

August 20, 2026