Introduction: The Case
In case you haven’t been following this case at all, here it is in outline:
- California is one of the eleven states (most recently with Montana) currently that allows some kind of medical marijuana by law, (in this case, through the mechanism of Proposition 215).
- Federal law, through the Controlled Substances Act, does not recognize medical marijuana
- The federal government was so opposed to medical marijuana that they regularly sent armed squads of federal agents into California to break up medical marijuana coops, and seize their assets and medicine, claiming that federal law trumped state law. (Read about one of those raids here.)
- The federal government felt it important enough to divert resources that could have been used to fight terrorism or go after violent traffickers, in order to arrest sick people
- Angel Raich of Oakland, CA (who was also raided), and Diane Monson Monson of Oroville, CA along with two anonymous caregivers sued the federal government on October 9, 2002 to prevent the feds from interfering with their right to use medical marijuana. Read Angel’s own statement about the case and her use of medical marijuana.
- Three factors add particular interest to this case.
- What the respondents are doing is completely legal under state and local law.
- It is asserted by Angel Raich and her doctors that she would die without marijuana, and that has not been disputed.
- Their marijuana was grown as part of a cooperative of patients and no money changed hands. Therefore it had no direct impact on interstate activity or commerce. (see Commerce Clause below)
- On December 16, 2003, the 9th Circuit Court of Appeals granted a prelimary injunction to stop the federal government based in part on this ruling:
We find that the appellants have demonstrated a strong likelihood of success on their claim that, as applied to them, the CSA is an unconstitutional exercise of Congress’ Commerce Clause authority.
- On April 20, 2004, the Federal government appealed the decision to the Supreme Court. Oral arguments were heard on November 29, 2004 and the case will be decided some time in the Spring of 2005.
The Commerce Clause
The Constitution of the United States specifically does not give police powers to the federal government. That kind of power was considered a state function. However, there is one clause in the constitution which gives the government the following “limited” power…
to regulate commerce with foreign nations, and among the several states, and with the Indian tribes;
This is generally known as the commerce clause. As intended, in the early years of this country’s history, the commerce clause allowed only minimal instrusion on the activities within states. For example, federal alcohol prohibition was not considered constitutionally possible without an amendment because of the commerce clause, and judges also regularly placed the tenth amendment in the path of congressional regulation of “local” affairs.
However, over the course of years, the commerce clause was consistently weakened, giving federal government more leeway in regulating and enforcing federal laws within the states.
It was a gradual expansion, from limited border functions, to accepting that interstate commerce can be regulated as it travels through the states, to expanding it to include transactions that affect interstate commerce, to almost meaning anything that Congress decides is interstate commerce.
There is no doubt that Raich is a commerce clause case. And a big one. The decision will have ramifications that extend beyond medical marijuana.
Many cases that go to the Supreme Court are complex in terms of the specific facts. The nice thing about Raich is that it’s really quite pure. Nothing was sold. Every part of the activity was in-state, so there’s no direct activity that is in any way “interstate” or “commerce.” Angel Raich is a sympathetic character, especially since her life may depend on the use of marijuana (it’s hard to imagine any kind of compelling interest for the federal government to want her to die), and her activity was both recommended by her doctors and allowed by state and local laws. This means that the court will not easily be able to rule based on some complication of the actual case. They will be pressed to decide whether Raich’s medical marijuana use is interstate commerce (in which case it’s hard to imagine anything that isn’t, and you can throw away states’ rights) or whether the federal government has to let the states handle medical marijuana as they see fit.
Other Recent Commerce Clause Cases:
Finally, in 1995, this trend of expansion was brought to an end in United States v. Lopez (clarified by United States v. Morrison). There Justice Rehnquist, delivering the opinion of the Court, ruled that Congress only had the power to regulate:
- the channels of commerce,
- the instrumentalities of commerce, and
- action that substantially affects interstate commerce
but not the power to regulate relatively unrelated things (e.g. the possession of firearms near schools, banned by the law at issue). It was the first time since the New Deal fight in 1936 that the Court had overturned a putative regulation on interstate commerce because it exceeded Congress’s commerce power.
In Raich, the federal government has essentially claimed that as long as the activity is related in some way to other activities that are part of interstate commerce, then Congress has the power to determine the bounds of any subclasses at its own whim. This is an extraordinarily broad definition and would essentially give Congress unlimited power to determine the degree to which it can interfere in state law.
