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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.

More here, here, here.

*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.

  1. Marc says:

    ok, I haven’t read all of these posts but, I think through stumbling on this site I may have some things to contribute. I am a patient living in California. I take medical marijuana due to severe pain as a result of SLE. If you are unsure what SLE is, it is a type of lupus that is fairly complicated to explain. Some simple things have been stated in this forum that are generally untrue. In California, marijuana hasn’t been and isn’t being PRESCRIBED. In fact, it is illegal for a physician to prescribe marijuana to any patient. However, what is legal is what they call a RECOMMENDATION. Now this are two distinct things, one involves the FDA and the other doesn’t. Secondly, regarding the medicinal effectiveness of marijuana. I take marijuana as the result of being on close to a dozen different arthritis medications, including the recent Celebrex, Vioxx and Naproxen. Now, in case you don’t know these drugs are all under scrutiny for how they affect one’s cardiovascular system. Celebrex in particular is suspect to put the patient at risk if you consume more than 400mg a day. I consume more than 1200 mg a day in combination with a good portion of steriods like Prednisone and some anti-inflammatory drugs like Plaquenil. The oddest things about these medications is that over the past 40 years our government has done more research about the compounds found in cannabis then all of these drugs I’ve mentioned combined. I trust the future of my health to this medication because I know that people have used it for a period of time that is infinitely longer than those medications that have been on the market. But I’ll stop now, after I mention one thing. The smoking issue has been brought up a bit in the forum as well. I don’t smoke marijuana, I vaporize it and for the bulk of the patients I know, they too also vaporize. Anyway, I think that’s good for now.

  2. Melissa says:

    At least if your weed were medical, and you had a license, you could get it back if it were to be stolen.

  3. Timothy says:

    I’m sorry that my constitutional interests are so passe.

  4. Danimal says:

    More precisely, not being sold. I’m guessing. I’d look it up but I’m supposed to be boning up on equal protection and free speech this weekend. The commerce clause is so last spring.

  5. Timothy says:

    Mel: Sorry, that was probably overly patronizing, I apologize.

    Dan: I don’t happen to remember the name of that machinegun case, but I think Jones blogged it so you could try searching our archive. And, yeah, I believe the reason you could have the machinegun was that it was not being sold across state lines.

  6. Danimal says:


    The commerce clause would probably have reached nonprofit sales of marijuana under 33’s proposed regime, even if they were wholly intrastate. Under Heart of Atlanta Motel, Congress does have the power to regulate commercial activities of “a purely local character” which have a substantial and harmful effect on interstate commerce.

    This posture was reiterated in Lopez: “Where economic activity substantially affects interstate commerce, legislation regulating that activity will be sustained.” The Court said this even as they ruled that Congress had no power to regulate the possession of firearms within school zones, as that was noneconomic. By the line they’ve drawn so far, Measure 33 would probably have run afoul even of a favorable ruling in Raich.

    Do you know offhand the name of that 9th Circuit case? Sounds like it followed from Lopez; I imagine if you took to selling your homebuilt creations you’d run into trouble.

    God, I love the commerce clause.

  7. Melissa says:

    Yes, Tim, I know what non-profit means. But it is an important distinction to make when talking about the supply of pot, non-profit groups versus corporations pocketing profits off of a potential billion-dollar industry.

  8. Timothy says:

    Well, non-profit entities can participate in commerce. Non-profit is really better read as “not-for-profit” meaning that rather than try to maximize shareholder value, the non-profit entity gives its surplus to the general welfare.

    Many 501(c)3 entities subsist on donations and the sale of their research, but still maintain tax-exmpt status.

    Even if pot was a purely commercial action in Oregon, does the Commerce Clause give Congress the authority to regulate a purely intrastate market provided the market were restricted in such a way as to make sale across state lines highly improbable? That’s really the question of the day isn’t it…but hey the 9th Circut ruled last year that Congress doesn’t have the authority to stop you from building your own machinegun, so I guess there’s hope.

  9. Melissa says:

    Here’s a link to the text of Measure 33

    All the licensing has to go through the state of Oregon, so I assume that given the restrictions on your medical condition, whoever you get it from has to hold matching license to dispense to you.

    (7) Patients for whom the medical use of marijuana is beneficial have a personal privacy right to a safe affordable supply of this medicine. No such supply can be guaranteed to these patients unless the persons providing the marijuana can be adequately compensated. No adequate supply of medical marijuana can be assured for all patients who could benefit from medical marijuana unless medical marijuana can be safely and lawfully dispensed in a regulated intrastate market.”

