Ashcroft v. Raich oral argument

[Editor's note: Timothy Lynch of the Cato Institute co-authored an amicus brief in Raich.  Mr. Lynch attended the oral argument today and has graciously agreed to share his impressions.]

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.

Comments

[John V. Petersen, Esq.]

When I first read about this case, the Lopez Case immediately came to mind. If memory serves, Justice O'Connor wrote that opinion. Interesting the see that O'Connor started off with that case as a reference. IMO, that is a tough case for the Gov't. Given that she led off with that case, that gives a pretty good clue as to where the Supremes are going. You have to figure Scalia and Thomas - both proponents of the 10th. Amendment - are going to reel in the statute as unconstitional. Most likely, O'Connor will be on board. This could be an 8-1 or 7-2 decision - against the Gov't.

Thanks for posting this summary!!

JVP

[Judy Osburn]

JVP:

No, Rehnquist (joined by Scalia and Kennedy), not O'Connor, penned the majority opinions in both Lopez and Morrison.

However, even before Lopez Justice O'Connor, a proponent of state rights, wrote an extremely applicable analysis of the three important reasons for federalism in FERC v. Mississippi (1982): 1) states serve as laboratories for social experimentation, 2) self-government on local issues, and 3) as a check on tyranny.

O'Connor listed examples illustrating that states service as "laboratories for the development of new social, economic, and political ideas" is "no judicial myth" --including Wyoming's experiment with equal sufferage some 30 years "before that novel idea" bore "national fruit." (FERC v. Mississippi, 456 U.S. at 788 (1982) O'Connor, concurring.) She continued with a paragraph emphasizing the importance of local government as "a cornerstone of American Democracy," stating: "If we want to preserve the ability of citizens to learn democratic processes through participation in local government, citizens must retain the power to govern, not merely administer, their local problems."

So, yes, as you say, O'Connor will be on board.

Though Justice Stevens dissented in both Lopez and Morrison, he nonetheless agrees that federal law should not override contrary state criminal laws. He emphasized in his concurring opinion in Jones v. United States (2000) (where a unanimous court refused to apply federal arson law due to a lack of substantial affect on interstate commerce) "the kinship between our well-established presumption against federal pre-emption of state law." (529 U.S. 848, 859-60.) And in his concurring opinion in Oakland Cannabis Buyers Coop (in which he attempted to limit the reach of the ruling against OCBC) Stevens also quoted Ninth Circuit Justice Kazinsky's statement in Conant v. Walters that physician supervised use of medical marijuana cannot have much effect on interstate commerce.

Justice Thomas has taken every opportunity to write concurring and dissenting opinions castigating Wickard v. Filburn's aggregation principle relied on by the government in Raich. Thomas cannot join any opinion that would give Congress "interstate commerce is whatever we say" power requested by the government in Ashcroft v. Raich. And if Rehnquist, Scalia and Kennedy can follow their own precedents, we will have a clear majority with Stevens, O'Connor and, judging from what I've read from observations of the Raich oral argument, Justice Ginsburg.

So I would also agree with JVP's prediction of a 7-2 decision against the government--except for the unpredictability of some of the otherwise conservative justices caused by the conflict between federalism and their zeal for excessiveness when it comes to the war on (unpatentable) drugs. Therefore I can only hope for a close majority in favor of compassion, common sense, the will of the people in eleven states, and the rights of those in every other state to determine appropriate health regulations.

Judy Osburn
(Civil forfeiture proceedings against our ranch home of 28 years and my appeal of the related federal conviction for maintaining a place where marijuana was grown pursuant to state law for the Los Angeles Cannabis Resource Center, in a cooperative partnership with the Los Angeles Sheriff's Deptment under supervision of the City of West Hollywood, are both presently stayed pending disposition of Ashcroft v. Raich.)