As Randy Barnett wrote at Volokh Conspiracy:
A ruling for the government in Raich would, in my view, represent the effective repudiation of Lopez and Morrison, for the government’s reasoning would allow Congress it to reach whatever activity it chooses provided that its statutory scheme was sufficiently large enough. In other words, by the government’s theory, the more power that Congress claims, the more justified is its claim of power. Therefore, if the Court reaches the merits, whatever it decides in Raich v. Ashcroft will be a landmark decision with enormous importance for the future of federalism.
The respondents have it right in their brief when they note:
This Court has “emphasized” that “Congress’ regulatory authority” under the Commerce Clause “is not without effective bounds,” and “‘may not be extended . . . [to] effectually obliterate the distinction between what is national and what is local and create a completely centralized government,'” In this case, the Court is called upon to reaffirm once again that the Commerce Clause places effective limits on the power of the central government.
[Note: All references and footnotes within quotes have been eliminated for the sake of ease of reading. Please refer to the original documents referenced at right for the full text with references.]
The government’s reply brief has a fairly bizarre construction to attempt to relate the respondents’ activities to interstate drug trade. See if you can follow it:
Moreover, the record affirmatively shows that respondents’ homegrown drug activities cannot be divorced from the overall drug market regulated by Congress. Both respondents Raich and Monson were consumers of lawful drugs listed on Schedules II through V, before turning to marijuana, and respondents’ claims of medical necessity suggest that both would purchase marijuana illegally if necessary. Raich also admits to past marijuana purchases. Each of these facts confirms what Congress found: that
activities such as respondents’ displace market transactions and threaten to swell the illicit drug market.
I’m not sure how growing your own for medical purposes threatens to swell the illicit drug market (It would seem to diminish it, but that doesn’t help the government. They want to show that Raich is hurting their ability to fight the interstate proliferation of marijuana trafficking, and that’s tough to do.)
Wickard v. Filburn: Wheat Production
Wickard is considered by many to be the controlling case in this situation. Wickard was the case that went the farthest in commerce clause leeway for the federal government.
Wickard was a challenge to the Agricultural Adjustment Act of 1938 (“AAA”), a statute that authorized the Secretary of Agriculture to limit the number of acres of wheat planted by farmers in order to “control the volume [of wheat] moving in interstate and foreign commerce.” … Filburn’s practice was “to sell a portion of the [wheat] crop; to feed part to poultry and livestock on the farm, some of which is sold; to use some in making flour for home consumption; and to keep the rest for the following seeding.” Id. In 1941, Filburn exceeded his acreage allotment under the AAA. He refused to pay a penalty or turn the excess wheat production over to the government for storage, contending the AAA was an improper regulation of “production” rather than “commerce.”
Filburn lost, even though it involved wheat that hadn’t been “sold.”
In upholding application of the AAA to Filburn, the Court held that Commerce Clause analysis does not turn on “nomenclature” (e.g., whether to classify the activity in question as “production”), but instead requires “consideration of the actual effects of the activity in question upon interstate commerce.” The Court was able to consider these “actual effects,” because the parties “stipulated a summary of the economics of the wheat industry.”
(quotes from the Respondent’s Brief)
There are some differences between Wickard and Raich. The law in Wickard exempted small operations, the Wickard case involved commercial operations, and there was “proof” of the impact on interstate commerce.
Again from Respondent’s brief:
Setting aside for the moment the fact that Respondents’ activity is noneconomic in nature, and therefore should not be subject to a Wickard “aggregate effects” analysis, there exists no evidence in this case that the cultivation of cannabis solely for the personal medical use of seriously ill individuals, as recommended by their physicians and authorized by State law, has any aggregate effect on interstate commerce, much less a substantial effect.
There are many that think the Supreme Court went too far in Wickard and note that this case could actually even result in overturning Wickard. But even if they don’t, the Supreme Court will have to tread carefully, because as the Respondent’s brief notes:
If the Court upholds Petitioners’ claim of federal power, this case will supplant Wickard to become the most expansive interpretation of the Commerce Clause since the Founding, and this Court’s landmark decisions in Lopez and Morrison will become dead letters.
Supremacy Clause and the State Sub-class
The respondents have crafted a beautiful section starting on Page 19.