    There you are.
    But then again…
    “(7)…”Medical marijuana dispensary” includes any employees or agents of such a nonprofit entity.”

    It also explains that this is not an attempt to totally legalize marijuana. People seem to forget that a lot when Measure 33 gets publicity.

  10. ajb says:

    Does anyone know if the Measure 33 dispensaries would have sold only Oregon grown pot?

  11. ajb says:

    Danimal –
    All true, but it’s an interesting thought experiment all the same.

  12. Timothy says:

    Mel: go talk to Ron Davies about pot-econ issues, IIRC he wrote a paper on just that a couple of years back. His estimates place the price of pot per pound if legalized someplace around $3-$10.

    Seizure lowers supply, price up, all that jazz. Plus there are other production-side costs from trying to evade legal consequences. And with bad/no data on domestic production it’s silly in prinicple to regulate through the commerce clause, as y’all have noted above.

  13. Melissa says:

    “Whereas using the commerce clause to regulate noncommercial activity is as ass-backwards as it can get.”

    I was going to say the same thing, Danimal. People who grow medicinal weed can’t sell. That’s why co-ops are a good idea, because the chronically ill who can’t cultivate their own can at least contribute to a group who can do it for them. Comparing illegal marijuana use and medical use in terms of commerce is like comparing apples to oranges.

    If the whole case is going to revolve around commerce, ie production and sale of a commodity, there is no precident data to make a judgment on national commerce, let alone in-state commerce, for an illegal substance. According to the National Drug Intelligence Center , there is a discrepency between supply stats and demand stats. 2002 user stats for marijuana is broken down into voluntary admission and drug charges by age group. 66.87 percent of all admissions also used other substances, and 56.4 percent of all cases were referred from the criminal justice system. Naturally, if the stats focus on those caught, the numbers are going to be higher. It isn’t a good representation of the whole population.

    Marijuana used in the US in 2001 was as follows:
    “An estimate of the marijuana available in the United States is not definitive, in large part because of limitations in eradication and seizure data, the unknown extent of indoor cultivation, and unsubstantiated or outdated crop estimates. In attempting to determine how much marijuana was available in the United States in 2001, the interagency Marijuana Availability Working Group established a range of 10,000 to 24,000 metric tons.”

    Simple math, per the DEA price range quote of $300 to $1,200 per pound for commercial-grade marijuana, the illegal marijuana market income takes in up to 63 billion dollars (cue Dr. Evil face) annually. That does not take into account:
    (1) domestic versus foreign marijuana
    (2) seizure versus actually existing operations. There’s a big difference between actual operations and the amounts seized.

    The NDIC themselves admit that they have no quatifyable amount for domestic production, and that a great portion of marijuana seizures involve foreign sources.

    I think the stats are biased, and a question of commerce has no data history to work on. There should be an independant study done into this, by a research group that is not government or justice affiliated. But, that may involve enough monitoring to kill a market that thrives in the underground.

  14. Danimal says:

    That’s true, but the “primarily interstate traffic” argument is just a spurious as the “Growing your own marijuana affects commerce because you aren’t purchasing it” argument the Govt. is using in Raich.

    Yeah, but I think the fact that the Civil Rights cases involved the regulation of actual commercial enterprises is a more important distinction than the much more elusive inter/intrastate line.

    Also, the cases in the ’60’s came in the middle of a period of broad interpretation of the Commerce Clause, where now we are in(hopefully) a period of less expansive interpretation.

    True, the Civil Rights cases were right at the peak of the commerce clause’s power.

    But just because the Court has lately been turning the tide on the commerce clause does not mean they are going to make rulings that significantly undermine long-established legislation in support of civil rights.

    They had to be aware of this when ruling in Morrison and Lopez, and hence found ways to distinguish those cases as dealing with noncommercial activity, leaving the Civil Rights cases intact. I see no reason why they wouldn’t do the same in Raich.

    The right result in Raich would, I hope, undo Wickard (personal consumption of wheat was regulable because it affected national New Deal price controls), but that’s as far as it would probably go. I think the Civil Rights cases were sturdier constitutionally than the New Deal cases, and not merely because I agree with the policy implications: it’s because the law in question directly targeted commerce. Whereas using the commerce clause to regulate noncommercial activity is as ass-backwards as it can get.

