Why the Market Argument is Bogus in Raich

While waiting for the Supreme Court decision in Raich, it’s still fun to do a little speculating. So I was interested to read Mike’s post at the Ashcroft v Raich category of the Crime and Federalism blog, discussing the government’s market argument.
While Mike disagrees with the reasoning of the market argument, he claims that it will prevail with the Justices (9-0 or 8-1). Here’s how he describes it:

  1. Congress has chosen to enter the broader market of regulating controlled substances.æ Once of these controlled substances is marijuana.
  2. Every time a person purchases medical marijuana, he does not turn to the illicit drug market.æ Because fewer people purchase drugs illegally, demand for illegal drugs decreases. This decreased demand causes the prices to go down.æ In a similar vein, Judge Posner observed: “[L]aw enforcement activity raises the cost and hence price of illegal drugs and as a result of the price increase reduces their consumption.”
  3. Since the price of illegal marijuana has decreased, people who could not have afforded marijuana, can afford the reduced price.æ Thus, there are more drug users.
  4. Congress has a legitimate interest in keeping drug prices high (as part of its scheme to keep drug usage low).
  5. Therefore, Congress may regulate non-commercial marijuana use to keep prices high, and thus demand, low.

Strangely, this is a fair representation of the government’s market position, which I find completely absurd. Here, for example, is an exchange during the oral argument:

JUSTICE KENNEDY: If we rule for the Respondents
in this case, do you think the street price of marijuana
would go up or down in California?

MR. CLEMENT: I would be speculating, Justice
Kennedy, but I think the price would go down. And I think
that what — and that, in a sense, is consistent with the
government’s position, which is to say, when the
government thinks that something is dangerous, it tries to
prohibit it. Part of the effort of prohibiting it is
going to lead to a black market, where the prohibition
actually would force the price up. And there is a sense
in which this regulation, although not primarily designed
as a price regulation — the Controlled Substance Act, I
think, does have the effect of increasing the price for
marijuana in a way that stamps down demand and limits the
— and in a way that reduces demand. And I think that’s
all consistent with Congress’ judgement here.

Yep, very similar. The thing is, for Mike’s prediction to hold, it seems to me that the Justices would have to have very thick skins considering how ridiculous they’ll look.
Consider this. For the market argument above to hold true, you must accept the following:

  1. The government’s strategy requires that medical marijuana patients purchase marijuana from criminals. If grandma in her wheelchair doesn’t go out to the corner and score some pot, then Congress’ legitimate interest will be undermined.
  2. If the government’s strategy requires more people to use marijuana to keep the prices high (so they can reduce consumption), then any success would automatically be a failure. If they keep consumption high, thereby raising prices, then consumption will be reduced, but that will lower the price, which will increase consumption. Oh, No!

Surely, the Supreme Court Justices must have a little bit more sense of self-worth than to actually write an historic commerce clause ruling in support of such a ridiculous circular argument? I would hope so.
Now this doesn’t mean that the government can’t legitimately use the argument in other situations that price increase is a desired means toward reducing consumption. For example, they could argue that crop eradication increases prices, thereby reducing consumption. But they can’t legitimately argue that they need people to use illegal marijuana in order to keep prices up, to reduce consumption.
At least, not without educated people laughing in their faces.

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