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Final Push for Monday's Argument: My preparation for Monday's Supreme Court argument in Ashcroft v. Raich continues this weekend. I learned a tremendous amount from moot courts at Georgetown, Oklahoma City University, and Harvard Law School. My thanks to all who served as judges for their invaluable feedback and to all those who attended for their support and encouragement.

Update:SCOTUS Blog reports that Acting Solicitor General Paul Clement will be arguing the case for the government. By all accounts, he is a brilliant attorney and most impressive oralist who had, at the time of his appointment in July, 18 previous arguments before the Court (and probably more since then)--as compared with my . . . none.

Update:Here is a detailed guide to Monday's argument with pictures and extensive links from Drug War Rant. (Hat tip to Kiwi Pundit)

Good luck to Randy Barnett in fighting for drug rights.--

Our co-blogger Randy Barnett is arguing for the first time before the US Supreme Court on Monday in the marijuana cases, taking the liberal, libertarian pro-drug rights position. We all wish him luck. Not only does Randy have an able and much more experienced adversary arguing the case for the government, but Randy's case will be a difficult case to win.

First, as I may imperfectly recall, in cases it hears fully, the Supreme Court more often overturns decisions than affirms them. Second, the 9th Circuit has a reputation for being overturned at higher rates than typical circuits. Third, the federal government has been regulating and prohibiting marijuana for a long time and will almost certainly continue to regulate and prohibit most uses of marijuana even if Randy wins.

On the other hand, the plaintiffs in this medical marijuana case are well-suited for limiting the scope of the interstate commerce clause of the Constitution, and Randy certainly understands the scope of interstate commerce as well as anyone in the country.

It is one of those cases where, if the Court is intellectually honest and actually determines interstate commerce in any way that makes logical sense, Randy's side will win. Yet it would be awfully hard for the Court to strike down federal legislative control over marijuana regulation even where (as here) the marijuana is pretty clearly not in interstate commerce.

In their brief the Government argues:

Moreover, the record affirmatively shows that respondents' homegrown drug activities cannot be divorced from the overall drug market regulated by Congress. Both respondents Raich and Monson were consumers of lawful drugs listed on Schedules II through V, before turning to marijuana, and respondents' claims of medical necessity suggest that both would purchase marijuana illegally if necessary. Raich also admits to past marijuana purchases. Each of these facts confirms what Congress found: that activities such as respondents' displace market transactions and threaten to swell the illicit drug market. [citations omitted]

Yet every choice displaces another choice: If I buy and read a book, I am cutting back on my TV watching, thus affecting the market for TV. If a Justice is elevated from a Circuit Court position to the US Supreme Court, he or she is deciding not to enter into negotiations to become a cowboy (or a law firm partner).

As Barnett has pointed out, every decision is an economic one to an economist. Nobel economist Gary Becker analyzed the decision to have children in economic terms, and (as I recall) Judge Richard Posner once famously asserted that rape in effect cheats on the market for dating. Do we conclude that procreation and forcible rape are therefore always in interstate commerce, just because they are economic decisions to some of our best economists?

The Court is in a bind: if it follows inertia (which it usually does), it in effect reads the interstate commerce clause out of the Constitution and makes the government under it one effectively unlimited by enumerated powers. If the Court takes the commerce clause seriously, on the other hand, it drives a small, but significant wedge into the federal government's power to prohibit drugs.

When things get really tough (as this case will be for the Court), the best course is not to try to finesse the situation, but rather simply to follow the law as scrupulously as possible.

Marijuana at Target:

Well, target.com at least claims to provide it, doubtless through one of their business partners (the joys of having relatively open search engines) — see here. Thanks to reader Max Motovilov (who credits [H]ard|OCP) for the pointer.

UPDATE: Readers tell me that the provider is amazon, which should give those who hadn't already guessed a sense for what is likely to actually be provided.

An account of the argument in Raich.--

Here is an early account of the oral argument in Raich. It sounds tough.

Nov. 29 (Bloomberg) — Several U.S. Supreme Court justices expressed doubts that states can let seriously ill patients ease their symptoms by using marijuana, a drug the federal government has designated as illegal.

[portions of original post deleted for copyright reasons] ...

Justice Antonin Scalia asked Barnett how his logic would apply to federal laws protecting endangered species. Those laws ban possession of ivory or eagle feathers without regard to whether a person obtained them through interstate commerce.

``Are those laws likewise unconstitutional?'' Scalia asked.

