This is a rough analysis of oral arguments in Raich v. Ashcroft. IANAL, standard disclaimers apply. The full transcript of the orals is available at the Supreme Court's web site.
Please remember in reading this that much of what gets said at argument is determined by what questions the Justices ask, and that interruptions and stubborn insistence on answering a specific hypothetical are par for the course. Also, much of the time they use the argument session as a framework for having a discussion with each other, rather than actually trying to get new information about the legal issues. (Think of a Senate confirmation hearing and the questions Senators ask with the cameras rolling, and you get the general idea.)
Wickard v. Filburn (1942)
A farmer growing wheat and feeding some to his livestock and using some for his family was fined for growing more than the allotted amount under the Agricultural Adjustment Act. The Act was held to be within the reach of Congress's powers under the Commerce Clause. The fact that the large number of farmers growing wheat for their own use would have a substantial impact on the market brought that class of activities within the reach of Congress's power to regulate. New rule for Commerce Clause cases: an activity that is not necessarily regarded as commerce can still be regulated, whether or not its effect on interstate commerce is direct or indirect, and whether or not any individual's actions by themselves have only a trivial effect on interstate commerce, as long as the aggregate effect is not trivial.
US v. Lopez (1995)
The Violence Against Women Act, a statute forbidding the knowing possession of a firearm in a school zone, was found to be unconstitutional, not within the reach of Congress's powers to regulate under the Commerce Clause. The regulated activity (possession of a gun in a school zone) was non-economic, and the link between that activity and a substantial effect on interstate commerce was too attenuated. New rule for Commerce Clause cases: the activity to be regulated must "substantially affect" interstate commerce.
US v Morrison (2000)
The Violence Against Women Act was found to be unconstitutional; Congress did not have the power to regulate this activity under the Commerce Clause. The Act provided a cause of action for persons who were victims of crimes of violence because of gender, against their attackers. Gender-based crimes of violence are not economic activity, and the cause-effect chain connecting the crimes to interstate commerce is too attenuated. Aggregation of the effect of the crimes on interstate commerce makes it clear that the crimes do have a substantial impact on interstate commerce but under these circumstances, where the causal chain is so remote, such aggregation is not permitted. Additionally, Congress is not usually permitted to exercise a police power; such laws are generally the province of the States. New rule for Commerce Clause cases: the activity to be regulated must be an "economic activity" that substantially affects interstate commerce.
Test to be used, according to the government and Raich/Monson
The Government says: If the activity is economic but local, there is a substantial impact on interstate commerce, and the regulation is "an essential part of a larger regulation of economic activity, in which the regulatory scheme could be undercut unless the intrastate activity were regulated", then it's within the power of Congress to regulate.
Additionally, the Government wants the activities of the plaintiffs *not* to be considered as a separate subclass distinct from the activities that the Controlled Substances Act covers; a constitutional challenge should always be a challenge to the statute based on the whole class of activities covered.
The Government also argues that the plaintiffs' activity is economic and that it has a substantial impact on interstate commerce.
Raich and Monson say that their activity is not economic, that it has a trivial impact, if any, on interstate commerce, that their activity should be taken as a subclass (an "as-applied" challenge to the statute), and that as applied, the regulation of their activities is not an essential part of a larger regulatory scheme that would be undercut otherwise (the scheme would do fine if their activities weren't covered).
Raich and Monson also say that the test to be used is first, to decide if the activity to be regulated is economic. In that case it needs to have a substantial effect on interstate commerce. If the activity is non-economic, then the regulation needs to be an essential part of a larger regulatory scheme that would be undercut otherwise. If either of those tests are met, then the regulation is valid.
Background: What did Congress want to accomplish with the Controlled Substances Act, and how does the California statute impact that?
Both sides agree that Congress wanted to drive up prices, and keep people out of the illegal drug market. Ideally, Congress wanted there to be *no* illegal drug market.
Can't Congress regulate possession of mj because it can decide a substance is contraband and ban it from the channels of interstate commerce? (This is the power to prohibit the interstate transportation of a commodity through the channels of commerce.)
Clement says: Yes, that's the whole point of what Congress is trying
to do.
Barnett says: No, the test that applies here is whether the activity
Congress wants to regulate has a substantial impact on interstate
commerce.
Scalia points out that regulating as contraband is different than
Wickard, which requires substantial impact on interstate commerce.
Against that backdrop, they get to decide: is the activity economic, does it have a substantial effect on interstate commerce, and is the regulation an essential part of a broader regulatory scheme?
How do we decide if the activity is economic?
Clement says that possession, manufacture and distribution of a
commodity with a ready market is economic.
