This morning, the Supreme Court announced that it was granting the government’s petition for certiorari in Raich v. Ashcroft. In Raich, the Ninth Circuit held that the application of the Controlled Substance Act to persons who cultivated their own cannabis for medical use, or had caregivers cultivate it for then at no charge, was unconstitutional because it exceeded the power of Congress under the Commerce Clause. Assuming a normal briefing schedule, the oral argument should be some time after mid-October.
Raich will represent the third great Commerce Clause case in 15 years. They seem to come in five year intervals. Lopez in 1995, Morrison in 2000 and now Raich in 2005. A ruling for the government in Raich would, in my view, represent the effective repudiation of Lopez and Morrison, for the government’s reasoning would allow Congress it to reach whatever activity it chooses provided that its statutory scheme was sufficiently large enough. In other words, by the government’s theory, the more power that Congress claims, the more justified is its claim of power. Therefore, if the Court reaches the merits, whatever it decides in Raich v. Ashcroft will be a landmark decision with enormous importance for the future of federalism.
Update: FULL DISCLOSURE: It occurred to me that some readers may not know that I have been one of the principal attorneys in the case since its inception.
Update: A reader writes: “Not being a lawyer myself, I am sure I missing something simple and basic, but your statement wasn’t enough for me to understand which side of the case you are working on.” A fair queston. I argued the case on behalf of Angel Raich and Diane Monson in the Ninth Circuit.
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