Victory for Medical Cannabis (& the Commerce Clause)
althouse at wisc.edu
Fri Jan 2 10:57:34 PST 2004
It seems key in Lopez that Congress was not in the GFSZA in any way trying
to control the market in guns; there was no aim to stabilize prices or to
ban a harmful product. The idea of the statute was to deal with violence in
schools. That violence is not linked up into a national network of any kind.
Different schools can deal with different violence problems in different
ways, in accord with local preferences; one locality's preference would not
interfere with another's. That is why it worked to validate disuniformity
there in a way that it does not work where there is a market being
I think that is a judicial rule, but it is very accommodating to Congress:
Congress can regulate the whole market and the idea of a market is broadly
defined. Neither Lopez nor Morrison are examples of narrowing the idea of
market as a way of hemming in Congress and leaving something for the states.
Where Congress is trying to control a market, I don't see why much of a
showing needs to be made that every last bit of the market ought to be
including in the regulation.
"Lawrence Solum" <lsolum at sandiego.edu> wrote:
> As usual, interpretations depend on assumptions. I read the passage that Ann
> cites as fairly decisive evidence against her position.
> Here is the key sentence:
>>> 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.
> On one interpretation this passage would actually validate the regulation in
> Lopez--one could argue that it is part of a larger regulatory scheme that does
> regulate an economic activity--the manufacture, distribution, and use of
> guns. This could not be what the court meant.
> So it is crucial to ask what is the class of activity that is regulated. And
> there is a prior question, "Who determines the scope of the class, Congress
> (in the statute) or the courts?" The Ninth Circuit's position in Raich is
> that the Courts determine the class & this is consistent with the Supreme
> Court's treatment of the issue in Wickard.
> The Ninth Circuit defines the relevant class of activity in Raich as
> noneconomic, intrastate medical cannabis. (Noneconomic in the Lopez sense &
> not the economists' sense.) If the class were defined more broadly, as all
> cannabis growth & distribution, then this would be an easy case for the
> upholding the statute. The government's position was that the only relevant
> class was the class defined by the statute, i.e everything (not just cannabis,
> not just intrastate, not just economic) reached by the CSA.
> In the procedural posture in Raich, there was no evidence that the regulation
> of this class of activity is "an essential part of a larger scheme." That is,
> there was no evidence presented by the government or findings by Congress that
> putting intrastate noneconomic medical cannabis would undermine that
> Controlled Substances Act.
> So the passage Ann cites seems to me to be entirely consistent with the
> decision in Raich. Unless one treats the class definition issue differently,
> the passage does not easily support the government's position.
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