The feds have essentially claimed that California’s medical marijuana law is irrelevant because of the Supremacy clause, which gives precendence to valid federal law over state law. However, the respondents show that the state law can be used to define a sub-class of activity which is outside the reach of the federal government, and therefore the state law becomes the valid one in that clearly defined sub-class.
Looking to State law to define the relevant class of activities in this case is consistent with basic constitutional doctrines concerning the relationship between the Federal Government and the States. It gives appropriate weight to the principles of federalism that inform this Court’s Commerce Clause decisions. It is also consistent with the Supremacy Clause, which provides that State law must give way to a valid exercise of federal power. Here, however, the question is whether the exercise of federal power is valid. To answer it, a court must identify the relevant class of activity, which here derives from a State exercising its police power. Apart from defining the relevant class, the fact that a sovereign State permits and regulates a class of activity also bears on a substantial effects analysis. For example, as discussed, the existence and enforcement of statutorily-defined limits on the permitted class of activity may eliminate entirely any effect on interstate commerce or render any such effect trivial and insubstantial.
This is an excellent move on the part of the Respondents, because it gives the Supreme Court a way to narrowly tailor the decision, by saying that the only time the CSA does not apply is when there is a valid state law to cover that class of activity (thereby not opening up non-commercial marijuana use from federal jurisdiction all across the country at once).
Federalism and State Sovereignty
The scope of the Commerce Power “must be considered in light of our dual system of government” and interpreted so as not to “obliterate the distinction between what is national and what is local and create a completely centralized government.” “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 will reduce the risk of tyranny and abuse from either front.”
The respondents also note:
In addition to their power to enact local criminal laws, the States possess “broad” powers to regulate “the administration of drugs by the health professions.” Indeed, this Court has said that “direct control of medical practice in the states is beyond the power of the federal government.” California has exercised its police power by enacting the Compassionate Use Act, and other States have followed a similar path. (“It is one of the happy incidents of the federal system that a single courageous state may, if its citizens choose, serve as a laboratory; and try novel social experiments without risk to the rest of the country.”). As Justice Kennedy has explained, even where the Federal Government and the States share a common goal, such as gun-free schools, there is room for disagreement about how to achieve the goal. “In this circumstance, the theory and utility of our federalism are revealed, for the States may perform their role as laboratories for experimentation.” “If a State or municipality determines that harsh criminal penalties are necessary and wise, . . . the reserved powers of the States are sufficient to enact those measures.” In Lopez, this Court invalidated a federal law that “foreclose[d] the States from experimenting and exercising their own judgment in an area to which States lay claim by right of history and expertise, . . .by regulating an activity beyond the realm of commerce in the ordinary and usual sense of that term.” “Absent a stronger connection or identification with commercial concerns that are central to the Commerce Clause, that interference contradicts the federal balance the Framers designed and that this Court is obliged to enforce.”
It’s not just a case about medical marijuana
This call has been picked up by other, perhaps unusual friends of the Raich side. Joining with an amicus brief are the tough-on-drugs states of Alabama, Louisiana, and Mississippi.
The Court should make no mistake: The States of Alabama, Louisiana, and Mississippi do not appear here to champion (or even to defend) the public policies underlying California’s so-called “compassionate use” law. As a matter of drug-control policy, the amici States are basically with the Federal Government on this one.
Nope, they’re not normally friends of California, or the likely next target for a medical marijuana initiative.
From the amici States’ perspective, however, this is not a case about drug-control policy or fundamental rights. This is a case about “our federalism,” which “requires that Congress treat the States in a manner consistent with their status as residuary sovereigns and joint participants in the governance of the Nation.” The Government apparently does not view the federalism issue in this case as a serious one. (“It is clear that Congress has the authority ….”). We respectfully disagree. And, just as individual States have intervened to challenge laudatory (and popular) congressional statutes on federalism grounds before, the amici States perceive a need to do so here. While the amici States may not see eye to eye with some of their neighbors concerning the wisdom of decriminalizing marijuana possession and use in certain instances, they support their neighbors’ prerogative in
our federalist system to serve as “laboratories for experimentation.” As Justice Brandeis famously remarked, “[i]t is one of the happy incidents of the federal system that a single courageous State may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country.” Whether California and the other compassionate-use States are “courageous” – or instead profoundly misguided – is not the point. The point is that, as a sovereign member of the federal union, California is entitled to make for itself the tough policy choices that affect its citizens. By stepping in here, under the guise of regulating interstate commerce, to stymie California’s “experiment,” Congress crossed the constitutional line.