  15. ajb says:

    Danimal –
    That’s true, but the “primarily interstate traffic” argument is just a spurious as the “Growing your own marijuana affects commerce because you aren’t purchasing it” argument the Govt. is using in Raich.
    I mean, c’mon, “3 out of 4 items in your snack bar are from out of state, therefore you must be federally regulated”?

    Also, the cases in the ’60’s came in the middle of a period of broad interpretation of the Commerce Clause, where now we are in(hopefully) a period of less expansive interpretation.

    I’m sure a smart lawyer could make a better case than I, though.

  16. Danimal says:

    “Out of curiousity, has anyone seen any commentary on how a decision for Raich could affect the Civil Rights Act?”

    I haven’t seen any commentary, but I can give you my best guess: it wouldn’t have any effect, because the Civil Rights cases concerned commercial activity with a substantial and harmful effect on interstate commerce. (The discriminatory operation of roadside motels and diners.)

    The marijuana cultivation and use in Raich is noncommercial. So it belongs to a different class of cases than the Civil Rights cases, in which the question is whether a noncommercial activity nonetheless has a substantial enough effect on interstate commerce that regulation of it is essential to regulation of interstate commerce.

    The cases may also be distinguishable on the intra/interstate question. If the marijuana use is deemed wholly intrastate, it would differ from a motel or restaurant that serves interstate travelers.

  17. Anonymous says:

    It’s interesting, the more I read about this case, the more I change my mind and think it just might be the perfect test case.
    I mean, the pot was grown on a coop and shared equally(so no Commerce) and the coop was entirely contained in California (so no Interstate).
    Then you have the Govt’s byzantine argument(If the Respondents grow their own pot, it means they might buy pot illegally? What?) combined with a huge power grab.

    Plus, if you think about it, if states rights apply to even the “evil scourge” or marijuana, what other, less controversial things, must they apply too as well? I can see a decent number of Federal regulations being overturned here.

    Out of curiousity, has anyone seen any commentary on how a decision for Raich could affect the Civil Rights Act?


  18. ajb says:

    Olly –
    Well, for a terminal patient, the negative side effects of pot smoking (addiction, cancer, lethargy, etc) are probably of no consequence, so yeah, I suppose in that instance there is no harm.

  19. Danimal says:

    The implications are even more important than I thought. Randy Barnett, attorney for the Raich side of the case, is convinced that a negative decision in this case would be the end of Rehnquist’s “Federalism Revolution.” And I’ll take his word for it. See here.

    (High stakes to pin on such controversial subject matter. I really hope Scalia et al take this seriously.)

  20. Olly says:

    AJB – I am going on somewhat anecdotal evidence, it’s true. But it’s an awful lot of anecdotal evidence, from an expert source whom I trust, and it certainly doesn’t run contrary to my intuition.

    Your point about the FDA is fair. Basically, if people find pot-smoking provides effective pain relief and doesn’t have a bevy of other negative effects (we’re not talking about some of the wackier AIDS cocktails, after all) I don’t see the harm. I understand the concern about doctors prescribing it, but I’m not sure I see another way out that doesn’t either criminalize the patients or make a mockery of existing marijuana law.

    And, as Dan says, the non-drug implications of the case are even more important.

  21. Casey says:

    A doctor perscribing St. John’s Wort wouldn’t lose his license. Do you know how hard it is for a DR. to lose his license? Depending on what state you live it, it’s all but impossible. Besides, doctors perscribe crap that isn’t an FDA approved drug all the time. “Chew Valarain root”, “use iodized salt goiter boy,”… I don’t think many, if any doctors are telling people to use pot. I think the more likely chain of events goes as such: Personal has health problem, docotor perscribes drug, drug gives patient limited releif, or partial relief but bad side effects, patient tries pot, pot works, patient asks doctor to perscribe pot.

  22. ajb says:

    Olly –
    Were that accepted, proven medical fact, I’d be all for it.
    Unfortunately, it’s not. The medical value of cannibanoids is somewhat unclear(though promising), the value of smoked marijuana even more so.

    I should make clear though, that if someone wants to grow pot in their backyard and smoke it for “medical” reasons, and the state legalized it, I don’t think it any business of the Federal govt.

    However, the minute it is prescribed by a doctor as a drug, I think it ought to have FDA approval(and science) behind it.


  23. ajb says:

    Casey –
    Most medical studies have shown that cannabinoids show useful medical properties.
    However, smoked marijuana is just about the worst possible way to deliver cannabinoids to the body.
    Further, given the variability in plants with respect to strength and toxicity, then medical marijuana is at best anecdotal.