Barnett says that manufacture and possession of something not intended
for the market is non-economic. Having an effect on the market does not make
something economic activity. Economic activity is determined by looking at
the nature of the activity: something associated with sale, exchange, barter
or the production of something for sales, exchange, barter. It should be
part of a commercial enterprise in some way.
Ginsburg says that there is nothing bought and sold here. So it's not
a commercial enterprise.
O'Connor says that in Wickard, some of the wheat went to market and
some to cattle that would be sold, so it's distinguishable from the present
case.
Scalia says that this case is exactly like Wickard, and that because
the marijuana grown at home doesn't have to be bought elsewhere, that's
exactly like the farmer in Wickard not having to buy the wheat that he grew
on the farm and used himself.
Can we isolate the class of medical marijuana users from the rest of activity regulated by Congress in deciding whether their activity has an impact on the market?
Clement says, no. First off, when you decide whether a class of
activities has a substantial impact on the market, you have to look at the
entire class of activities Congress sought to regulate. So in this case you
look at recreational use and medical use together. Second, there's no way
practically to separate recreational users from the medical users. Everyone
will claim it's for medical use, and drugs are fungible (meaning that you can't
tell by looking at them whether they were grown by someone for their own use
or whether they were produced and sold in the illegal drug market).
Barnett says, yes. California has isolated the class of medical
marijuana users from the interstate market, and we should trust California to
enforce its laws. Sick people won't be participating in the market because
they don't want any trouble with the law. And they'll be issuing state ids so
it will be easy to see who is a legal user and who isn't.
Clement says that California law doesn't distinguish between marijuana
for medical use that was bought in interstate commerce and marijuana
that was grown in the back yard, so the law doesn't isolate the medical
users from the market.
Stevens seems to question Clement's assertion that you can't consider
a narrower class, because in that case, a challenge to a statute under
the Commerce Clause can never have a valid "as-applied" challenge, i.e.
once you find that the statute is constitutional on its face, covering
the whole broad class of activities Congress included, then that's it.
Souter says that sick people will buy it off the street because 10% of
the public does so now and most of them don't get arrested.
What would the impact of medical marijuana use be on the market if these plaintiffs win?
Clement says that there will definitely be diversion of medical
marijuana to the illegal drug market. Congress found that there is a link
between the national and the state drug markets, and the courts shouldn't
second-guess Congress.
Barnett says that there would be a trivial impact, and that the prices
might decline a little as some users withdraw from the illegal market. But of
course we don't know that there are actually any users in that market.
Can we take the two plaintiffs in this case as representative, or do we have to look at the whole class of medical marijuana users and ask what effect they have on the market?
Clement says you have to look at all medical marijuana users because
there is no reason to assume that all of them will grown their own.
Barnett says that you have to just look at the activities before the
Court, i.e. these two plaintiffs.
Souter says that figuring out the potential effect on the market based
on these two plaintiffs is not a good basis for deciding constitutional law.
How attenuated is the impact on the market in this case?
There was no good discussion of this issue by anyone. People made arbitrary statements about how the chain was remote (O'Connor) or not (Scalia, Souter), but without any rationale.
Isn't there a large number of potential users, and doesn't that mean a big impact on the market?
Clement: Yes, it's at least 100,000 users, and you can't assume they'll
all grow their own.
Barnett: It's not going to be that many people, because it's only people
who are sick enough to use it and will want to use it and qualify for
a doctor's recommendation. That's not like the number of people who
might want to use it recreationally, which could get much larger over
time.
Souter says that if there are 34 million people in California, then
having 100,000 of them doing chemo isn't unreasonable, so it could be
a large number of people with a large impact on the market.
Congress wants fewer users in the mj market, and California law would potentially get users out of the illegal market. So how is the sweep of Congress's legislation an essential part of a broader regulatory scheme? Isn't it broader than necessary?
Clement says: No, because there would be diversion of medical marijuana
to the illegal market, which would undercut what Congress is trying to do.
Also, allowing possession here would frustrate Congress's goal in promoting
health. (!)
Barnett says: It's not an essential part of a larger regulatory
scheme; this class of plaintiffs can be excepted because California
has isolated their activities and polices them so that they are separate
from the market.
Breyer says: There are two opposing factors. The prices would be lower,
and Congress wants higher prices to make it harder for people to buy mj. But
fewer people would be in the market, which Congress wants. In these cases
we defer to Congress to make these decisions.
Barnett says: The Court must decide whether or not the activity is
economic. If it's not, then the Court decides whether the regulation is
part of a larger regulatory scheme. So the Court won't have to do this
hard balancing act in every case, only the ones where it's non-economic
activity being reached.
In other states where there is no regulation covering mmj use, can Congress prohibit use of all mmj there, even if it can't in California?
