Does Congress want Angel Raich to break the law?

How can Congress reach Angel Raich's personal, non-commercial use of medical marijuana?

Congress has the power under the Commerce Clause, Art. I, § 8, Cl. 3, to regulate commerce among the several states.

In United States v. Lopez, 514 U.S. 549, 558-559 (1995) the Court found that the Commerce Clause confers upon Congress power to regulate “three broad categories of activity," namely:

• “the use of the channels of interstate commerce”;
• “the instrumentalities of interstate commerce, or persons or things in interstate commerce”; and
• “those activities having a substantial relation to interstate commerce, i.e., those activities that substantially affect interstate commerce.”

Since Angel Raich is not obtaining her medical marijuana or any supplies from out-of-state, the government must argue that her personal use of medical marijuana substantially affects interstate commerce.  Thus, the government argues in its Merits Brief:

Congress has the power under the Commerce Clause, Art. I, § 8, Cl. 3, and the Necessary and Proper Clause, Art. I, § 8, Cl. 18, to regulate local activity that substantially affects interstate commerce. *** The CSA constitutionally regulates the commercial market in marijuana, which is international and interstate in scope. Marijuana is regularly imported into the United States illegally, and domestic trafficking in the drug occurs on a massive scale.

In other words, the government is arguing that Raich (and other hypothetical medical marijuana users aggregated) substantially affect the illegal drug market because they obtain their medicine legally.  Get that? 

The United States is arguing that it's a bad thing that Raich and others similarly situated are able to obtain legal medicinal marijuana, because in so doing, they don't avail themselves to the interstate illicit drug market.  Because they don't avail themselves to the illicit drug market, they therefore decrease the demand for illegal drugs.  Hence, the "substantial affect."

I don't know what you think, but decreasing demand for an illegal product seems great.  Let's let doctors, not dope pushers, control the marijuana market.

Matt adds to my position.  In the comments to this post he writes:

Actually, the government is arguing that the cultivation and/or use of medicinal marijuana increases the illicit drug trade. Specifically, they refer to the fact that "Congress found that '[l]ocal distribution and possession of controlled substances contribute to swelling the interstate traffic in such substances (21 U.S.C. 801(4))". (Petitioners' Brief p. 23)

I agree with Matt, but the point of this post was not to suggest that the "more legal users means less felons" is the only approach Congress is relying on.  But it is one approach.  On page 25 of that same brief, the government writes:

Users of homegrown marijuana and those who distribute it for free (such as the John Doe respondents) may ultimately purchase marijuana in the black market, if, for example, their production efforts fail or fall short. Indeed, respondents, like many other claimed medical marijuana users, view marijuana consumption as a medical necessity.

This language supports my original postition, namely that people who obtain medical marijuana for free must not buy marijuana from the black market.  The government is not arguing that people will start using the free stuff, and once they can't get that, they'll become illegal drug users.  They're arguing, inter alia, that as sick people use legal medical marijuana, they'll turn less to the black market.  I'm still trying to figure out what that's a bad thing.

[Cross-posted on the Ashcroft v. Raich blawg.]