    Which is not to say that it should not be studied, researched, and approved if it is proven to be effective.
    The key word there is “proven”. That means repeatable, scientifically recognized studies.

    Think of it this way: If a doctor started prescribing St. Johns Wort to cancer patients because he observed a few instances where the cancer went into remission, he’d probably lose his license. Why should marijuana be any different?
    Until it’s efficacy has been proven, it should not be prescribed as a drug. Period.


  24. Melissa says:

    I did mean in the nation decimating effects, in both the addictive behaviors of humans and the economy of opium producers. It is the substance credited for the fall of the Hmong cultural homeland…

  25. Casey says:

    I can’t talk about opium outside of the realm of smoking it with pot. Sorry.

  26. Danimal says:

    Too sleepy.

  27. Melissa says:

    My point exactly. Cocaine does, however, have a history of being used both as an stimulant (excellent if you were a Victorian housewife suffering from ennui) and as an surface anesthetic for surgical procedures.

    Still, it doesn’t mean the nose candy is good for you.

    Now, let’s talk about opium, shall we?

  28. Timothy says:

    Oh, and our good buddy Cocaine! Coke: because getting stoned isn’t safe.

  29. Timothy says:

    So it is…silly me. Oh, it’s METH that’s Schedule II. METH! Geeze, you know, I’m sure glad my triscuts are being kept safe from all those dope-smoking hippes while speed freaks roam free. Nice and logical, thanks Mr. Hurst.

  30. Melissa says:

    Nope. It’s first on the list under Schedule I

  31. Timothy says:

    I thought PCP was schedule II?

  32. Melissa says:

    The medicinal value of marijuana has been recognized, in various forms of ethnomedicine, for a long time. Longer than this has been an issue in Western medicine.

    But, the problem here isn’t medicine: whether or not someone personally feels that marijuana has medicinal benefits is largely based on perspective. It is the conflict of medicine and the law regulating addictive or potentially harmful substances. As a medical assistant in California dealing with medical weed for advanced glaucoma patients, I have seen the process it takes to get a patient medical marijuana as a last resort.

    Weed isn’t handed out randomly to anyone; a patient must be registered with the state, have the medical recommendation from the doctor, and then they are alloted a certain amount as directed by the physician. Marijuana is a Schedule I drug at this time, meaning it is on the same list as crack and PCP. That is wrong. The overwhelmingly broad social abuse of Schedule III drugs causes far worse health problems and are sometimes as addictive, if not more addicitve than Schedule I and II substances.

    Smoking the stuff works fast. But THC in regular doses in controlled pill form? Why not?

  33. Olly says:

    As far as I know, marijuana is useful in treatment of neuralgia and is – obvious jokes notwithstanding – good for the appetite, which is a major plus when you’re talking about stomach cancer.

    AJB, a lot of your objections seem to be against people smoking poor-quality pot, rather than pot per se. It’s not snake oil; it’s a palliative treatment of limited, but still non-trivial, value. I don’t see the harm in letting people prescribe it, although I’m sure a lot of licenses are being sought on spurious grounds.

  34. Casey says:

    Sorry guys, you’re pretty much wrong. Much of the evidence supporting medical marijuana is far from anecdotal. Besides, the field of medicine is full of drugs and procedures that work for some and not for others, such as chemo and various AIDS treatments. And as far as the snake-oil arguement, I don’t see many guys traveling from town to town selling dope to cancer patients, or anyone heralding pot as a cure all. The Institute of Medicine would seem to carry more weight than the opinion of Congress, but hey, those senators always know what their talking about.

  35. Timothy says:

    I’m with ajb as far as medical pot goes. That said, in prinicple I don’t think there’s anything wrong with letting people get high. You think it helps your glaucoma? Fine. You like being stoned out of your gourd? Cool too. But until the “evidence” on the side of medical marijuana is more than anecdotal, it shouldn’t be passed off as a medical action. That’s bad science, and a bad half-measure, in my opinion.

    However, California should have the right to regulate marijuana (and in my opinion all other recreational drugs) the way it sees fit, so if CA wants to hand out joints to fogeys in the name of medicine, well, fine.

  36. ajb says:

    Danimal – Yes, I realize the positive implications, I just wish it wasn’t medical marijuana laws that were forcing the issue.
    And while I generally support Federalism, I believe that certain things are much more easily standardized on a national level.

