Ashcroft v. Raich
- Introduction
When I wrote these words, I was sitting in the chamber of the Supreme Court of the United States. The last time I was in this room, I was sitting on the bench in the chair usually occupied by Chief Justice Rehnquist—that’s another story altogether. On this occasion, Rehnquist’s chair was empty, but he will participate in the decision of the case heard today--Ashcroft v. Raich.
- The government’s position on the line between economic and noneconomic activity is very weak. Cross substitution of demand is a very reasonable conception of the economic for the purposes of the academic study of economics, but it is just plain silly as an interpretation of Lopez and Morrison. The Respondent’s position in oral argument—that economic activity must be part of a process leading to sale or barter—is much stronger. Under the government’s theory, virtually all human activity is economic, including the very activity at issue in Lopez and Morrison.
- The government’s positon on as applied challenges is also problematic. Essentially, the government seems to argue that the only permissible challenges under the Commerce Clause are facial challenges. The consequence is that the class of activity regulated is all of the activity reached by the statue. If that position is accepted by the Court, then the government wins in Ashcroft v. Raich, but the implication would be that Congress could reach any conceivable activity simply by including the regulation of that activity within a statute that also reached interestate commerce. That position might have been accepted before Lopez and Morrison, but it cannot be accepted today unless the Supreme Court wants to limit or overrule its “New Federalism” cases.
- The government made a very strong case for the idea that it will be hard to draw a line between medical and nonmedical uses. The examples given at the very end of Clement’s rebuttal were especially effective.
- The respondents were remarkably effective in the way they handled the “parade of horribles,” e.g. the possibility that a ruling for them could lead to an inability to regulate intrastate heroin, endangered species, etc. Their key move was to show that such regulations could be validated if the Court does adopt the “essential to a broader regulatory scheme” exception that was suggested in Lopez.
- The respondents were very strong on the economic/noneconomic distinction. Barnett’s prostitution/marriage example was especially compelling. Only Justice Souter seemed outwardly unconvinced by this line of argument.
- The respondents were very strong on the theory of the “essential to a broader remedial scheme” exception. Many of the justices seemed to accept that Congress only had power if the government could show that the regulation of intrastate, noneconomic, state-authorized medical cannabis was essential to regulation of the interstate recreational markiet.
Background The issue in Raich focuses on medical use of cannabis, authorized by a voter initiative in the State of California but prohibited by federal law. In particular, the issue is whether the federal government may prohibit the possession of home-grown, intrastate, noncommercial cannabis, the use and possession of which has been authorized by state law.
In a sense, this case has its roots in the New Deal era. In 1937, the United States Supreme Court began to expand Congress’s legislative power in the famous case of Jones & Laughlin Steel (the case involving the so-called “switch in time that saved nine”). A few years later, the Court decided Wickard v. Filburn, in which a federal limitation of wheat production was upheld as applied to a Mr. Filburn’s use of wheat on his own farm. The rationale of that case was that the general class of all wheat grown and consumed on farms on interstate commerce would be substantial, and therefore, Congress could regulate the wheat even though it was never sold in interstate commerce. In the 1950s through the 1980s, the conventional wisdom was that the Supreme Court had removed virtually all limits on Congress’s power under the Commerce Clause of the Constitution. So long as there was a “rational basis” or even a “conceivable rational basis” for Congress’s action, it would be within Congress’s legislative power. It was therefore a shock when the Supreme Court decided two cases in the 1990s that struck down federal statutes on the grounds that they were outside of Congress’s power to regulate interstate commerce.
The first of these two cases was Lopez, in which the Supreme Court struck down the Gun Free School Zones Act, a federal statute that prohibited the possession of a gun within 1000 feet of a school. The second case was Morrison, in which the Court struck down the Violence Against Women Act. These cases limited Wickard v. Filburn to regulations that involve “economic activity,” a category that the Court has never precisely defined but which seems to apply to actions that are part of a process that leads to sale or barter.
The lower courts have recently begun to apply Lopez and Morrison in “as applied” challenges to other federal statutes. Examples include: (1) a home-assembled machine gun, (2) home-made child pornography, and (3) home-grown state authorized medical cannabis. Ashcroft v. Raich gives the Supreme Court an opportunity to clarify the meaning of Lopez and Morrison and potentially, an opportunity to further limit Congress’s power or to modify its two “new federalism” decisions in a way that would make them toothless. Raich is potentially a very important case, but it also could be decided on very narrow grounds.
