Yesterday, the government filed its brief in Ashcroft v. Raich, the medical cannabis case I have been litigating, which is now before the Supreme Court. It contained no surprises but it continues to be disappointing to witness a Republican administration so completely uninterested in federalism (just as it was disappointing when the Clinton Justice Department brought suit in equity to shut down the Oakland Cannabis Buyers Cooperative, another pro bono client of mine). I realize that disappointment is only an appropriate response if one expects something better or different, and I do know better. Federalism diminishes the power of whichever party controls the Congress or Presidency or both. (And elected Democrats apparently do not think they can afford to look soft on drugs.) But it is still sad–and yes even a bit disappointing–that neither of the two major national parties has any genuine convictions in support of a principal so central to our constitutional system.
Along these same lines, today the American Constitution Society has this post up about Ashcroft v. Raich on its blog:
In the wake of Morrison, Senator Joseph Biden compared the new federalism to the pre-New Deal Lochner era:
“In both eras, the Court adopted these formalistic distinctions in interpreting the Commerce Clause in service of broader political theories shared by a majority of the Court’s members. In the pre-New Deal era, that broader political theory was laissez faire economics; now it is the new federalism. In both instances, the Court has been eager to substitute its own judgment for that of the political branches democratically elected by the people to do their business.”
Raich has given the Rehnquist majority an opportunity to prove Senator Biden wrong. By affirming the Ninth Circuit’s decision, the Court will demonstrate an ability to uniformly interpret the Constitution, even when they dislike the outcome.
And so we shall argue.
Update: SCOTUSBlog has posted the SG’s brief here.
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