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.
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