Tuesday, November 30, 2004
Ashcroft v. Raich (The Medical Marijuana Case)
Unconfirmable raised some questions regarding yesterday's oral argument in Ashcroft v. Raich so I figured that I would impart what I know and witnessed yesterday at the Supreme Court.
First some background for those less familiar with the underlying facts and law (let's face it, even good SCOTUS reporters are often not lawyers so they sometimes miss the legal nuances). In 1996, by referendum, California voters approved the Compassionate Use Act, which permits under specific circumstances persons to obtain prescriptions for marijuana from licensed doctors (in the interest of full disclosure, I was a registered voter in CA when this was on the ballot. I voted, no largely because I felt that the law was poorly drafted and potentially allowed for widespread abuse). The conditions are too numerous to recount here and have little to do with the more interstate federalism elements of the case, but needless to say there is some dispute over California's ability to effectively enforce their own law and prevent people who do not qualify for compassionate use from obtaining it and then claiming it is "medical marijuana" as opposed to recreational pot.
The other relevant law is, of course, the Controlled Substances Act (CSA), which classifies marijuana as a "Schedule 1 narcotic" and prohibits its sale, production and distribution. The CSA, however, also makes it a federal crime to simply possess marijuana without any requirement that the marijuana have moved in interstate commerce. One of the named plaintiffs in the original actions, had received a prescription from her doctor under the Compassionate Use Act (CUA) and had begun to grow her own personal supply of marijuana. Somehow, I'm not clear how, the DEA got wind of this activity and raided the house, seizing the marijuana. To my knowledge, no criminal charges were filed, but nevertheless, several other similarly situated plaintiffs formed a group and sued the Justice Department for an injunction stopping the continued enforcement of the CSA as it applied to people growing their own personal marijuana in accordance with the CUA. The basis for the claim is that the CSA is unconstitutional as applied to them because it regulates intrastate possession and not interstate commerce. Thus, the possession section is beyond the scope of Congress's power under the Commerce Clause. (To my knowledge they did not raise a 10th Amendment claim in this case, largely, I believe, because of the result in United States v. Oakland cannabis Buyers Cooperative, 532 U.S. 483 (2001).)
At first blush this case appeared to me to bring directly to the forefront the underlying tension between the Court's 1937 decision in Wickard v. Filburn and its more recent decisions in U.S. v. Lopez (1995) and U.S. v. Morrison (2000). However, after having the privlidge of attending oral argument yesterday, I'm not as sure that these issues will be adequately resolved. (For a blow-by-blow account of oral argument see Prof. Lawrence Solum's excellent transcript at this link. I don't know how he did it, but it is very, very accurate.) I'm going to assume everyone knows what these issues are, but if not leave a note in the comments and I'll elaborate.
The government focused much of its argument on the section in Lopez that appears to allow for regulation of purely intrastate activity if it is part of a larger regulatory scheme. In other words, the government took the position that the aggregation principle that was employed in Wickard is applicable here, because the individual possession of marijuana, regardless of its purpose, has an substantial effect on the overall market for marijuana, which Congress, by enacting the CSA, regulated (i.e., by eliminating it). The respondents, represented very ably by Randy Barnett, a B.U. Law Professor and contributor to the Volokh Conspiracy, countered by pointing out that the activity in question here, possession of intrastate, homegrown and personally consumed marijuana regulated by California's statute, is non-economic activity. The very same class of activity that the Court in Lopez placed the possession of guns in schools zones in, and in Morrison, extended to include violence against women. In other words, according to Barnett, medical marijuana is like guns in school zones and violence against women, non-economic, and therefore, beyond the reach of Congress's power to regulate interstate commerce. He also pointed out, as did the Ninth Circuit, that there was nothing on the record that established any of the marijuana in question traveled across state lines or into the market for illegal drugs in any way. Further, there was no showing of a commercial transaction in any sense of the word, no sale, transfer, barter, trade or other kind of exchange has ever been claimed by the government.
So we are left with the question, what is medical marijuana? Is it commercial activity in the sense that it affects the market for illegal drugs that Congress has regulated, or is it non-economic activity subject only to regulation by the State of California. The answer is likely that it is both, depending on the situation in which the good is seized. Not a very compelling answer, but the only one that appears to make sense. For it is reasonable to assume that the people who are growing their own supply would otherwise have participated in the illegal drug market to obtain their goods, it is possibly commercial in nature and subject to Congressional regulation. On the other hand, absent a showing that this is the case (which may be impossible) it seems reasonable to infer that the drug never traveled in interstate commerce and is not being used as a substitute for the illegal drug; and therefore, is non-commercial, non-economic and cannot be regulated.
Regardless of which side anyone comes down on, the impact on commerce clause jurisprudence is bound to be huge, giving fodder to law professors and lawyers for years to come. My personal predication is that the government will prevail with Justice Breyer writing for possibly only a plurality of the Court. The only question will be what effect, if any, will this case have on Lopez and Morrison, my guess, as little as possible.