The Justices Enter The chamber is hushed as the Justices begin to enter, beginning with Justice O’Connor. Justice Stevens waits a few moments and then speaks, announcing that the Court will take motions of admission to the Supreme Court Bar. This quaint ritual is completed with dispatch, and Justice Stevens calls Paul Clement, the Acting Solicitor General of the United States to the podium.
Caveat The following notes on the oral argument are only notes. In some cases, I was unable to transcribe a question or answer. In almost every case, my notes use some phrases from the actual exchange, but also substitute my own words to convey the “sense” of what I heard as I understood it.
Petitioner’s Argument Paul Clement has the demeanor of a quiet and thoughtful man—an appellate lawyer’s appellate lawyer, if you catch my drift. He begins with by arguing that “Congress has comprehensively regulated drugs through the Controlled Substances Act.” No sooner does he begin, than Justice O’Connor interrupts:
-
O’Connor: But do not our decisions in Lopez and Morrison dictate concerns in this context?
Clement: But those decisions preserved this Court’s Darby and Wickard decisions, which validate the statute here.
O’Connor: But this substance was not in national market or in any intrastate market, unlike the activity at issue in those cases.
Clement: It would be optimistic to believe that there will be no diversion to the national market.
O’Connor: But shouldn’t we assume that California will enforce its law against the sale or transportation of marijuana for nonmedical purposes?
Clement: Marijuana is a fungible product and there is a national market in this drug.
O’Connor: Suppose there was a finding by the District Court that there was no diversion from the medical market to the illegal market?
Clement: That would be irrelevant.
O’Connor: But what would happen in my hypo?
Clement: This Court in a series of cases has made it clear that it is not the conduct of the individual plaintiff, but the class of activities that Congress has chosen to regulate that is relevant.
-
Scalia: But isn’t it the case that Congress doesn’t want interstate commerce in marijuana? How does this regulation serve that end?
Clement: Since the Lottery Case, it has been clear that Congress has the authority to ban a contraband from interstate commerce.
Scalia: But that is not the same rationale as Wickard. You rely on Wickard to prohibit marijuana in order to reduce demand for the interstate market.
Clement: The reality is that there is a 10.5 billion dollar market for marijuana.
Scalia: Suppose hypothetically, there was no diversion
Clement: The problems are parallel.
-
Kennedy: What about the Perez case in which Congress banned loan sharking?
-
Ginsburg: This not commercial activity, is it?
Clement: This is economic activity, but not commercial activity. It is like the production of wheat.
-
Souter: We can’t generalize from these plaintiffs, can we? Other medical users may purchase their cannabis from the illegal market?
O’Connor: Wasn’t the wheat in Filburn in the interstate market? Not all of it was consumed on the farm.
Clement: The wheat was consumed on the farm.
O’Connor: But wasn’t other wheat from this same farm used in interstate commerce?
Clement: The disposition of the particular wheat at issue in Filburn was not certain, but the case involved wheat consumed by the farmer as his own bread.
Justice Kennedy: Is this a harder or easier case than Filburn, given that the substance here is illegal?
Clement: Easier, because Congress can prohibit contraband. Marijuana is fungible, and Congress could conclude that any island of lawful possession is a threat to regulation of the contraband. Moreover, the legitimate use has been made available to patients in the form of a THC pill, Marinol.
Ginsburg: But on this record, isn’t their evidence that the pill does not work. Would the patients have any defense if they were criminally prosecuted?
Clement: The Oakland Cannabis Buyers Club case, as we read it and some members of this Court may disagree, rejects a medical necessity defense. But there is a deeper flaw in Respondent’s position: there is a mismatch between the California law and the argument that this conduct does not involve interstate commerce. California provides a defense even to those who purchase marijuana from the illegal interstate market.
-
Stevens: What class of activities is at issue here? Are you saying that there can never be an as applied challenge?
Clement: Yes, under the commerce clause, there can be no as applied challenge.
-
O’Connor: In Morrison didn’t we say that the Commerce Clause does not reach noneconomic activity that only affects commerce through a “but for” causal chain?