Note that there have also been Amici Briefs filed by a bunch of other groups. (See Resources at right)
There’s no doubt that this case hangs fairly completely on the commerce clause argument. However, the respondents are allowed to bring up other arguments that had been properly brought up in the lower courts. There are two.
- Medical Necessity:
The doctrine of necessity “traditionally covered the situation where physical forces beyond the actor’s control rendered illegal conduct the lesser of two evils” and the actor had no “reasonable, legal alternative to violating the law.” In Bailey, no Member of the Court doubted “the existence of such a defense,” even though the statute at issue did not mention necessity. … Raich’s physician has determined that she “cannot be without cannabis as medicine” because she would “quickly” suffer “precipitous medical deterioration” and “could very well” die
- Due Process, Basic Liberty and Fundamental Rights
The Fifth Amendment’s Due Process Clause precludes the Federal Government from applying the CSA to Respondents’ activities. This Court has held “[i]n a long line of cases” that the Due Process Clause protects basic rights and liberties not specifically enumerated in the Constitution. This case involves a right that is enumerated in the Due Process Clause – the right to life itself. (“It could very well be fatal for Angel to forego cannabis treatment.”). It also implicates the rights to avoid or mitigate severe pain and protect bodily integrity rights that at least five Members of this Court have indicated may well be constitutionally protected. (“A patient who is suffering from a terminal illness and who is experiencing great pain” may have a “constitutionally cognizable interest” in “obtaining medication, from qualified physicians, to alleviate that suffering”); (“Avoiding intolerable pain and . . . agony is certainly [a]t the heart of [the] liberty . . . to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.”); (“liberty interest in bodily integrity” includes “a right to determine what shall be done with his own body in relation to his medical needs”); (Due Process Clause may protect right to “personal control over the manner of death, professional medical assistance, and the avoidance of unnecessary and severe physical suffering – combined.”). Each of these rights has deep roots in “our Nation’s history, legal traditions, and practices.”
Interestingly (but not a surprise to me), Respondents also invoke Lawrence v. Texas here:
“‘History and tradition are the starting point but not in all cases the ending point of the substantive due process inquiry.'” Lawrence v. Texas. Current practices – particularly those authorized by an increasing number of States – are also significant. In Lawrence, moreover, this Court did not apply the “fundamental rights” analysis of Bowers v. Hardwick, or Glucksberg. Instead, it protected the “liberty” to engage in the conduct at issue, without ever deeming the liberty in question a “fundamental right.” The same type of analysis leads to protection of Respondents. Their decisions to follow physicians’ advice are “within the liberty of persons to choose without being punished as criminals.”
This case is likely to be one of the most important cases in recent years. It could have enormous impact on medical marijuana, states’ rights, centralized federal power, the ability of Congress to direct local police activites, and much more.
And it is a case, by its nature, that essentially requires the court to make a strong decision. It would take a significant reach to find a technical loophole decision which would allow the status quo to continue in both the federal government’s view of the applicability of the CSA and in the notion of federalism.
The Supreme Court doesn’t like to overturn established laws of Congress, but the alternative will be to overturn states’ rights principles. It may come down to what kind of coalition is formed within the Supreme Court within the new dynamics. States’ rights has traditionally been the domain of the conservatives, yet is looking more attractive to liberals today. Every one of the Justices will find something on the Raich side that is appealing (whether it’s medical necessity, individual liberty, federalism, strict constructionism, etc.)
I’m an optimist, and rarely do well with predictions, but I’ll give mine anyway.
Here’s my thinking. I’ve seen nothing in the Government’s materials that gives them a good answer to the question “If we overturn Raich, can you name any activity that is outside the reach of the Federal government?” In addition, there’s not going to be any interest in overturning Morrison and Lopez this quickly (which they’d almost have to do in order to overturn Raich).
I’m going to guess that the Supreme Court is going to end up deciding to make this one a landmark decision, reaffirming a specific carved out place for states’ rights. 8-0 decision in favor of Raich, applying narrowly to situations where states have specific legal and medical systems/procedures in place. I’m hoping there will be also a nod to the liberty principle partially established in Lawrence.
