This morning the Supreme Court heard arguments in Ashcroft v. Raich (No. 03-1454). There was a lot of interest in the case--a long line of people waiting to get in to see the case. And lots of media, TV crews set up outside for interviews afterward.
By way of background, this case involved a constitutional challenge to the federal drug law--the Controlled Substances Act. There have been many mistaken reports that say the case is about a challenge to California's "Compassionate Use Act." Incorrect. The legal issue before the Court is whether the federal law is an unconstitutional exercise of Congress's power to regulate commerce in the circumstances of this case. (It is an "as applied" challenge.) In other words, can someone be hauled into federal court and then sent to federal prison for the intrastate possession of marijuana for medicinal purposes?
Justice Stevens opened the session with an announcement that Chief Justice Rehnquist would be participating in this case even though he could not be present for the argument. Rehnquist would read the briefs and a transcript of the oral arguments.
Paul Clement, the acting Solicitor General, argued first. He was immediately challenged by O'Connor, who wanted to know how the feds could square its assertion of power in light of Lopez and Morrison. Clement's response was that those two cases preserved, and did not overrule, Wickard v. Filburn. From that point forward, it was pretty much smooth sailing for Clement.
He said marijuana was
fungible and the police would not be able to tell which stuff was legal
and what was illegal. Clement also was allowed to go on and on about
how unhealthy it is to smoke marijuana. Smoking, whether it's tobacco
or marijuana, is a horrible delivery device, etc etc. In one fleeting
moment, Justice Stevens brought Clement back to the constitutional
issue. Stevens asked the SG if he could conceive of a situation where
the federal drug law might go too far. Clement allowed that it was
"conceivably possible," but, in a flash, he moved on to some other
point and there was no follow-up.
Randy Barnett, law professor from Boston University, argued on behalf of Raich. He was allowed a minute to introduce his argument and was then continually peppered with hostile questions. Barnett said there was no "economic activity" in the case, but one justice after another would challenge that statement. "If the feds could reach the wheat used on a farm in Wickard," Scalia kept asking, "why not marijuana consumed by patients in California?" Instead of urging the Court to repudiate Wickard, Barnett tried to argue that that precedent could stand and that Raich could still prevail.
Breyer said he was ill-positioned to make the call on the medicinal value of marijuana. He said Raich should make her case to the FDA. If her case had merit, the FDA would change the rules. Breyer said "Let the experts decide medical questions, not the voters." Barnett referred Breyer to an amicus brief that would show how government agencies are not immune from drug war politics, but Breyer did not seem interested in that inquiry.
Souter, Stevens, and Kennedy pressed Barnett to acknowledge an "economic impact" on the overall "market." If the federal law were invalidated in these circumstances, they wanted to know what would happen to the black market price of marijuana. When Barnett said the impact would be trivial, Souter would not let go of it ... what if the number of patients opting for marijuana turns out to be much, much higher, what then?!
Clement got a few minutes of rebuttal time and he related a Ninth Circuit case where some guy was arrested for marijuana possession. The police also found a scale in his car. The arrestee told the improbable tale that his stash was strictly for medicinal purposes. Clement suggested that these are the absurd cases that are now taking up valuable time in our courts.
The Department of Justice should have had a rough morning. Clement suggested that if people like Raich could legally smoke marijuana, the government's drug control strategy would somehow be "threatened." That policy argument is a real stretch. But, returning to the constitutional issue, Clement also said that the power to regulate commerce must encompass the power to prosecute people who grow marijuana in their basement or garage. Another stretch. And yet, the Court seemed much more skeptical of Raich's legal claim.
Supreme Court watchers know that oral argument is not the end of the game--so Raich may still win. Of the "Federalism Five," the one most likely to waver is Kennedy. Stevens might cross-over on some narrow, technical ground. Maybe. This case should not be a close call, but it is going to be. We should know the outcome by mid-March.
Timothy Lynch is the director of the Cato Institute's Project on Criminal Justice. His writings on the war on terrorism, drug policy, the federalization of crime, and the militarization of police tactics are voluminous and influential.
In 2000, he served on the National Committee to Prevent Wrongful Executions. Since joining Cato in 1991, Lynch has published articles in the New York Times, the Washington Post, the Wall Street Journal, and many others. He has also appears on many television programs. His full biography, which includes links to many of his articles, is available here.