Our co-blogger Randy Barnett is arguing for the first time before the US Supreme Court on Monday in the marijuana cases, taking the liberal, libertarian pro-drug rights position. We all wish him luck. Not only does Randy have an able and much more experienced adversary arguing the case for the government, but Randy’s case will be a difficult case to win.
First, as I may imperfectly recall, in cases it hears fully, the Supreme Court more often overturns decisions than affirms them. Second, the 9th Circuit has a reputation for being overturned at higher rates than typical circuits. Third, the federal government has been regulating and prohibiting marijuana for a long time and will almost certainly continue to regulate and prohibit most uses of marijuana even if Randy wins.
On the other hand, the plaintiffs in this medical marijuana case are well-suited for limiting the scope of the interstate commerce clause of the Constitution, and Randy certainly understands the scope of interstate commerce as well as anyone in the country.
It is one of those cases where, if the Court is intellectually honest and actually determines interstate commerce in any way that makes logical sense, Randy’s side will win. Yet it would be awfully hard for the Court to strike down federal legislative control over marijuana regulation even where (as here) the marijuana is pretty clearly not in interstate commerce.
In their brief the Government argues:
Moreover, the record affirmatively shows that respondents’ homegrown drug activities cannot be divorced from the overall drug market regulated by Congress. Both respondents Raich and Monson were consumers of lawful drugs listed on Schedules II through V, before turning to marijuana, and respondents’ claims of medical necessity suggest that both would purchase marijuana illegally if necessary. Raich also admits to past marijuana purchases. Each of these facts confirms what Congress found: that activities such as respondents’ displace market transactions and threaten to swell the illicit drug market. [citations omitted]
Yet every choice displaces another choice: If I buy and read a book, I am cutting back on my TV watching, thus affecting the market for TV. If a Justice is elevated from a Circuit Court position to the US Supreme Court, he or she is deciding not to enter into negotiations to become a cowboy (or a law firm partner).
As Barnett has pointed out, every decision is an economic one to an economist. Nobel economist Gary Becker analyzed the decision to have children in economic terms, and (as I recall) Judge Richard Posner once famously asserted that rape in effect cheats on the market for dating. Do we conclude that procreation and forcible rape are therefore always in interstate commerce, just because they are economic decisions to some of our best economists?
The Court is in a bind: if it follows inertia (which it usually does), it in effect reads the interstate commerce clause out of the Constitution and makes the government under it one effectively unlimited by enumerated powers. If the Court takes the commerce clause seriously, on the other hand, it drives a small, but significant wedge into the federal government’s power to prohibit drugs.
When things get really tough (as this case will be for the Court), the best course is not to try to finesse the situation, but rather simply to follow the law as scrupulously as possible.
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