[Note: I’m getting a lot of ridicule for this prediction, so don’t get any hopes up. Also, it appears that Rehnquist will vote on this case, so there may be nine Justices after all (at the time I made the prediction, that was uncertain). Still, I said it, and I’ll ride with it, just because I’m ornery enough to hold on to my prediction/wishful thinking.]
[Further Note: The number of people who seem to be predicting a win for the Government is overwhelming. But most of them are doing so without a clear knowledge of the case.]
The Raich implications on Oregon v. Gonzalez, regarding assisted suicide.
The proposal by King County Bar Association to move distribution and regulation of currently illicit drugs to state control, using federalism arguments to defend against the inevitable federal backlash. This proposal loses much of its potential if there’s a pro federal government ruling in Raich. It’s a very interesting concept with the notion of insulating states from interstate commerce federal intrusion by making them “market participants.”
“I understand that my case brings up an interesting point of law that fascinates judges and lawyers,” says Raich, whose husband, Robert, is one of the lawyers on her case. “But for me, it’s a matter of life and death. With cannabis, I can play with my kids, walk without a wheelchair, sometimes even get a few hours sleep at night. Without it, I couldn’t go on for very long.” [link]
Some Useful Trivia and Resources:
The CSA is the Controlled Substances Act — an act of Congress (passed in 1970) which classifies certain drugs in various categories, based solely on Congress’ definition of those drugs and their medical value or lack thereof. Marijuana is classified in Schedule 1, which means that Congress has determined by statement that marijuana has no accepted medical value.
In this case, the federal government is called “the petitioners” and Raich, et al, are “the respondents.” This is because the federal government petitioned the Supreme Court to overturn the 9th Circuit decision, which ruled in favor of Raich.
Arguing for the respondents was Randy Barnett, who often blogs at Volokh Conspiracy. He co-authored an Amicus Brief in the case of Lawrence v. Texas. His latest book is Restoring the Lost Constitution : The Presumption of Liberty. (Note: I’m a big fan of Barnett and have enjoyed his writing immensely.) The rest of the respondent’s legal team is here.
Arguing for the petitioners on November 29 was Acting Solicitor General Paul D. Clement. He previously argued 15 cases in front of the Supreme Court
The 9th Circuit Court of Appeals is sometimes considered a “radical” or “activist” court, and is therefore perceived by some as being more likely to be overturned by the Supreme Court.
Chief Justice Rehnquist (who helped write the CSA as a young lawyer) was not present for oral arguments (undergoing cancer treatments). He could still vote or write an opinion, though, despite missing oral arguments. If it’s a 4-4 tie, the opinion of the 9th Circuit stands, but doesn’t become binding authority on the rest of the country. [Fred Gardner]
The case is called Raich v. Ashcroft (or Raich versus Ashcroft or Raich vs. Ashcroft or Raich, et al v. Ashcroft, et al). Angel Raich is one of the people suing the government, and John Ashcroft is named because of his position and in his capacity as Attorney General (it doesn’t specifically or necessarily have anything to do with him). Even though Ashcroft is leaving the position, it still is called Raich v. Ashcroft. The case number is 03-1454.
“It is one of the happy incidents of the federal system that a single courageous state may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country.” – Justice Brandeis
Full links to all documents going back to the complaint on October 9, 2002 are available at the Angel Justice site as well as a ton of other useful information.
Newspaper articles that reference Angel and the case, archived at MAP.
Scotus Blog – good coverage of the Supreme Court
Ashcroft v. Raich – a federalism blog.
Page of links on Raich v. Ashcroft at Americans for Safe Access
Briefs from the Case
A selection of briefs filed for the Supreme Court case (these are all pdf files from the Angel Justice site)
Merits Brief for the Respondents. This is simply brilliant. I marvel at the beauty of its construction.
Petitioners Reply brief on the Merits. The government’s response. I think it’s well-written, but ultimately flawed due to the severe stretching needed to force Raich’s activities to reach substantial effect on interstate commerce. And there are many points in the Respondent’s brief to which they just didn’t respond fully.
