Why the Market Argument Will Prevail in Raich

Why does Congress have power under the Commerce Clause to criminalize the intrastate, non-commercial use of medicianl marijuana? What the government has argued, and what the Court will accept (probably 9-0 or 8-1), goes like this.

    1.    Congress has chosen to enter the broader market of regulating controlled substances.  Once of these controlled substances is marijuana.
    2.    Every time a person purchases medical marijuana, he does not turn to the illicit drug market.  Because fewer people purchase drugs illegally, demand for illegal drugs decreases. This decreased demand causes the prices to go down.  In a similar vein, Judge Posner observed: "[L]aw enforcement activity raises the cost and hence price of illegal drugs and as a result of the price increase reduces their consumption."
  3.    Since the price of illegal marijuana has decreased, people who could not have afforded marijuana, can afford the reduced price.  Thus, there are more drug users.
    4.    Congress has a legitimate interest in keeping drug prices high (as part of its scheme to keep drug usage low).
    5.    Therefore, Congress may regulate non-commercial marijuana use to keep prices high, and thus demand, low.

There are obvious criticisms to this argument.  First, if more people turned to marijuana useage, wouldn't the price of marijuana increase to its previous levels?  And thus, wouldn't the new users quit using marijuana?  Well, maybe.  Or perhaps they would become addicted and unable to quit.

Then again, if Congress taxed marijuana, perhaps fewer people would use it.  After all, it's harder for most teenagers to obtain alcohol (regulated by legal) than it is for them to obtain illegal drugs.  But Congress, and not the Courts, has a better capacity to analyze these types of questions.  Again, I disagree with this reasoning, but it's the one that will prevail.

Granted, as Posner and Becker both note, allocating dollars from the war on drugs to other social problems would arise more utility.  But courts aren't supposed to make such policy determinations.

I think the market argument shares the same flaws present in Lopez and Morrison, but I'll adress that issue in a later post.

(Thanks to Tom Lincoln for the Becker-Posner post).