Victory for Medical Cannabis (& the Commerce Clause)

[Ann Althouse]

It's not just that the animals fed the wheat were sold in Wickard, it's that
the wheat held in reserve could enter the market and was an alternative to
obtaining supplies from the market. Here's the passage from Wickard Lopez
cites in distinguishing the GFSZA:

> ³One of the primary purposes of the Act in question was to increase the market
> price of wheat and to that end to limit the volume thereof that could affect
> the market. It can hardly be denied that a factor of such volume and
> variability as home-consumed wheat would have a substantial influence on price
> and market conditions. This may arise because being in marketable condition
> such wheat overhangs the market and, if induced by rising prices, tends to
> flow into the market and check price increases. But if we assume that it is
> never marketed, it supplies a need of the man who grew it which would
> otherwise be reflected by purchases in the open market. Home-grown wheat in
> this sense competes with wheat in commerce.² 317 U.S. at 128.

And this is the way Wickard is distinguished in Lopez:

> ³Section 922(q) is a criminal statute that by its terms has nothing to do with
> ³commerce² or any sort of economic enterprise, however broadly one might
> define those terms. Section 922(q) is not an essential part of a larger
> regulation of economic activity, in which the regulatory scheme could be
> undercut unless the intrastate activity were regulated. It cannot, therefore,
> be sustained under our cases upholding regulations of activities that arise
> out of or are connected with a commercial transaction, which viewed in the
> aggregate, substantially affects interstate commerce.²
> 
So I still think there is quite a good argument for the proposition that
home-grown, home-used marijuana fits the commerce clause as Lopez (and
Morrison) defined it. I think other home-processed, home-used drugs would
also fit this description. They ³overhang the market,² and the law is aimed
at controlling the market. I think the case law easily justifies allowing
Congress to make laws that are specifically about controlling a market (as
opposed to reaching into some area that can be segmented off and subjected
to localized preferences, like how to treat acts of violence that are not
connected up into any sort of network or market).

I do agree that an alternative way to think about Wickard is that the farmer
was himself engaged in a business, a commercial enterprise. I¹d say that is
not the better way to think about the scope of congressional powers, in
terms of workable federalism.

Ann

"Lawrence Solum" <lsolum at sandiego.edu> wrote:

> Ed Richards writes:
> 
>> Claiming that homegrown is outside of the market would lead
>> to the absurd result that congress would not have the power to regulate
>> the manufacture of any illegal drugs because they were not part of the
>> legitimate medical market.
> 
> This simply doesn't follow.  The Raich plaintiffs did not argue that marijuana
> was outside the commerce power because it was illegitimate--legality or
> illegality played absolutely no role in either the briefs or the opinion.
> Their argument was that it was not "economic" in the sense that term was given
> by the Supreme Court in Lopez & Morrison.  The homegrown medical cannabis at
> issue in Raich was not "economic," because it was not sold or bartered.  Of
> course, homegrown marijuana is "economic" in the econmist's sense, but in that
> sense, so were the activities in Lopez & Morrison.  The wheat in Wickard is
> distinguishable because that wheat was fed to livestock which were then sold--
> making the wheat part of an economic activity.
> 

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