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Raich Oral Argument Now On-Line
The Ninth Circuit really has its act together. The oral argument in the Raich case that I argued only a week ago on Monday in Pasadena is now available on-line. It runs about about 1 hour and 15 minutes. The judge doing most of the questioning (about standing) at the beginning is Judge Beam from the Eighth Circuit. He is the judge who dissented from the last ruling in our favor. The soft spoken judge who opens the argument is Judge Pregerson; the judge with the younger-sounding voice is Judge Paez. I feel constrained from commenting too much on what happened during the argument. You can hear it for yourself here. You can find the briefs of the parties and amici here.

The key cases for us are Stenberg v. Carhart (SCOTUS, 2000) and Planned Parenthood v. Gonzales [PDF] (9th Circuit, 2006). Stenberg establishes two propositions: (1) There is a separate and surviving fundamental right to life (and health) even after the right of privacy is overcome by the state's interest in protecting the life of a viable fetus. (2) A medical procedure cannot be prohibited unless there is no reasonable medical dispute that the procedure is never necessary to protect the life or health of a woman. Planned Parenthood essentially follows Stenberg but adds the following: The issue to be addressed by Congress (to which the courts should defer) is not whether the medical procedure is necessary, but whether there is a consensus among medical authorities that it is necessary. In the latter case, it was not rational for Congress to find the existence of a consensus since substantial disagreement obviously existed.

In Raich, the need for medical cannabis to preserve life is strongly supported by some medical authorities, including the Institute of Medicine (for example in the case of wasting syndrome or nausea accompanying chemotherapy). So under Planned Parenthood and Stenberg, given the existence of ample objective support for its use among medical and public health authorities (though not, of course, a complete consensus), the government may not completely prohibit the medical use of cannabis when a licensed physician says it is necessary to preserve one's life. However, the government may, if it so chooses, heavily regulate its use to ensure it is not misused or abused (as it presently does with cocaine, methamphetamine, and other Schedule II controlled substances).

[NOTE: If you click on the above link, you will be prompted either to save the file to disk or open with Windows Media Player. Some have had a problem playing directly from the link without first saving to disk. Also, if the previous direct link does not work you can use this link to request case number file 03-15481.]

Update: A commentator asks:

Why isn't the FDA approval process the heavy regulation that you concede is permissible in your hypothetical world? Medicinal marijuana will be perfectly available once the FDA just goes through the process of approving it.
The short answer is that putting the onus on a seriously ill person to undergo the FDA approval process before she can use a homegrown substance to save her life places an "undue burden" on her right to life under Planned Parenthood v. Casey. Under Stenberg, "regulation" is to be distinguished from complete "prohibition." The FDA process you describe is used to determine permitted from prohibited. The regulations that would be permissible are those, such as with Schedule II controlled substances that ensure access to the drugs by those who need it while preventing abuse without imposing an undue burden. Such access cannot be denied so long as there exists substantial medical authority for the necessity of such a medical procedure.

Or, put another way, so long as there is no consensus among medical authorities that such a procedure is never necessary. Other possible regulations are suggested by those in Canada, e.g. requiring two physicians concur that using cannabis is necessary for a particular patient and/or requiring that other substances be tried first and be shown ineffective. This is all a matter for Congress, not the courts.

Think of it this way. Lots of dangerous drugs like cocaine and methamphetamine are available by prescription and we rely on state-licensed physicians to be the gateway between these substances and patients who need them. We do not rely upon a single physician to determine whether a particular substance should be permitted or prohibited, but when substantial medical authority exists for a procedure's necessity it cannot be prohibited.

Defending the Indefensible:
Why is the 9th Circuit using proprietary Microsoft codecs?
4.3.2006 12:53pm
wt (mail) (www):
Why isn't the FDA approval process the heavy regulation that you concede is permissible in your hypothetical world?

Medicinal marijuana will be perfectly available once the FDA just goes through the process of approving it.
4.3.2006 1:20pm
Hans Bader (mail):
The relevant case most supportive of Randy's position is the partial birth abortion case, Stenberg v. Carhart.

That case says that you don't have to show that the medical profession as a whole believes that a particular course of treatment is valid to be entitled to it. You only have to show, at the most, that there is a respectable minority of physicians who view your proposed course of treatment as the best option.

