Commercial appeals: victories for federalism.

GIVEN ITS reputation as the most left-leaning federal appeals court, the 9th Circuit is not the first place you'd expect to find a resurgence in federalism. But recently it has distinguished itself as one of the few federal courts trying to put limits (albeit broad ones) on Congress' power to regulate interstate commerce.

In United States v. McCoy, decided in March 2003, the court found that mere possession of homemade child pornography was too remote from interstate commerce to justify federal prosecution. It relied on United States v. Lopez, the 1995 case in which the Supreme Court found that Congress had exceeded its authority under the Commerce Clause when it tried to ban gun possession in or near schools.

Eight months later, in united States v. Stewart, the 9th Circuit applied similar logic in overturning a conviction for possession of homemade machine guns. Rejecting the argument that the materials for the machine guns had "moved in interstate commerce," Judge Alex Kozinski wrote: "At some level, of course, everything we own is composed of something that once traveled in commerce. This cannot mean that everything is subject to federal regulation under the Commerce Clause, else that constitutional limitation would be entirely meaningless."

In Raich v. Ashcroft, decided a month later, the court ruled that the Controlled Substances Act "is likely unconstitutional" as applied to medical marijuana users in California. It overturned a lower court's refusal to issue a preliminary injunction protecting two patients from raids by the Drug Enforcement Administration. The patients' attorney, Boston University law professor Randy Barnett, noted that "federalism is not just for political conservatives."