First some background for those less familiar with the underlying facts and law (let's face it, even good SCOTUS reporters are often not lawyers so they sometimes miss the legal nuances). In 1996, by referendum, California voters approved the Compassionate Use Act, which permits under specific circumstances persons to obtain prescriptions for marijuana from licensed doctors (in the interest of full disclosure, I was a registered voter in CA when this was on the ballot. I voted, no largely because I felt that the law was poorly drafted and potentially allowed for widespread abuse). The conditions are too numerous to recount here and have little to do with the more interstate federalism elements of the case, but needless to say there is some dispute over California's ability to effectively enforce their own law and prevent people who do not qualify for compassionate use from obtaining it and then claiming it is "medical marijuana" as opposed to recreational pot.
The other relevant law is, of course, the Controlled Substances Act (CSA), which classifies marijuana as a "Schedule 1 narcotic" and prohibits its sale, production and distribution. The CSA, however, also makes it a federal crime to simply possess marijuana without any requirement that the marijuana have moved in interstate commerce. One of the named plaintiffs in the original actions, had received a prescription from her doctor under the Compassionate Use Act (CUA) and had begun to grow her own personal supply of marijuana. Somehow, I'm not clear how, the DEA got wind of this activity and raided the house, seizing the marijuana. To my knowledge, no criminal charges were filed, but nevertheless, several other similarly situated plaintiffs formed a group and sued the Justice Department for an injunction stopping the continued enforcement of the CSA as it applied to people growing their own personal marijuana in accordance with the CUA. The basis for the claim is that the CSA is unconstitutional as applied to them because it regulates intrastate possession and not interstate commerce. Thus, the possession section is beyond the scope of Congress's power under the Commerce Clause. (To my knowledge they did not raise a 10th Amendment claim in this case, largely, I believe, because of the result in United States v. Oakland cannabis Buyers Cooperative, 532 U.S. 483 (2001).)
At first blush this case appeared to me to bring directly to the forefront the underlying tension between the Court's 1937 decision in Wickard v. Filburn and its more recent decisions in U.S. v. Lopez (1995) and U.S. v. Morrison (2000). However, after having the privlidge of attending oral argument yesterday, I'm not as sure that these issues will be adequately resolved. (For a blow-by-blow account of oral argument see Prof. Lawrence Solum's excellent transcript at this link. I don't know how he did it, but it is very, very accurate.) I'm going to assume everyone knows what these issues are, but if not leave a note in the comments and I'll elaborate.
The government focused much of its argument on the section in Lopez that appears to allow for regulation of purely intrastate activity if it is part of a larger regulatory scheme. In other words, the government took the position that the aggregation principle that was employed in Wickard is applicable here, because the individual possession of marijuana, regardless of its purpose, has an substantial effect on the overall market for marijuana, which Congress, by enacting the CSA, regulated (i.e., by eliminating it). The respondents, represented very ably by Randy Barnett, a B.U. Law Professor and contributor to the Volokh Conspiracy, countered by pointing out that the activity in question here, possession of intrastate, homegrown and personally consumed marijuana regulated by California's statute, is non-economic activity. The very same class of activity that the Court in Lopez placed the possession of guns in schools zones in, and in Morrison, extended to include violence against women. In other words, according to Barnett, medical marijuana is like guns in school zones and violence against women, non-economic, and therefore, beyond the reach of Congress's power to regulate interstate commerce. He also pointed out, as did the Ninth Circuit, that there was nothing on the record that established any of the marijuana in question traveled across state lines or into the market for illegal drugs in any way. Further, there was no showing of a commercial transaction in any sense of the word, no sale, transfer, barter, trade or other kind of exchange has ever been claimed by the government.
So we are left with the question, what is medical marijuana? Is it commercial activity in the sense that it affects the market for illegal drugs that Congress has regulated, or is it non-economic activity subject only to regulation by the State of California. The answer is likely that it is both, depending on the situation in which the good is seized. Not a very compelling answer, but the only one that appears to make sense. For it is reasonable to assume that the people who are growing their own supply would otherwise have participated in the illegal drug market to obtain their goods, it is possibly commercial in nature and subject to Congressional regulation. On the other hand, absent a showing that this is the case (which may be impossible) it seems reasonable to infer that the drug never traveled in interstate commerce and is not being used as a substitute for the illegal drug; and therefore, is non-commercial, non-economic and cannot be regulated.
Regardless of which side anyone comes down on, the impact on commerce clause jurisprudence is bound to be huge, giving fodder to law professors and lawyers for years to come. My personal predication is that the government will prevail with Justice Breyer writing for possibly only a plurality of the Court. The only question will be what effect, if any, will this case have on Lopez and Morrison, my guess, as little as possible.
# posted by mouldfan : 9:51 AM
