Monday's oral arguments in Ashcroft v. Raich, where the Supreme Court took up the case of two California medical marijuana patients, featured much discussion of the merits of medical marijuana. But that wasn't the issue the Supreme Court needed to decide. While the Supreme Court's decision will determine whether Angel Raich, Diane Monson, and other medical marijuana patients can take their medicine without fear of federal raiders, this case is ultimately about federalism and states' rights.
But in recent years, the Rehnquist Court has whittled back the scope of the interstate commerce clause, most strikingly in two cases from the mid-1990s. In one, the Court held unconstitutional a federal law punishing gun possession near schools; in the other, the Court held unconstitutional the Violence Against Women Act. In both cases, the Court found that the link between the acts the laws were intended to punish and interstate commerce were so tenuous that the commerce clause did not apply. In those cases, the Court scaled back Wickard to regulations that involve "economic activity," which the Court has not defined, but appears to mean activities that are part of a process leading to sale or barter.
From the moment acting Solicitor General Paul Greenlee began his oral argument, the issue of whether intrastate, noncommercial activity (growing and smoking medical marijuana) was "economic activity" governed by Wickard was at the fore. Justice O'Connor questioned whether the Court's decisions in the 1990s cases had any impact on this case, given that "this substance was not in a national market or in any intrastate market, unlike the activity at issue in those cases."
"Marijuana is a fungible product and there is a national market in this drug," Clement responded.
Justice Ginsburg challenged Clement: "This is not commercial activity, is it?"
"This is economic activity, but not commercial activity," Clement argued. "It is like the production of wheat."
When Raich attorney Randy Barnett had his turn, the give-and-take followed similar lines. "May it please the Court, I have two points," Barnett began. "The first point is that the activity involved here is wholly intrastate and non-economic in nature. The second point is that regulation of this activity is not essential to a broader regulatory scheme."
Here Barnett raised a key point. A second line of defense for the government is that even if intrastate use of medical marijuana is not an "economic activity," if allowing it to occur would interfere with a legitimate federal regulatory function, that could be a reason to rule in the government's favor. As Barnett put it, "The federal government can only reach non-economic activity if the state's authorization of that activity would undermine a broader scheme for the regulation of interstate commerce. The state statute isolates medical cannabis from the larger recreational market."
Court watchers are notoriously uneager to attempt to divine how the Supreme Court will rule, but a few brave souls have taken a shot at it. "So how will Ashcroft v. Raich come out?," asked University of San Diego law professor Lawrence Solum on his Legal Theory blog (http://www.lsolum.blogspot.com). "I don't know. I got a sense that O'Connor, Ginsburg, and perhaps Stevens were quite sympathetic to the respondents. Based on his questions, Justice Kennedy seemed quite favorable to the government. One would guess that Justice Thomas will be the hardest member of the Court for the government to win. One might also guess that it will be hard for the petitioners to win Souter or Bryer, who both are very skeptical of Lopez and Morrison. Justice Rehnquist is hard to call. We didn't hear from him. One suspects he is both pro-federalism/state power and pro-federal regulation of drugs. One can imagine this case coming out 5-4 either way. Before argument, I would have said it could be 9-0 either way, but if I allow myself the dangerous pleasure of reading the tea leaves, I now think that is unlikely."
Findlaw columnist Marci Hamilton was a little braver. After discussing how Raich differs from the controlling case, Wickard, Hamilton gave her bottom line: "In sum, given all these significant distinctions between Wickard and Raich, the Court could easily hold that while Congress did not exceed its Commerce Clause power by regulating home wheat use, it did exceed its Commerce Clause power by regulating intrastate medical marijuana."
Slate senior editor and Supreme Court watcher Dahlia Lithwick, somewhat cynically, came to the opposite conclusion. "Should the court's staunchest conservatives get away with being for states' rights only when the state in question isn't California?" she asked. "No. Will they? Oh, you can bet your bong on it."
Several major newspapers were also pessimistic about Raich's prospects. "States' Rights Defense Falters in Medical Marijuana Case," read the New York Times headline. "Justices React Skeptically to Medical Marijuana Arguments," ran the San Jose Mercury News headline.
Oakland attorney Robert Raich, husband of plaintiff Angel Raich, who has, unsurprisingly, followed the case closely from the beginning, remained cautiously optimistic. "You can't predict how the justices are going to vote on the basis of the questions they asked, but one thing we can tell is that they are definitely familiar with this case and have done their homework."
Raich raised an important point about the implications of a loss at the Supreme Court. "Even if we should lose, this would still have no effect on patients in the states that have medical marijuana laws," he told DRCNet. "Those laws would remain in full force and effect, protecting patients from harassment from state and local authorities. That's important, because 99% of arrests are by state and local authorities. A bad ruling would have no effect on the vast majority of patients. On the other hand, if we win, it will be a tremendous victory for patients all over the country because they will know they can have the medicine they need."
A decision in the case is expected in July.