Of course, remember that today is simply the oral arguments for Raich v. Ashcroft. We won’t have the results probably until July.
Again, I’d love to hear from anybody who attends the arguments, and I’ll report more tonight.
Here are the two questions I hope will be asked of Acting Solicitor General Paul Clement by the Justices:
- If Congress has the power to regulate this activity, doesn’t that mean it has the power to define any activity it wishes as being under federal jursidiction? Can you list any activities that it would not be able to control?
- How can you say that wholly intrastate non-commercial use of medical marijuana substantially affects interstate commerce in drugs, while the possession of a gun in a school zone does not substantially affect interstate commerce in guns? Or do you suggest we overturn Lopez?
This is, in part, where this case hangs. The respondents have given the government several ways to affirm the 9th Circuit decision without even overturning Wickard. However, the government’s case is pretty weak in that there’s no real way to justify supporting the government’s position without making a radical change in Supreme Court case law regarding the commerce clause.