Clement says that if mmj use in California is exempted from the CSA
under the respondents' arguments, then it's exempted in all the states,
*and* that recreational use would be covered as well, since the
argument essentially is that private growing and use is non-economic,
and that doesn't have to do with medical or non-medical use.
Barnett says that the reason that medical use could be exempted
in California is that it's isolated from the illegal drug market
by California law, but that doesn't happen in states where there is
no regulation, nor does it happen when you are talking about non-medical
use. Once the activity is isolated from the larger drug market, then
the regulation is not part of an essential scheme that would be undercut
if it didn't apply to these users.
These are items that aren't strictly relevant to the legal analysis, but legal analyses are really just political. So it's important that these points get in there somewhere.
What other remedies or protections would these plaintiffs have? Medical necessity defense? Could they go to the FDA and get mj rescheduled?
Clement says: There's no medical marijuana defense under the Osborne
case. Of course these plaintiffs are not being prosecuted. They could go to
the FDA, and after all, Marinol was rescheduled so if there were some great use
for mj, it would be rescheduled too. But smoking is so harmful that there
is no medical use.
Barnett says: Read the Dolbin brief about government obstruction of
research into the medical uses of marijuana. Also look at the Institute of
Medicine report which the government has also quoted in its brief. Also,
whether or not the plaintiffs could go to the FDA doesn't have anything to do
with whether Congress can regulate their activity under the Commerce
Clause.
What's the history of FDA applications?
Clement says that there were a number of petitions, one relatively recently (2001? 1999?) and one that was a a four or five iteration effort that got to court in the 1990's. But there is not justification for changing the schedule given the current state of the record.
Are there other medical remedies besides marijuana that these plaintiffs could use instead?
Clement says that Marinol is an alternative which has all of the
medical benefits and it's available now.
Ginsburg pointed out that the record shows that for at least on
of the plaintiffs, over 30 drugs were tried and only mj worked.
Isn't this all just a big cover-up for drug legalization?
Clement emphasized several times that there would be
diversion from the medical marijuana users to the illegal drug market.
Scalia talked a couple of times about communes of a whole lot
of people with alleged medical needs, qualifying under California law.
Souter did not feel that these two plaintiffs were representative
of their entire class (of medical mariujuana users).
Why are these folks asking for an injunction from criminal prosecution? Shouldn't they just defend themselves if a case is ever brought?
Barnett pointed out that Diane Monson has already been raided by the DEA, and forfeiture of this sort puts at risk her supply of medicine she needs to relieve her suffering.Since smoking mj is harmful, isn't it bad for medical mj users to use it?
Clement says that there is no future for smoking mj as medicine, and
that oral forms of delivery such as Marinol have to be used.
Barnett says that people who are suffering or dying may be willing to
risk the long-term harm to get the immediate, life-saving relief that
mj has been shown to provide, and that showing is in the record.
Kennedy asked whether the California statute was limited to
life-threatening illnesses (no).
Clement says that there's a catchall at the end of the statute which
makes for a very broad definition of a serious medical condition for
which someone could get a mmj recommendation.
Isn't there a problem with the California law, that the mmj user can get their medicine any way they like, including off the street?
Clement pointed this out several times; once the medical user has it, possesssion is legal.
Stevens seemed sympathetic to the notion that an "as-applied"
challenge for medical marijuana users could succeed. He also asked about the
statute trumping the judgment of physicians and patients, and the
government's argument that there
*must* be diversion to the national market from medical marijuana users.
O'Connor wanted Lopez and Morrison to govern this case, and wanted to
trust California to enforce its laws. She also accepted the activity of the
plaintiffs as non-economic because there is no buying and selling.
Ginsburg wanted to find some way to help these particular plaintiffs
and protect them from criminal liability.
Souter seemed convinced that many mmj users would buy off the street
and that enforcement would be impractical. He also thought that the number
of mmj users would be large and that there would be a substantial impact on
the market.
Scalia seemed aghast at the idea of communes with lots of people
claiming medical marijuana use. He also raised the question of laws
prohibiting possession of ivory or eagle feathers. And he doesn't think
California can police the medical mj market effectively.
Kennedy thought that since it's not lawful to sell marijuana, this
case is easier than Wickard. He also thought that possession of mj indicated
participation in the market, and was concerned about fungibility.
Breyer thought that the plaintiffs should go to the FDA and get mmj
rescheduled. He was also concerned with the difficulty of analyzing a federal
regulatory scheme to see what parts of it were "essential". He was also
anxious about the "tomato children"...
Note that Thomas said nothing, as usual, during the argument.
Also, Rehnquist will not take part in cases argued in November unless there is
a 4-4 vote, in which case he will cast the tie-breaker. [Can someone verify
this? I recently read an article which said that this holds only for cases
in the first two weeks of November.]