Raich v. Ashcroft oral arguments
While we’ve all been screaming at each other about . . . something . . . two posts down, the Supreme Court heard oral arguments Monday in the case of Raich v. Ashcroft.
If you don’t know about Raich, it concerns the federal government’s power to regulate the purely intrastate cultivation and consumption of marijuana permitted by California’s medicinal marijuana laws. A decision against the feds would be a major gain in the direction of federalism, as well as a libertarian victory. {Hmm, going against the feds would be good for federalism? Maybe Scott Austin was onto something…}
The reigning in of the federal government’s commerce power,* after its gross expansion during the New Deal, has been one of the greatest acheivements of the Rehnquist, Scalia, and Thomas wing of the Court, beginning in the 1980’s. To me, it entirely compensates for my differences with them in other areas (e.g., fundamental rights and standing doctrine). Raich, properly decided, would be a great addition to this legacy.
From a very cursory reading, however, it was the liberal / moderate wing of the court focusing on the “commerce clause” charge, while Scalia showed a certain, dare I say, socially conservative reticence to go that far in rolling back federal power. For example, we have Scalia spouting things like this:
Scalia: But isnt it true that among the users of medical cannabis are whole communes with lots of people in them smoking marijuana?
It’s an old saw that judges will pick the result they want and then marshall precedent to support it. If this is true, Scalia’s talk of communes doesn’t bode well; not even his holiness is above old saws. On the other hand, he might just be acting cranky.
Meantime O’Conner is right on point:
OConnor: But this substance was not in national market or in any intrastate market, unlike the activity at issue in those cases.
Clement: It would be optimistic to believe that there will be no diversion to the national market.
OConnor: But shouldnt we assume that California will enforce its law against the sale or transportation of marijuana for nonmedical purposes?
Clement: Marijuana is a fungible product and there is a national market in this drug.
OConnor: Suppose there was a finding by the District Court that there was no diversion from the medical market to the illegal market?
There is also this distressing exchange (Tim, start your engines) involving Justice Stevens, as noted on Hit & Run:
Stevens: If you reduce demand, then you will reduce prices? Wouldnt it increase prices?
Barnett: No, if you reduce demand, you reduce price.
Stevens: Are you sure?
Barnett: Yes.
God bless Randy for standing his ground on that one.
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*Commerce power explained: the US Constitution empowers the federal government to regulate interstate commerce. The meanings of the words “regulate,” “interstate,” and “commerce” have been the subject of litigation for about a century now, since we got really industrialized and interstate trade really took off. Beginning in the New Deal, the collossal growth of the federal government was largely facilitated by a liberal reading of the clause. Nowadays the fact that it justifies the existence of, say, the FBI is taken for granted, but recent decisions by the Rehnquist Court have signaled a rollback in favor of state power.
