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May 2005
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Raich delay may cause nervousness in some parts…

In USA Today.

One of the most closely watched decisions involves whether states can shield medical marijuana users from federal prosecution on drug charges. The case, which was heard last November, pits the conservative anti-drug interests of the Bush administration against conservative principles of states’ rights. […]

While many believe the court will back the federal government in the marijuana case, its delay in issuing an opinion so far offers states’ rights advocates hope that justices are wary of further extending federal authority, said Pepperdine law professor Doug Kmiec, a former Justice Department official under President Reagan and the first President Bush.

“It may suggest that the expansive assertion of government power asserted by the Bush administration was deeply troubling to the justices, or at least that the issue is so close that the wording of opinions is being examined and negotiated with far more than the usual care,” he said.

I never understood the assumption held by many that the Supremes would overwhelmingly side with the government in Raich. If they were only looking at it as a marijuana issue, or only noting what happened in the oral arguments, there’s reason to look at it that way. However, if you read all the briefs, it’s almost impossible to see it as a slam-dunk for the government — in fact, it’s pretty obvious that the Supremes would have to be very creative to rule for the government at all.
Now that the decision is taking so long, people are starting to pay a little more attention to the complexities.

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