Clement: In Morrison, the activity was noneconomic.
O’Connor: Isn’t this activity noneconomic, because the marijuana here was grown for personal use?
Clement: But Wickard v. Filburn is indistinguishable.
Justice Kennedy: If we rule for the plaintiff’s wouldn’t the price for marijuana go down?
Clement: Yes, the price would go down. Congress is trying to increase the price for marijuana by creating a black market. Marinal provides a safe version of THC, and that provides a hook for the application of Congress’s Commerce Clause power. The statute trumps the individual physician’s determination that raw marijuana is medically necessary. The federal regulations do not allow doctors to make such a determination.
Stevens: Can we ignore a district court finding that marijuana is medically beneficial?
Clement: It depends. If the context is review of the scheduling decision, then the medical evidence would be relevant. The FDA has no inherent hostility to THC; it has rescheduled marinol from the schedule 2 to schedule 3.
Ginsburg: Have there been any challenges to marijuana’s position on schedule one?
Clement: Yes. Efforts have been made. The Institute of Medicine Study made it clear that smoked raw marijuna has no future as a legitimate phramaceutical. Rather, we would take the raw material and synthesize the medically beneficial ingredients. This is because smoking marijuana is harmful.
Souter: If the Respondent’s argument suceeds then we would have the question whether recreational use would be covered by our ruling. In deciding what the appropriate subclass might be, can’t we take into account the health benefits of medical marijuana?
Clement: It would not be a good idea for the courts to second guess Congress.
-
Barnett: May it please the Court, I have two points. The first point is that the activity involved here is wholly intrastate and noneconomic in nature. The second point is that regulation of this activity is not essential to a broader regulatory scheme.
Kennedy: But isn’t simple possession part of the market.
Barnett: It depends on the facts. Posession of marijuana for sale or after purchase is part of the market, but possession of home grown marijuana for personal medical use is not.
Kennedy: But isn’t marijuana fungible?
Barnett: Fungibility is at issue in this case, but the fungibility of marijuana does not speak to the question whether possession of marijuana for personal medical use is economic activity.
-
Scalia: What about the Endangered Species Act? Can Congress reach possession of a individual member of an endangered species if there is no economic activity.
Barnett: That might be essential to a broader regularoty scheme, but in this case the medical use of marijuana is isolated by state law from the interstate market.
Scalia: What is the basis for narrowing the category of activity in that way?
Barnett: The State of California has narrowed the class of activity by authorizing only medical cannabis.
Scalia: But isn’t it true that among the users of medical cannabis are whole communes with lots of people in them smoking marijuana.
-
Breyer: I haven’t been able to understand why it would be that Congress has no power when the state acts. Why would state regulation limit federal power?
Barnett: The federal government can only reach noneconomic 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.
Breyer: What if a state were to authorize use of cocaine or heroin or genetically modified tomatoes that Congress believed were harmful to health?
Barnett: Congress could reach such noneconomic activity if it were essential to a broader regulatory scheme.
Breyer: So you are asking us to compare the state and federal schemes and to determine whether the it is essential to the federal scheme in light of what the state scheme does. That sounds difficult for this court to do. The government is arguing in this case that large numbers of consumers will use medical marijuana, and hence that lower prices will undermine the federal scheme. We won’t know what effect the state law will have on the federal scheme. Won’t that be a mess?
Barnett: There are two points in your question. (1) whether numbers of medical users will be large, and (2) whether it will be possible to identify medical users and hence distinguish them from recreational users. On the first point, the numbers are very small. The government quotes the National Organization for Marijuana Laws for their figure of 100,000. We quote the official government figures showing the number is insignificant. These people are taken out of the illegal market by the California law.
Breyer: But isn’t the effect for Congress to decide?
Barnett: There is a threshold issue. If this is noneconomic activity, then it can only regulated if essential to a broader regulatory scheme.
Kennedy: But isn’t this just like baking bread or washing dishes, which our cases show is an economic activity?
Barnett: Those can be economic activities if they are part of a commercial enterprise, but the government’s position leads to the conclusion that washing dishes at home is economic.
Souter: Assume there are 100,000 users, under the California statute, can’t they buy it on the street? The statute does not differentiate between possession of homegrown and street-bought marijuana.