Other states that allow medical use of marijuana are Alaska, Colorado, Hawaii, Maine, Nevada, Oregon, Vermont and Washington, lawyers for the two women said in court papers.

. . .

The case is Ashcroft v. Raich, 03-1454.

UPDATE: Althouse links to an ABC account:

The Supreme Court appeared hesitant Monday to endorse medical marijuana for patients who have a doctor's recommendation.

[post revised with further omissions] ...

Justice Stephen Breyer said supporters of marijuana for the ill should take their fight to federal drug regulators before coming to the Supreme Court, and several justices repeatedly referred to America's drug addiction problems.

Dozens of people, some with blankets, camped outside the high court to hear justices debate the issue. Groups such as the Drug Free America Foundation fear a government loss will undermine campaigns against addictive drugs.

The high court heard arguments in the case of Angel Raich, who tried dozens of prescription medicines to ease the pain of a brain tumor and other illnesses before she turned to pot.

Supporters of Raich and another ill woman who filed a lawsuit after her California home was raided by federal agents argue that people with the AIDS virus, cancer and other diseases should be able to grow and use marijuana.

Their attorney, Randy Barnett of Boston, told justices that his clients are law-abiding citizens who need marijuana to survive. Marijuana may have some side effects, he said, but seriously sick people are willing to take the chance.

Solum's detailed account of the Raich argument.--

As our blogfather Eugene notes, Larry Solum has an amazingly detailed account of the argument in Raich, paraphrasing the main moves. It appears that both sides of the argument did well, but (if Solum's account is accurate) Randy Barnett did brilliantly (with the harder side). Here is the most interesting exchange for me:

Souter: Suppose that 100,000 people are in chemotherapy in California. Then couldn't there be 100,000 users of medical marijuana?

Barnett: There could be.

Souter: If there are 34 million people in California, then there could be 100,000 people in chemotherapy.

Barnett: It is important to remember that the law confines medical cannabis use to the people who are sick and have a physicians recommendation. Wickard v. Filburn's aggregation principle does not apply if the activity involved is noneconomic.

Souter: But isn't the argument that it is economic activity if it has a sizeable effect on the market?

Barnett: No. The effect on the market is only relevant if it is market activity.

Souter: But in Lopez wasn't the effect on the market much more remote than the effect involved in this case?

Barnett: The point is that economic activity and personal liberty are two different categories.

Souter: That is not a very realistic premise.

Barnett: The premise is that it is possible to differentiate economic activity from personal activity. Prostitution is economic activity, and there may be some cross substitution effects between prostitution and sex within marriage, but that does not make sex within marriage economic activity. You look at the nature of the activity to determine whether or not it is economic.

Breyer: If marijuana is medically helpful, can't your clients go to the FDA and get it rescheduled. Then if the FDA rules against them, they can go to court and the FDA ruling can be reviewed for abuse of discretion. And if there is no abuse of discretion, then wouldn't I believe as a judge and an individual that it is doubtful there is a medical benefit? Is medicine by regulation better than medicine by referendum?

RB: I would simply ask you to read the account of obstruction of research in the amicus brief and the Institute for Medicine report cited by both us and the government. It is true that marijuana is smoked, but that is because it saves the lives of some sick people.

As Solum notes, Barnett's marriage/prostitution analogy was particularly good. It's still a difficult case for the Court, but Randy's argument was strong enough that I now think the odds for his side are almost even (remember, however, that I was one of the sages who thought that Kerry would win). After I get a chance to talk with Barnett and Solum, I might revise this estimate.

Medical Marijuana Case--I hope she's Wrong:

I heard NPR's Nina Totenberg report on Raich v. Ashcroft this evening. She ended her segment by suggesting that "by the end of the argument, it wasn't clear that Barnett had even one vote for his position," or words to that effect. Solum's transcript of the argument suggests otherwise, and I think that Randy did a great job. Whether that will be enough to overcome the statist liberal obssession with ensuring that every aspect of human life may be regulated by the federal government (despite a profound lack of constitutional legitimacy for such a position), and the statist conservative obssession with making marijuana users into criminals, remains to be seen. I'm not optimistic, largely because I think that the Court tends to take cues from the political branches, and the conservatives Randy needs to win over aren't exactly getting the sort of strong limited-government signals from Republicans in Congress they were getting in 1995, when the Court began its so-called "federalism revolution" (hah!) in Lopez.

Back From DC: Just returned from DC. As I need to teach Contracts tomorrow morning (Frustration of Purposes and the Coronation Cases), I cannot blog now. Besides its late, and I am pretty drained. But I thought you might want to see me and Nina Totenberg (she's in red, I'm in brown).



Thanks to my many well wishers. Your words of encouragement were really appreciated.
Adler on Importance to Federalism of Raich v. Ashcroft: The press correctly reported the fact that the questions directed towards me were pretty intense. Only one Justice from the "Federalist Five" evinced any awareness of the implications to the Court's so-called "Federalism Revolution" of reversing the Ninth Circuit's decision. This was Justice O'Connor in her tough questions to Paul Clement. (Interestingly, she asked me no questions that I recall. The full transcript of the entire hearing will be very interesting to read.) This does not mean that the other "federalist" Justices are unaware of the consequences, or that they will not appreciate them when decision time comes. But I truly believe that there is no way to rule for the government without essentially limiting Lopez and Morrison to their facts. There will never be another successful Commerce Clause challenge to a federal statute in the Courts of Appeals if the Supreme Court accepts EITHER of the government's two theories: (1) that the activity here is really economic so that Lopez/Morrison does not apply or (2) an exception for regulations of noneconomic activities as part of a broader regulatory scheme that could be undercut unless they are reached applies to this state identified and policed class of activities.

Professor Jonathan Adler has a nice explanation of the serious constitutional issues at stake in a column today on National Review Online entitled High Court High Anxiety: The Supreme Court's medical-marijuana case could send federalism up in smoke. Here is his conclusion:
Despite its apparent importance to drug warriors, Ashcroft v. Raich is not about medical marijuana or drug prohibition. Nor is it about the wisdom, or lack thereof, of allowing chronically ill individuals to smoke weed for medicinal purposes. Rather, it concerns the limits of federal power under the Constitution. Federalism does not play favorites. It limits the scope of federal power to pursue liberal and conservative ends alike. If a majority of the Court remembers this lesson, Angel Raich will get to keep her medicine. More important, the nation will keep the constitutional limits on federal power.
Off now to teach my last Contracts class of the semester.

PS: If you click on the picture I posted yesterday here, it opens on a larger format so you can actually see what Nina Totenberg looks like.
My Exchange With Ramesh Ponnuru in The Corner In the Corner on NRO, Ramesh Ponnuru responds to Jonathan Adler's column by asking:
Why should the analysis of whether criminalizing the medicinal use of marijuana is a legitimate federal power turn on whether a state government has taken a view of the matter? If I follow your argument correctly, the federal government doesn't have the power to prohibit medical marijuana--and it doesn't have that power in Alabama, which also prohibits it, any more than it has it in California, which does not. If the federal law were an exercise of a legitimate power, on the other hand, a state could hardly nullify it within its borders. So the federal prohibition either is or isn't within the federal government's constitutional powers. Aren't the state laws irrelevant to the question?
This is a good question, and one that took me some time to understand. For my answer, click here.
Press Coverage of Ashcroft v. Raich: A lot has now appeared in the press concerning oral argument in Ashcroft v. Raich, including favorable editorials in both The New York Times and Boston Globe. Two particularly insightful analyses appeared today that I thought merited a link. The first, Feds v. Meds, from the Los Angeles City Beat explores the following theme:
The case is a mighty test of states' rights, which this court has previously favored. But the barrage of questions the justices fired at Raich's lawyer, Boston University professor Randy Barnett, revealed more than the possible end of their so-called "federalist revolution." They revealed the interior machinations of a kind of regulatory fever dream in which no government agency will confront the increasingly embarrassing mass of scientific evidence in favor of pot's accepted use as medicine.
In The Supremes Take a Hit, The Austin Chronicle examines the internal contradictions of both ends of the Court:
Indeed, the case will test the court's predictable range of opinion. The more conservative judges - like Rehnquist, who penned the Lopez and Morrison decisions, and Justice Antonin Scalia, who voted with the majority in the recent commerce cases - will be asked to extend their staunch federalist positions to activities they seem predisposed to dislike. Similarly, the court's more liberal justices, like Justice John Paul Stevens, would likely endorse the affirmation of broader federal regulatory authority than his conservative colleagues - but will he do so at the very private cost of the health and well-being of Raich and Monson? On Nov. 29, the contradictions of the court's competing values took center stage, creating a very odd hour of oral arguments.
Ashcroft v. Raich Transcript Now Available On Line: Just finished reading the transcript of the oral argument from Ashcroft v. Raich that was posted today here. Of course, you always think of what you could and should have said that you did not say in the heat of argument. But since I have been doing a good deal of that for the past two weeks anyway, it is good to be reminded of what I actually DID say.