Amicus Briefs for the Petitioner
Amicus Curiae Brief in Support of the Petitioners from The Drug Free America Foundation, Inc.; the Drug Free Shcools Coalition; Save Our Society From Drugs; the International Scientific and Medical Forum on Drug Abuse; the Institue on Global Drug Policy; and Students Taking Action Not Drugs, et al.. — if you want a laugh. This one is outrageous, has very little actual legal support, and includes outright lies. Brief claims there is no medical value to marijuana and also claims that the FDA placed marijuana on Schedule 1 of the CSA (instead of Congress).
Amicus Curiae Brief in Support of the Petitioners from Mark E. Souder; U.S. Representative, Cass Ballenger; U.S. Representative, Dan Burton; U.S. Representative, Katherine Harris; U.S. Representative, Ernest J. Istook, Jr.; U.S. Representative, Jack Kingston; U.S. Representative, and U.S. Representative, Doug Ose— just look at the names and you know it’s a loser. My favorite line: “The history of marijuana in this country illustrates the efficacy of federal drug regulations — and the necessity of their full enforcement.”
Amicus Curiae Brief in Support of the Petitioners Robert L. Dupont, M.D.; Peter B. Bensinger and Herbert Kleber, M.D. — Dupont was one of the first drug “czars.” This argument is absurd: [The U.S. is party to international treaties that specify marijuana can only be used for medical purposes. Since medical marijuana is not in a prepared pharmaceutical format, it does not count, and the court should defer consitutional matters to the international treaty.] Bizarre! And an extraordinary stretch of the truth. The Single Narcotics Treaty does not prohibit state medical marijuana programs.
Neutral Amicus Briefs
Amicus Curiae Brief in Support of Neither Party from the Pacific Legal Foundation — despite saying that it supports neither party, this brief is a call for a clear commerce clause definition requiring actual commerce and substantial economic impact, so it essentially supports Raich.
Amicus Briefs for the Respondents
Amicus Curiae Brief in Support of Respondents from the Institute for Justice — this brief advocates overruling Wickard.
Amicus Curiae Brief in Support of Respondents from Constitutional Law Scholars
— discusses international relevancies to this case and says that “Medical uses of drugs are sufficiently distinct from non-medical ones to require separate analysis under the Commerce Clause”
Amicus Curiae Brief in Support of Respondents from the State of California; Washington; and Maryland — “To construe the CSA as precluding even state regulated
possession of marijuana for medicinal purposes would render the statute unconstitutional
as applied under the Tenth Amendment,
especially in view of the lack of congressional
findings regarding such usage.”
Amicus Curiae Brief in Support of Respondents from the State of Alabama; Louisiana; and Mississippi — conservative anti-pot states supporting the case! It’s all about states’ rights.
Amicus Curiae Brief in Support of Respondents from Lymphoma Foundation of America; HIV Medicine Association of the Infectious Diseases Society of America; American Medical Students Association; Dr. Barbara Roberts; and Irvin Rosenfeld — discusses the medicinal value and effectiveness of marijuana.
Amicus Curiae Brief in Support of Respondents from the Leukemia and Lymphoma Society; Pain Relief Network; California Medical Association; AIDS Action Council; Compassion in Dying Federation; End-of-Life Choices; National Women’s Health Network; Global Lawyers and Physicians; and AUTONOMY, Inc. — “Criminal Restrictions on Individuals’ Ability to
Obtain Medical Treatment for Severe Pain Affect
Liberty Interests Protected by the Due Process Clause” and “The CSA Should Not Be Construed to
Authorize Punishment of Individuals Who
Can Show Medical Necessity”
Amicus Curiae Brief in Support of Respondents from the California Nurses Association and DKT Liberty Project — draws upon the history of the commerce clause to demonstrate that the CSA plowed new ground, which has never been fully accounted for constitutionally within the commerce clause.
Amicus Curiae Brief in Support of Respondents from the Marijuana Policy Project and Rick Doblin, Ph.D — This one’s really fascinating. It demonstrates how the federal government has blocked research on medical marijuana at every turn, rendering spurious the government’s claim that marijuana is properly classified as a drug with no accepted medical use. It then leads to the conclusion that asserting patients’ constitutional right to use cannabis is the only alternative. It’s a powerful indictment.
Amicus Curiae Brief in Support of Respondents from the Cato Institute — “the court should take this opportunity to anchor modern commerce clause analysis to the original understanding of the commerce clause. Interesting analysis of Gibbons v. Ogden in the early days of the country.