The Carhart case involved abortion, not medical marijuana.

But that is not a basis for distinguishing it, since both involved medical treatment.

The liberty interests protected by the Fourteenth Amendment expressly include the right to live, not just the right to an abortion.

(Indeed, the Fourteenth Amendment does not expressly mention the right to an abortion at all, although it expressly forbids state action that deprives someone of their life without due process of law).

There is no logical reason why a medical procedure that takes life (a late-term partial birth abortion that kills a viable fetus) should be given more constitutional protection than a medical procedure that saves it, in the eyes of many respectable physicians (use of a particular drug as a medicine).

(Some users of medical marijuana have argued that it is essential to save their lives, not just to minimize their suffering).
4.3.2006 1:58pm
M. Simon (mail) (www):
Is it possible that the whole controlled substance regime is protecting us from a phantom menace?

Is Addiction Real?
4.3.2006 3:41pm
Andrew Hyman (mail) (www):
Professor Barnett,

At footnote 4 of your Appellants Opening' Brief, you stated:

As a matter of original meaning, the protection of fundamental individual rights from federal interference resides in the word "proper" in the Necessary and Proper Clause and the Ninth Amendment rather than in the Due Process Clause of the Fifth Amendment.


But regarding the Necessary and Proper Clause, Chief Justice Marshall stressed that that Clause "purport[s] to enlarge, not to diminish the powers vested in the government. It purports to be an additional power, not a restriction on those already granted." McCulloch v. Maryland, 17 U.S. 316, 420 (1819) quoted in Printz v. United States, 521 U.S. 898, 942 n. 2 (1997) (Stevens, J., dissenting, joined by Souter, Ginsburg &Breyer, JJ.). See generally infra note 119 (further discussing the Necessary and Proper Clause). Do you mean that you disagree with Marshall, Souter, Ginsburg &Breyer about the meaning of the Necessary and Proper Clause? Why?

Regarding the Ninth Amendment, James Madison was very clear about what rights were meant to be protected by that amendment. In his speech introducing the Bill of Rights in Congress, Madison acknowledged the view that "the constitution is a bill of powers, the great residuum being the rights of the people." Thus, for example, the right to carry handguns near schools has been recognized by SCOTUS as an unenumerated federal constitutional right, because the federal government was given no power to abrogate that right.

Why do you think that the Ninth Amendment also carved out rights from the enumerated powers? The plain language of the amendment is clear that unenumerated rights can be be denied or disparaged for various reasons (e.g. because they have not been approved by the democratic process), as long as they are not denied or disparaged on account of the enumeration of rights in the Constitution. Again, Madison expressed himself very clearly in that same great speech introducing the Bill of Rights:

It has been objected also against a bill of rights, that, by enumerating particular exceptions to the grant of power, it would disparage those rights which were not placed in that enumeration; and it might follow, by implication, that those rights which were not singled out, were intended to be assigned into the hands of the General Government, and were consequently insecure.


Why do you assert that the Ninth Amendment did anything more than counteract the rule of expressio unius, as Madison described?
4.3.2006 4:44pm
Andrew Hyman (mail) (www):
I didn't mean to include this sentence: "See generally infra note 119 (further discussing the Necessary and Proper Clause)."
4.3.2006 4:49pm
Randy Barnett (mail) (www):
I think this about the Ninth Amendment because of the authority cited in our reply brief and also because of the evidence of the original meaning of the Ninth Amendment that I analyze here. As for the original meaning of the Necessary &Proper Clause, although Marshall is far from the last word, even his expansive reading of the Clause, which was roundly condemned at the time as sanctioning a usurpation of power, has been routinely exceeded by the modern Supreme Court. While a brief is not the place to get into this level of historical detail, the amicus brief filed by the Reason Foundation and the Cato Institute (available here) does nicely summarize the evidence of the original meaning of the Ninth Amendment and its implications for our case.
4.3.2006 4:55pm
BruceM (mail) (www):
The FDA does not have authority to approve a Schedule I substance for sale/human consumption (or at the very least, the former).
4.3.2006 5:29pm
BruceM (mail) (www):
I do think the govt should be estopped by irrationality from scheduling marijuana as C-I while pure THC (the active ingredient) is scheduled C-III when manufactured by a pharmaceutical company and calls it Marinol.
4.3.2006 5:38pm
Andrew Hyman (mail) (www):
Professor Barnett, thank you for responding. I have carefully read your article, "The Ninth Amendment: It Means What it Says," to which you linked in your response above. I didn't notice any mention of the words "expressio unius" in your article, which seems odd given that the Ninth Amendment is targeted against that rule of construction. Why no mention? I also find it odd that your article placed tremendous and primary reliance upon Madison's speech introducing the Bill of Rights, and yet never mentioned Madison's discussion (in that speech) of the "great residuum being the rights of the people," which I already quoted in my initial comment above.

If one understands the Ninth Amendment in a straightforward manner as counteracting the rule of expressio unius, then the Ninth Amendment protects rights (e.g. the right to carry guns near schools) that the federal government was given no power to violate. And, it does more than that. It also protects other positive rights (i.e. democratically adopted rights such as are contained in state bills of rights and in federal statutes) from being trivialized in our nation's courts, merely on account of the fact that those rights are not enumerated in the Bill of Rights.

Any one with any sense "believes in" natural rights. I sure do. The question is not whether such rights exist and whether they are retained, but rather the question is: who gets to identify and enforce them? Courts or legislatures? It's critical to keep in mind that the power to identify and enforce one person's rights often means power to take away another person's rights. I find it impossible to believe that the framers would have given such broad and limitless power to an unaccountable judiciary. I think we agree that the framers were not doofuses.
4.3.2006 5:45pm
Cornellian (mail):
Isn't it rather ironic that you are free to use marijuana while in perfect health provided you have a religious basis for doing so, but if it's necessary to save your life (or at least save you from excruciating pain during what's left of it) then you can't?
4.3.2006 6:03pm
ReaderY:
Roe v. Wade's core finding that the State has no personhood interest in a fetus because the word "person" as used in the Due Process Clause lacks "prenatal application" almost exactly tracks the language and logic of Johnson v. Eisentrager, which similarly found, after a similar survey of constitutional history, that the same word in the same clause lacks "extraterritorial application". See also U.S. v. Verdug-Urquidez.

Given Roe and its past applicability to partial-birth abortion it would seem to make perfect sense that the analogous case of an enemy combatant brought temporarily -- partially, if one will -- into questionable U.S. territory solely for the purpose of terminating or otherwise disposing of that combatant would trigger no restrictions on the power of the government. The right to terminate is equal in both cases; both classes of human beings equally lawfully have no rights and are equally lawfully subject to termination on demand; their personhood statuses got described in essentially the same way.

But the Supreme Court held otherwise. It held that once a human being enters U.S. territory and moves from being extra-territorial to territorial, even liminally or partially territorial, it gains rights and becomes subject to legal processes. The human being's former extraterritorial status or the temporariness of its territorial situation is simply not considered.

Why is it not the case that if a human being moves -- even temporarily and partially -- from a prenatal to a natal status -- that its former prenatal status should even be relevant? If we accept, as we now must, that the law of the extrateritorial simply does not apply to the even liminally or partially territorial, why should the law of the prenatal be thought to continue to have any application or relevance to questions involving the liminally or partially natal?

The cases cited appear to have only prenatal application. The argument appears to simply ignore Rumsfeld. It appears to act as if the limitation Rumsfeld imposes on the applicability of the law of nonpersonhood never happened.
4.3.2006 9:50pm
ReaderY:
Note: Sorry here, got sidetracked by the comments on partial-birth abortion, support Professor Volokhs request to keep comments topical and don't want to subtract from Professor Raich's focus on the medical marijauana FDA status, for which arguments about abortion are mere (and I think rather poor) analogies. The analogy between the law of war and the law of abortion is a serious one, worth raising and exploring in a more appropriate context. War is a case where we willing to largely regard the life of fully adult human beings. Positions on when war is justifiable (Only to preserve national survival? To protect economic interests?) often bear remarkable analogies to positions on when abortion is justifiable.
4.3.2006 10:03pm