Limiting Raich
I have been working over the weekend on our brief to the Court of Appeals, Ninth Circuit in Gonzales v. Raich. Yes, the case goes on. The Supreme Court only ruled on the Commerce Clause theory we won on below. This left us on remand to the Ninth Circuit to reassert our claim that the application of the Controlled Substances Act to Angel Raich (and others like her) violated her fundamental rights (and some other nonconstitutional claims as well). When the brief is filed and on-line, I will post a link to it here.

In the meantime, as I previously blogged, the Lewis & Clark Law Review has a superb collection of papers forthcoming in a symposium on Federalism After Gonzales v. Raich. The only problem with reading them is that they are depressing for those who care about federalism and limited government. They pretty persuasively explain why the Raich decision was horrible for federalism. In my Foreword to the issue I decided to examine how Raich could be treated as precedent by a future Court who cared about federalism as much as did the dissenters in the case. It turns out that, upon examination, the Raich decision is remarkably thin and could be easily marginalized in a future case. My thesis is that, if there is a future will, then there is a way. Perhaps the reason why Raich seems so significant now is that it interrupted what appeared to be a momentum in favor of federalism. The question I address is how lasting is the damage if, in a future case not involving medical cannabis, the Court decides to take the enumerated powers scheme seriously again.

My Foreword is entitled "Limiting Raich." It is very short (around 10 pages) and is now posted to SSRN so you can read a pre-edited version here. This is the abstract:
In Gonzales v. Raich, the Supreme Court rejected a constitutional challenge to the Controlled Substance Act, as applied to the cultivation, possession and use of cannabis for medical purposes as recommended by a physician and authorized by state law. The challenge relied on the precedents of United States v. Lopez and United States v. Morrison in which the Court had found that the statutes involved had exceeded the powers of Congress under the Commerce Clause. As explained by the articles in the symposium in which this Foreword will appear, the Court in Raich has now cast the applicability of these previous decisions into doubt. In this brief essay, I offer a route by which a future majority of the Supreme Court can limit the scope of its decision in Gonzales v. Raich should it desire to put its commitment to federalism above a commitment to national power. Viewed in this light, the decision in Raich is not quite as sweeping as it first appears.
As Larry Solum likes to say, "download it while it's hot."

Update: The Law Review has now made pre-publication versions of all the articles available on its website here.

Justin (mail):
This will be interesting as I set down to write my first postgrad law article, which is tentatively titled "After Raich" - if I have any questions, would it be okay to email you? (I may not get around to doing serious work on this till Christmas, given full time employment in a basically nonacademic setting)
11.22.2005 10:04am
M. Simon (mail) (www):
Science is beginning to show that there is no such thing as addiction.

People take drugs for the same reason doctors prescribe them. To solve medical problems. PTSD, ADD/ADHD, bipolar etc.

So the whole controlled substance act is a sham.

I don't know if you want to attack the "science" behind the act but the opportunity is there.

BTW Freud (1898)thought that chronic cocaine use was self medication. So it is not a new idea.

In fact alcoholism by Civil War veterans was understood as self medication for PTSD (of course that term was not in use).

We sure have gotten stupider over the years.
11.22.2005 10:58am
M. Simon (mail) (www):
BTW if you want to deal with the IXth Amendment Right to Self Medication I have ammunition on that too.
11.22.2005 11:03am
M. Simon (mail) (www):
The paradigm justifying U.S. opiate policy -- availability leads to use; use leads to addiction; addiction is long-term; and addiction becomes a publicly manifest problem -- conveys the idea that unavoidable Social consequences of free access to opiates justify the enormous costs of contemporary U.S. drug policy.

From: Soldier's Disease.

The article discusses opiate addiction. However, the real soldier's disease was alcoholism. And you know, we tried real hard to fix that once.
11.22.2005 12:17pm
Half Sigma (mail) (www):
If Scalia, the guy you'd normally expect to side with federalism is against it now, what chance does it have?
11.22.2005 2:38pm
Defending the Indefensible:
Really glad to hear this case is ongoing, and that the as-applied argument may be replaced with a facial challenge.

I look forward to reading the brief.
11.22.2005 3:17pm
lclr eic (mail) (www):
Thanks for the nod, Professor Barnett. We've just posted the soon-to-be-approved-for-publication versions of the articles on our website.
11.22.2005 3:21pm
Defending the Indefensible:
11.22.2005 3:30pm
M. Simon (mail) (www):
Scalia is not a Federalist. He is a social order guy. In the same way a hard left democrat is an economic order person.

i.e. Scalia is a socialist. Just about different things than a lefty. The impulse is identical.
11.22.2005 6:53pm
Hirbod Rashidi (mail) (www):
If the Court decides to hear the challenge to the federal partial birth abortion ban, the federalism movement could get a much needed boost, not to mention legitimacy, if the so-called federalists strike down the law without even mentioning Roe and its progeny. If possession of guns in close proximity to schools (Lopez) and violence against women (Morrisson) has nothing to do with interstate commerce, neither does aborting a child (no matter how ugly the procedure).
11.23.2005 1:13am