The "High" Court - No Mr. Nice Guy

I couldn't help contributing to the litany of jokes that have been made on the occasion of the Supreme Court's recent medical marijuana case, Ashcroft v Raich. Linda Greenhouse gives the conventional account of the oral argument, presenting an amusing collision of the Rehnquist Court's latent conservative Commerce Clause revolution with the Republican Party's conservative War on Drugs. The 9th Circuit, again, faces reversal for ruling that the Controlled Substances Act is unconstitutional as enforced against those taking marijuana under California's Compassionate Use Act.

Cases like this one convince me that the 9th Circuit's record of frequent overturn by the Supreme Court isn't entirely due to their ideological incompatibility with the current Court. In cases like Raich, judges on the 9th circuit seem to take pleasure in tweaking ostensibly conservative high court doctrines, daring the Court to bite the bullet and accept the perverse (ie. sometimes liberal) consequences of the legal principles they create, or abandon them. Of course, ultimately the Justice Department is responsible for this case, so if the Court ends up killing its nascent limits on Commerce power, everyone can thank Ashcroft.

Anyway, Greenhouse's account of the oral argument is backed up for the most part by Dahlia Lithwick's reliably entertaining piece, filed last Monday. She briefly recounts the Lopez and Morrison cases that have promised so much to conservatives and the unpleasant choice faced by liberals and conservatives alike between a federalism jurisprudence that could severely limit Congress' ability to regulate, but give states the ability to be duped into allowing dopers to toke up with a doctor's note, and leaving Congress with the power to pursue the War on Drugs and a lot of other things conservatives don't like as much. The preliminary consensus reached by Court-watchers that even the conservative justices are willing to cripple the Lopez line for the sake of drug prohibition seems to be borne out by the oral argument, but most people anticipated that this is the way it would go before Monday, so I'm inclined to be circumspect.


Marci Hamilton, writing for Findlaw, offers another reading of the case and a possible alternative outcome. She suggests that Raich can be distinguished from Wickard, despite suggestions by Scalia (a necessary vote for the plaintiffs, so it seems) and Breyer that they're the same case. Hamilton's arguments are incoherent, however. First, the fact that a state law is at issue in Raich but not in Wickard would only matter if the reach of Congress' Commerce Clause power were subject to a reverse-preemption doctrine of sorts, whereby state regulation of an area, like the cultivation of marijuana, crowds out regulation by the central government, but there's no basis for that (see Gibbons v Ogden, 1824). Even in the limited-Commerce power context of the early 20th century, Congress' authority extended or failed to extend to an activity by light of its nature or the nature of its effect, rather than the presence or absence of coordinate state regulation. In fact, while the Court was enforcing strict limits on Congress' Commerce power it was also using the Due Process clause of the 14th Amendment to prevent regulation of many of the same activities by states. I'm not dead set against this kind of development, as I'll elaborate upon below, but so far there's no ground in Commerce Clause jurisprudence for such a direction. The only orthodox direction for reverse-preemption would be legislative, as in the McCarran-Ferguson Act, and this is what Acting Solicitor General Paul Clement suggests.

Her second and third points contradict each other, indicating that the impact of an intrastate medical marijuana should be negligible, then saying that the impact will be to decrease the interstate black market for marijuana, a speculative policy projection that the Court, as Hamilton seems to acknowledge, shouldn't be making. The justices also seem more inclined to accept the factual claims of the Justice Department regarding the impact of allowing medical marijuana cultivation, or so the oral argument suggests. Hamilton does not, interestingly, raise the claim Randy Barnett does for the plaintiffs, that marijuana cultivation is "non-economic" activity, which would put it in line with the Lopez and Morrison decisions. Even Hamilton, it seems, is not willing to contend that the cultivation and consumption of a substance that moves in a multi-billion dollar market internationally is not economic activity.

Hamilton's other points about the cross-cutting benefits of a robust federalism are well-taken, especially with Republican control of the presidency and Congress. Still, liberals have and should be wary of Court-enforced, categorical limits on congressional regulatory power, since the problems Madison raises in the Federalist in support of a larger Republic that can resist control by localized factions still obtain in an integrated, large scale national economy. Justice Brennan's scheme for liberal federalism, devised for judicial federalism, seems useful for regulatory federalism as well. Brennan's judicial federalism allowed for a baseline of protection for individual rights under the federal Constitution, but permitted independent development of state constitutional law to expand on those rights. The direction offered by Justice Breyer, "medicine by regulation" in his own words, might also be useful in this direction, if it allowed judges to "find" reverse-preemption grounds in statutes and provided courts a way to balance the factual conclusions of federal agencies against those undergirding state regulatory schemes like California's. Breyer's background favors Legal Process school thinking and administrative law solutions and can often be counted on for suggestions like this.

The focus on whether Raich can be distinguished from Wickard assumes that the Court isn't prepared to abandon or limit Wickard, although there's little evidence that they are. Thomas, I'm sure, is ready to go, but even Scalia doesn't seem inclined to revisit Wickard so that long-haired hippie freaks can get high in their communes and run wild in the streets. Like Lithwick, I think it's hilarious to think of the justices, who appear to have learned everything they know about marijuana from Reefer Madness, contemplating state-sanctioned weed usage. If only Douglas Ginsburg had gotten Kennedy's seat.

There's another option, however, unexamined by Hamilton or any of the other commentators I've read, and it would allow the justices to uphold the Controlled Substances Act without killing off any restrictions on the Commerce Clause. Despite his insistence, according to Lithwick, that Raich can't be distinguished from Wickard, Scalia offers a possible ground for doing so on the basis of a much more narrow ground than the nature of activity or size of impact categorical approach. His point that certain items, like ivory and eagle feathers, are subject to prohibition regardless of how they move through commerce due to the prohibitive nature of the market they contribute to could certainly be adapted to create a "drug war" exception. This wouldn't be the first time the Court has contorted general principles to permit government action in pursuit of drug prohibition.