From Volume 82, Number 1 (November 2008)
Almost four years after the Supreme Court decided Gonzales v. Raich, its uncertain effect on as-applied constitutional challenges remains visible in many lower federal court decisions. Circuit courts struggle to determine when and how to apply Raich’s “broad regulatory-scheme principle,” which, when liberally construed, states that Congress may regulate any intrastate activity so long as the regulation is rationally included within a broad statutory scheme. Lower federal courts are faced with unanswered questions about the scope of the broad regulatory-scheme principle, particularly whether the principle applies to a statute that does not regulate a “fungible commodity,” and whether Raich governs when the principle’s application will extinguish the viability of as-applied challenges to criminal statutes that include explicit jurisdictional elements. The latter of these two questions provides the basis for this Note, which suggests an answer to the jurisdictional-element question in the context of the Racketeer Influenced and Corrupt Organizations Act (“RICO”) as applied to noneconomic gang activity.