    Casey – Mainly because there have been few well-designed studies that supported the medicinal use of marijuana, and those that did supported cannabinoids specifically, but noted that smoked marijuana was remarkably less effective.
    Add to that repeatability, that is, is the pot that your “dispensary” grows the same strain that was used in the study, does is contain the same strength of THC etc.
    If someone wants to submit to FDA approval, do the required studies, and then package pot, I wouldn’t have an objection but, just as I don’t think someone grinding up willow bark should be able to sell it as aspirin, I don’t think someone growing pot in their backyard should be able to sell it for medical use.

    Medical marijuana advocates remind me of the patent medicine snake-oil dealers that used to run around the country.


  37. Casey says:

    I’m not sure why Tim and AJB are so sure that medical marijuana is b.s. If that is coming from personal experience, then fine, but a blanket statement saying its bullshit is in itself, bullshit. The point of using pot medicinally is that it can be smoked, unlike any other pain killer/nausea alleviant. My grandfather started smoking in his last days after cancer tore through his body like a hollowtip. A 6’4 man weighing 105 pounds isn’t really able to take merinol (however you spell it) when you can’t keep anything down. Hooking up my grandfather and letting the guy get in a good meal before he withered away is evidence enough to me to let states decide what medicine they will use in their state. Besides, I know a pregnant lady who gets prescribed Oxycotin, so fuck it. I understand the notion of not wanting to muddle legalization and medicinal use. This post is too long.

    p.s. I’m with Scalia, hippies suck.

  38. Danimal says:

    JS: I agree with you about both major parties’ likely tendencies regarding federalism. But as a nonaffiliated believer in the principle, I’ll take any movement in that direction by any branch of government I can get.

    And I’m not sure your prediction will hold as true for the Court as it might for the political branches. The Rehnquist wing has been thwarting the wills of Democratic and Republican Congresses and Presidents alike for two decades now. While Scalia’s obvious dislike for hippies may color his decision in this case, I doubt he or Thomas are going to drop the intellectual principle as a whole.

    On the other hand, the new weakening of the Democratic Party at all but the state level may indeed bring some converts to states’ rights from the left side of the Court. Ginsberg seemed supportive yesterday.

  39. JS says:

    Slightly OT:

    I think Republicans will be less and less concerned with protecting states’ rights as they consolidate more and more power on the federal level.

    Democrats, consequently, will become more and more concerned with states’ rights as they lose power in the three branches of federal government.

    More on topic:

    Is a prescription for pot and more/less “medical” than a prescription for ibuprofen, an anti-emetic (nausea and vomiting) drug, or an appetite stimulant?

    Here’s a study from the National Academy of Sciences on the Medical Value of Marijuana and Related Substances:
    (Sorry. Not tech-saavy enough to make it appear as a link.)

    I think there are far more dangerous and less-effective drugs out there than marijuana but the puritanical elements in our society don’t care as much about them.

  40. Danimal says:

    AJB: Sure, medical marijuana is a farce, but a good result in this case could have all kinds of positive reverberations along the state/federal relationship.

    To illustrate how broad an impact a commerce power case can have, some of the precedents on point in Raich involve the federal power to regulate (a) personal consumption of home-grown wheat (Wickard v. Filburn); (b) possession of a gun within 1000 feet of a school (US v. Lopez); and (c) gender-motivated violence (US v. Morrison). This is not just about medical marijuana.

  41. Danimal says:

    Hey, Ashley has an English degree, and she laughed at him. C’mon, you need only the barest exposure to economics and a little common sense to understand how supply and demand affect price. I’m really concerned about the old puddin’ head. Impeach Stevens!

  42. Timothy says:

    Suspected nothing, the whole “medical” thing is total bullshit. I’m definitely for legal pot (eventhough ingesting it in any way makes me flip a bitch), but there are definitely pain relievers out there that work. Now, if you have cancer/glaucoma/a free afternoon and you want to smoke a bowl or two, be my guest, but don’t try to get on with this medical thing.

    RE: Stevens: No wonder, the loon has an English degree. Although, to be fair, he was at Chicago long before Milton Friedman. Damn the old and their Keynesianism, DAMN THEM!

  43. ajb says:

    I’m somewhat conflicted about this case.

    I lean towards state’s rights when it comes to legalization of marijuana, but I am wholly against marijuana being _prescribed_ as a medical drug when it’s efficacy is somewhat suspect.


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