Amicus Curiae Brief in Support of Respondents from the National Organization for the Reform of Marijuana Laws (NORML); The NORML Foundation; the National Association of Criminal Defense Lawyers; Washington Association of Criminal Defense Lawyers; and Oregon Criminal Defense Lawyers Association — “Federalism and the Commerce Clause require that this Court recognize that medical use of cannabis is a matter reserved to the people and the States under the Ninth and Tenth Amendments”
Amicus Curiae Brief in Support of Respondents from the Reason Foundation — “Petitioner Has Provided No Evidence that California Law Does Not Effectively Prevent
Medical Cannabis Cultivation from Having a Substantial Affect on the Commercial Market
for Recreational Marijuana”
Oral Argument Transcript (pdf)
Go to Lawrence Solum’s Legal Theory Blog for a complete recap and analysis of the oral arguments.
Check out Timothy Lynch’s report at the Crime and Federalism blog (Mr. Lynch is with the Cato Institute and co-authored an amicus brief in Raich.)
Marty Lederman at SCOTUS blog has decided to predict a unanimous vote in favor of the federal government. (I’m still holding out for a much better result)
Jonathan Adlers’s outstanding column at the National Review: High Court High Anxiety: The Supreme Court’s medical-marijuana case could send federalism up in smoke.
In a much lighter tone, read Dude, Where’s My Integrity? Medical marijuana tests the Supreme Court’s true love of federalism. By Dahlia Lithwick at Slate
Medical marijuana about liberals getting women to act like goats: for an analysis that is so ignorant it’s hilarious, read Gary Aldrich’s Townhall column: Medical Pot-heads
Speculations on Delay in Release of Opinion
Jim Lindgren at Volokh Conspiracy discusses studies that purport to be able to predice decisions based on questions at oral. He also notes that the Court is in a real bind in Raich (it can’t stand still). (My post)
Ann Althouse comments on Lindgren’s speculations and concludes that the Court is just trying to figure out how to word a capitulation to the Government. The interesting discussion is in the comments.
USA Today quotes Doug Kmiec, speculating that “the expansive assertion of government power asserted by the Bush administration was deeply troubling to the justices…” (My post)
Tom Goldstein at SCOTUSblog speculates on authorship of remaining cases from the December arguments, including Raich. (My post)
Some speculation for fun at Drug WarRant.
Also see The Last Cold Warrior.
LAW prof to Supreme Court: federal government, butt out of medical marijuana – Outstanding article in the Boston University Bridge on Randy Barnett and the case.
Oakland woman battles for medical pot – Thorough article in the Mercury News by Howard Mintz.
Ashcroft v. Raich: Medical Marijuana and the Supremes by Fred Gardner in Counterpunch. Outstanding article, includes this insightful paragraph:
Among the feds’ arguments is one usually left unspoken: prohibition serves the interests of the pharmaceutical corporations. As expressed in the Solicitor General’s brief, “Excepting drug activity for personal use or free distribution from the sweep of the CSA would discourage the consumption of lawful controlled substances.” It would also undercut “the incentives for research and development into new legitimate drugs.” That’s as close as the government has come to acknowledging that wider cannabis use would jeopardize drug-company profits.
California Women Make a New Case for Medical Marijuana – Pretty good overview by Eric Bailey in the Los Angeles Times.
Patient Keeps Medical Marijuana Fight Alive – by John A. MacDonald, Hartford Courant
Showdown over medical marijuana – by Warren Richey, Staff writer of The Christian Science Monitor
US Supreme Court to Hear Medicinal Marijuana Case – from PolitInfo for a foreign view of the case.
Cases affected by Raich at the Ashcroft v. Raich blog.
Victory in 9th Circuit Medical Cannabis Case – Randy Barnett’s first post after learning of the victory, gives some insight into his views on the Supreme Court approach.
Gay Sex Ruling May Help Drug Policy Reform – my article, based on a Randy Barnett paper, on how Lawrence v. Texas could help medical marijuana cases like this one.
Why is Congress Still Regulating Noncommercial Activity? by Alex Kreit in the Harvard Journal of Law and Public Policy. Interesting article proposes a new framework for analyzing broader scheme questions in commerce clause cases, by permitting Congress to regulate noncommercial activity only when performed as part of an economic enterprise.