Ninth Circuit Rules in Raich Case: In a ruling issued this morning, the Ninth Circuit rejected our Due Process Clause and medical necessity claims. The opinion is here. I will have more comment on this later, but there are three hopeful aspects of its opinion. First, the panel went out of its way to suggest that Angel appears to qualify for a medical necessity defense should she be prosecuted criminally.

Although Raich appears to satisfy the factual predicate for a necessity defense, it is not clear whether the Supreme Court's decision in United States v. Oakland Cannabis Buyers' Cooperative forecloses a necessity defense to a prosecution of a seriously ill defendant under the Controlled Substances Act. 532 U.S. 483, 484 n.7 (2001). Similarly, whether the Controlled Substances Act encompasses a legislative "determination of values," id. at 491, that would preclude a necessity defense is also an unanswered question. These are difficult issues, and in light of our conclusion below that Raich's necessity claim is best resolved within the context of a specific prosecution under the Controlled Substances Act, where the issue would be fully joined, we do not attempt to answer them here.

Second, it maintained that if more states were to recognize a right to use cannabis for medical purposes, the Due Process Clause right asserted in this case (as it narrowly defines it) could be recognized as fundamental under the "emerging awareness" approach in Lawrence:

We agree with Raich that medical and conventional wisdom that recognizes the use of marijuana for medical purposes is gaining traction in the law as well. But that legal recognition has not yet reached the point where a conclusion can be drawn that the right to use medical marijuana is "fundamental" and "implicit in the concept of ordered liberty." See Glucksberg, 521 U.S. at 720-21 (citations omitted). For the time being, this issue remains in "the arena of public debate and legislative action." Id. at 720; see also Gonzales v. Raich, 125 S. Ct. at 2215.

As stated above, Justice Anthony Kennedy told us that "times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress." Lawrence, 539 U.S. at 579. For now, federal law is blind to the wisdom of a future day when the right to use medical marijuana to alleviate excruciating pain may be deemed fundamental. Although that day has not yet dawned, considering that during the last ten years eleven states have legalized the use of medical marijuana, that day may be upon us sooner than expected. Until that day arrives, federal law does not recognize a fundamental right to use medical marijuana prescribed by a licensed physician to alleviate excruciating pain and human suffering.

Finally, the Court did not rule on our statutory interpretation claim because it had been raised too late in the procedings and was therefore waived.

The first two of these rulings by the Ninth Circuit were far more than an otherwise losing party had any right to expect.

Update: I will be discussing today's decision with Al Rantel tonight on KABC Talk Radio 780AM in Los Angeles at 9:05ET/6:05PT 11:05PM ET/8:05PM PT. You can listen on-line here.

Raich and Scrutiny Land: I have an op-ed in today's Wall Street Journal on the Raich case that the editors entitled, Reefer Madness (link good for 7 days). I explain why

the rejection of Ms. Raich's constitutional claim highlights a serious problem with the Supreme Court's current approach to protecting liberty under the Due Process Clauses of the Fifth and Fourteenth Amendments. Ever since the New Deal, the Court will only consider challenges to a law if the liberty being restricted is a "fundamental right." Unless the liberty is characterized by the Court as "fundamental," it will not evaluate or "scrutinize" the government's claim that its restrictions are truly necessary. With laws restricting mere "liberty interests" not deemed fundamental, the Court will blindly accept the government's claim that its restriction is "reasonable."

In short, to get into "Scrutiny Land" — where the government is forced to justify its restrictions on liberty — a person such as Ms. Raich must jump through the hoop of showing that the liberty she claims is fundamental. Otherwise she automatically loses.

So what, you ask, makes some liberties fundamental and others not? According to the Supreme Court, either the right must be "implicit in the concept of ordered liberty" or it must be "deeply rooted in the Nation's history and traditions." Under either formulation, however, how a right or liberty is defined makes all the difference. Because the very same act may be accurately defined either narrowly or broadly, a court's choice of definition will dictate the outcome of the case.

Here's how.

Angel Raich contended that using the CSA against her infringed her right to preserve her life. If any right is fundamental, this one is: the right to "life" is specifically mentioned in the Due Process Clause itself, and even the federal Partial Birth Abortion Act, like the abortion law struck down in Roe v. Wade, includes an exception to its ban when the procedure is necessary to protect "the life of a mother." So if the right at issue in Ms. Raich's case is the right to preserve her life, she has jumped through the fundamental rights hoop and entered Scrutiny Land.

How does the government respond to this? By claiming that the liberty in question is the right to use cannabis for medical purposes, which it denies is either "implicit in the concept of ordered liberty" or "deeply rooted in the nation's history or traditions." Setting aside the embarrassing historical facts that marijuana was completely unregulated in the United States until the mid-20th century, and was widely used as a medication for most of our history, it is still obviously much harder to claim that a right to use cannabis for medical purposes meets either of these tests, at least as compared with a right to preserve one's life.

Given that everything turns on the description of the right, which one is correct? The dirty little secret of constitutional law is that they are both right. Ms. Raich is preserving her life and she is using cannabis for medical purposes. Because whether a liberty gets protected under the Due Process Clause depends on which accurate description a court chooses to accept, a court may rule however it wishes simply by choosing how to describe the right.

When the Ninth Circuit accepted the government's description of the right in question, the outcome followed like night follows day — because a "right to use cannabis for medical purposes" is not deeply rooted, etc., it was not fundamental. Because it was not fundamental, Ms. Raich could not enter Scrutiny Land, and her challenge failed.

Naturally, I would recommend reading the whole thing. (I will open comments on my next post, so today's comments on Raich are in one location.)

Dorf on Raich: Professor Michael Dorf, of Columbia Law School, had an interesting post on Dorf on Law yesterday on the Raich case that mirrors some of my thoughts in today's Journal.

The court also rejected her substantive due process claim, largely on the strength of Washington v. Glucksberg. The court plausibly read Glucksberg to require a narrow "careful" definition of the right in question, which it defined as the right to use medical marijuana. Not surprisingly, it found that society had not yet recognized any such right as fundamental.

To my mind, this only shows the poverty of the Glucksberg approach. The real question is whether the government can ban a medical treatment necessary for sustaining life on the ground that Congress by fiat declares that the medical treatment is unnecessary or not efficacious, without granting a litigant any right to present factual evidence to the contrary. The answer to that question could be yes. We might think that Congress, or a state, or an administrative agency, is better situated to make medical judgments — even if sometimes those medical judgments are politically motivated — than are the courts. Or we might think that the judgment of Congress is entitled to a rebuttable presumption of correctness. But under the Glucksberg approach, we don't even ask the question.

By coincidence Mike presented a paper at my Advanced Constitutional Law Seminar at Georgetown yesterday and he and I discussed in class why Judge Pregerson, a stalwart liberal on the Ninth Circuit, might have ruled as he did. Mike reports on our exchange (as, a propos my previous post, I fully expected he would), and offers his own thoughts here.

But then, to repeat the question I asked yesterday, why did Judge Pregerson not also consider that in Lawrence the Supreme Court did not re-frame the issue in a way that undermined the plaintiffs' claims? Instead of characterizing that case as involving, for example, a general right to sexual liberty (likely too broad to win approval) or a right to have same-sex anal sex (likely too narrow to win approval), Justice Kennedy accepted the plaintiffs' framing of a right of intimate association that includes control over adult consensual sexual acts. The Lawrence opinion doesn't exactly say that there is such a right, because it's unclear what level of scrutiny the Court applies, but it also doesn't adopt the Glucksberg framing. So what gives with Pregerson?

Professor Barnett suggested that Pregerson accepted the Glucksberg approach because he, Pregerson, was predicting that if the case made it up to the Supreme Court, there would be five votes for using that approach---at least in a case involving medical marijuana. And, Barnett said, that's probably a good prediction in light of the questions Justice Kennedy asked during the oral argument in Raich, which were quite hostile to the plaintiffs' arguments.

For me, this raises the question of whether a lower court judge should base his ruling in an area of uncertainty on his prediction of how individual Justices currently on the Court would vote, rather than his own best judgment about what the law is or should be. The Supreme Court decision in Raich 1 was not, after all, a holding on the substantive due process issue, and so nothing in that case bound the 9th Circuit in in Raich 2. My own view, which I argued at some length in a 1995 article in the UCLA Law Review, is that except in a few unusual circumstances, the job of lower court judges is to make their best legal judgment, not to predict the legal judgment of those who may end up reversing them. Here, I'll just reproduce the barest core of the argument: "The prediction [approach] undermines the ideal of the impartial judge. It conceptualizes a high court as the sum total of the views of the individual judges. By contrast, the ideal of impartiality requires that judges attempt to separate their individual views from the requirements of the law. Thus, even if the high court judges are persons of impeccable character, the prediction model undermines the ideal of impartiality by equating particular high court judges' views with the law."

Later in the Spring, I will be contributing to a symposium sponsored by the Michigan Law Review on Glucksburg, so that will give me an opportunity to expand greatly my the critique of that approach.

More blogging on Raich on Drug Law Blog here