Monday, June 06, 2005

Raich handed down...

On a day like today, I long to be a Constitutional Law professor. If I taught ConLaw for a living today, it would actually be my job to spend time reading and analyzing today's Supreme Court decision in Gonzales (Ashcroft) v. Raich. Unfortunately, I'm not - I'm a lot of other things which prevent me from having the time to read all I want about Raich. So, it's going to be a late night...

The Supreme Court in a 6-3 opinion written by Justice Stevens, held that the federal government does have the power to prosecute cases of growth and possession of medical marijuana, even if the state involved has legalized the use of medical marijuana with a doctor's recommendation. The majority (including J. Stevens, Ginsburg, Breyer, Souter, Kennedy, and Scalia in a concurrance [arguing the necessary and proper clause governed) held that the criminalization of medical marijuana by the federal government is okayed by the Commerce Clause power as interpreted in Wickard v. Filburn (1942) - which held that the federal government had the power to regulated activities which are local and not generally "commerce" if, "it exerts a substantial economic effect on interstate commerce, and this irrespective of whether such effect is what might at some earlier time have been described as 'direct' or 'indirect.'" Wickard gave the federal government the power to reach out to "local" activity, if that activity in any way would exert a substantial effect on interstate commerce. Obviously, this is a very broad reading of the Commerce Clause. Raich upheld that reading as the proper Constitutional interpretation.

The dissent (written by J. O'Connor, joined by C.J. Rehnquist and J. Thomas, with a separate dissent by J. Thomas) essentially held that states should be allowed to govern this area themselves because the activity in question (growth and possession of marijuana for state-authorized medical use) was not included in the interstate Commerce Clause.

As I previously noted in this post, due to this federalism question v. the authorization of the use of illegal drugs. In fact, J. O'Connor noted in her dissent that as a voter or legislator she would not support such authorization of the use of medical marijuana...but that regardless, States should be allowed to experiment in such areas free of federal control. As I noted in that post, this case held a particularly difficult choice for the Court: generally a conservative would oppose the legalization of marijuana, but would also oppose the federal government's extension of power over the State governments. Generally a liberal would be more accomodating to the legalization of drugs, but would support the federal government's extension of the Commerce Clause.

As it turned out, as expected, the federalism issue carried the day. The only justice that seemed to be swayed by the facts was potentially J. Scalia - the necessary and proper argument seemed a potential stretch.

Needless to say these are long opinions and there is a lot of analysis out there already...little of which I've been able to read at this point...but I'll be getting to it. For now, here is a starter list of initial readings...
First off, SCOTUSblog is doing a MASSIVE group meta-blog on Raich. Frankly, there is so much there - after only 12 hours - that it would not be adviseable to link to each post - so here is the current latest, and you can use this to get to the others - Raich and Liberty.

Similarly, the Volokh Consipiracy has a LOT, but it's all linked pretty well, so here is The Rehnquist Court and the Mathematics of Federalism.

Prof. Balkin has Court decides Gonzales v. Raich.

CNN story here.
AP report here.

That's a start...lots of reading!

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