Medical Marijuana for Legal Nerds

To dredge up an old topic, I thought some people might be interested in this development. The summary below is by Professor Randy Barnett of Boston University Law School, who argued for the side advancing the limitation on Congress’ regulatory power:

VICTORY IN 9th CIRCUIT MEDICAL CANNABIS CASE! JUST IN: I have just been informed that the Ninth Circuit has ruled for us in the Raich v. Ashcroft case I argued there last October. I am told the decision was 2-1 on Commerce Clause grounds. Judge Pregerson wrote the majority opinion, joined by Judge Paez, with a dissent from Judge Beam (of the 8th Circuit). I have not yet read the opinion but here is the link.

UPDATE: Having now read the opinions, I can report that the majority is a straight forward adoption of the Commerce Clause doctrine already adopted by the Ninth Circuit in US. v. McCoy and U.S. v. Stewart. Because the class of conduct at issue in this case–the cultivation and use of cannabis for medical purposes–is completely noneconomic, the aggregation principle of Wickard v. Filburn does not apply (as per the Supreme Court in U.S. v. Lopez and U.S. v. Morrison). There is no other jurisdictional “hook” in the Controlled Substances Act and the connection between the class of activities here and interstate commerce is too attenuated.

In dissent, as he was in oral argument, Judge Beam is overwhelmingly concerned with the similarities between this case and the facts of Wickard v. Filburn. I think he inadequately appreciates the gloss the Supreme Court in Lopez and Morrison placed on Wickard while upholding it. By Judge Beam’s reasoning there is nothing outside the Commerce Power (as so many judges thought was the case before Lopez and Morrison). Significantly, to reach his conclusion, Judge Beam had to claim that the 9th Circuit wrongly decided the recent case of U.S. v. Stewart (holding that making and possessing a home made machine gun was noncommercial, though parts were purchased in commerce). I should have thought that Stewart was decisioncase binding precedent in the 9th Circuit, in which Judge Beam was sitting for this case. But Judge Beam was clearly wedded to the expansive New Deal Court’s view of both Wickard and of the Commerce Clause that preceded Lopez and Morrison. In our case we did not challenge the viability of Wickard. We simply followed the Supreme Court in denying that it sanctions an virtually unlimited power under the Commerce Clause.

What’s next? The government must decide if it wants to petition for a writ of certiorari. Then we shall see if the Supreme Court grants its petition. In the mean time we have the first constitutional victory on behalf of users of medical cannabis.

It is supremely ironic that the Ninth Circuit is the court of appeals that is taking the Supreme Court’s new Commerce Clause jurisprudence the most seriously. This case illustrates that Federalism is not just for political conservatives, and is a doctrine that provides benefits across ideological lines. If this case does go to the Supreme Court we will learn whether the conservative Justices who developed this doctrine have the courage of their convictions when it applies to activities of which they may disapprove, and whether the liberal justices will put their disdain for Lopez and Morrison above the commitment to precedent which would let them do justice in this case.