Barnett: But medical users have every incentive not buy marijuana on the street. They can be prosecuted for buying it on the street.
Souter: Couldn’t it be the case that millions of medical users would be buying marijuana on the street?
-
Ginsburg: If we rule for you, why wouldn’t our ruling cover someone in a neighboring state who grew their own marijuana for medical use even though the state had not authorized it?
Barnett: There are two differen answers to this question. First, assuming this Court does not create an “essential to a broader regulatory scheme” exception to Lopez and Morrison, then your ruling would reach noneconomic medical use in states that have not authorized medical cannabis use. Second, if you do recognize the “essential to a broader regulatory scheme” exception, then the question is whether the lack of authorization makes a difference. California, for example, will issue ID cards that will help to isolate medical use from the interstate market.
Ginsburg: But there are no ID cards now.
Barnett: But the Court should trust the state to take those measures necessary so that the state authorization serves its intended purpose.
-
Breyer: Now I think I understand your position. You are arguing that if the activity is noneconomic, then Congress can only reach it under the “essential to a broader regulatory scheme” exception. But then doesn’t the Morrison case go my way, on the theory that the regulations challenged there were essential to a broader scheme.
Barnett: That’s why the “essential to a broader regulatory scheme” exception must be interpreted narrowly—so that it is consistent with Morrison.
-
Breyer: But isn’t the connection to the market closer than in Morrison?
Barnett: But here, unlike Lopez where the gun was from interestate commerce, the marijuana is wholly intrastate.
-
Scalia: If there had been an interstate connection in Lopez, wouldn’t we come out
there other way?
Barnett: But here there is no interestate connection.
Scalia: That sounds like Wickard v. Filburn, where the family was eating the wheat they grew on their own farm.
Barnett: If the only activity relating to wheat on the Filburn farm was eating it at the family dinner table, the case would never have been brought.
Scalia: Isn’t that exactly what Wickard v. Filburn was about? I don’t think you’ve characterized that case fairly.
Barnett: The phrase “home consumed” in context meant consumed on the farm, by feeding to livestock, etc.
Breyer: But wasn’t homegrown and consumed wheat still regulated, irrespective of the particular use? The question was whether it “exerted substantial economic effect”.
Barnett: At that time, the Court was using the narrower definition of “commerce” that Justice Thomas has argued for. What we would call it today is “economic activity.” Filburn was engaged in economic action as part of a commercial farming enterprise.
Scalia: So why isn’t this economic activity?
Barnett: In Wickard v. Filburn the wheat was grown as part of a commercial enterprise and fed to livestock sold on the market.
Stevens: What is your view on the effect of the state law on the interstate market? Increase prices, no effect on prices, or decrease in prices?
Barnett: Can I choose trivial reduction of price?
Stevens: If you reduce demand, then you will reduce prices? Wouldn’t it increase prices?
Barnett: No, if you reduce demand, you reduce price.
Stevens: Are you sure?
Barnett: Yes.
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.
Kennedy: Are prescriptions limited to cases where marijuana is life saving?
Barnett: It is limited to a list of illnesses.
Ginsburg: I have procedural question. You’ve asked for an injunction against criminal prosecutions. Isn’t there an equitable principle against enjoining criminal prosecutions?
Barnett: We’ve also asked for an injunction against the seizure of marijuana, which has occurred in this case. Such seizures put the supply at jeopordy.
-
Clement: Respondent wishes the Court to believe that medical cannabis is hermetically sealed, but the state law is not designed to limit the class of authorized activity to the intrastate noncommercial marijuana. We have cited the NORML figure which indicates that there are 100,000 users. The Respondent’s brief indicates that .5% of the poplulation uses medical marijuana; that translates into 170,000 users. As to what conditions are covered, the last item on the list includes any other condition that gives rise to chronic and serious harm to physical or mental health. That is a very broad definition. In real world cases, the defense provided by the California law was made available to a defendant who had 19 ounces of marijuana and a scale. That case was allowed to go a jury. In a Santa Cruz case, a 250 person cooperative claimed the benefit of the law. The line between the illegal market and authorized medical use is not practical.
Impressions Both oralists did very well. And both sides have weaknesses in their theories. Here are some specific points:
