Cert Granted in Raich v. Ashcroft
Neil Cogan
ncogan at law.whittier.edu
Mon Jun 28 10:37:06 PDT 2004
Hi, Randy. How do you think the debate about importing lower-priced
drugs from Canada will affect the Court's decision-making? Best. N
>>> "Volokh, Eugene" <VOLOKH at law.ucla.edu> 06/28/04 10:18AM >>>
I'm still not sure I quite understand. If it's an exception that
has spilled over into other areas of the law, then (1) why doesn't
this
support Randy's argument, which is that voting against Raich would
undermine federalism constraints in many areas of the law (not just
drugs), and (2) why is it a drug exception, if it also applies to
nondrug crimes? Also, even if O'Connor was thinking of creating a
drug
exception -- and I'm not even sure about that -- how much support can
the drug exception theory get out of a noncontrolling one-Justice
opinion?
Eugene
-----Original Message-----
From: Paul Finkelman [mailto:paul-finkelman at utulsa.edu]
Sent: Monday, June 28, 2004 10:19 AM
To: Volokh, Eugene
Cc: conlawprof at lists.ucla.edu
Subject: Re: Cert Granted in Raich v. Ashcroft
Once the exception is created (and it is a de facto exception)
then it spills over into other areas of law,but the issues seems real
enough; O'Connon in Smith more or less says she is deciding this way
because it is a "drug case."
Volokh, Eugene wrote:
I've always been puzzled by the argument that
the Court is
creating a "drug exception," if that means an exception
that's limited
to drug crimes. The Smith majority clearly applies to
the Free Exercise
Clause more generally; even Justice O'Connor's
(one-Justice) concurrence
would have also applied, I suspect, more broadly than
just to drugs.
Some of the Fourth Amendment cases may have
been
*motivated* in
part by the War on Drugs, but again their reach is
considerably broader
than just drug crimes. Likewise for Harmelin v.
Michigan, even though
Justice Kennedy's concurrence stressed the harmfulness
of a particular
sort of drug crime. (And if the test of whether a case
involves a "drug
exception" is simply that a case is motivated by the
desire to let the
government win the war on drugs, even if its reach is
considerably
beyond drug crimes, then Randy Barnett's point -- which
is that a
government victory would have a very broad effect --
still remains.)
Eugene
-----Original Message-----
From: conlawprof-bounces at lists.ucla.edu
[mailto:conlawprof-bounces at lists.ucla.edu] On
Behalf Of Paul Finkelman
Sent: Monday, June 28, 2004 10:08 AM
To: Randy Barnett
Cc: conlawprof at lists.ucla.edu
Subject: Re: Cert Granted in Raich v. Ashcroft
Randy: I wonder if you can read so much into a
government victory;
isn't it possible that if the Government wins
it
is just one more
example of the "drug exception" to the
Constitution -- where
drugs are
concerned everything is ok? Sort of like
O'Connor's
concurring opinion
in Oregon v. Smith, or the many serch cases in
the 1990s? I know the
court does not want to actually that this is
going on, and so
it explain
why one case comes out one way and one another
in fine
lines. But, if
the govt. wins it may be a "drug exception"
case
just like
the Lottery
cases or Mann Act cases in the early part of
the
20th century did not
signal that the Court was actually moving away
from its
narrow views of
commerce and "loberty"; the same way in fact
that the court
could carve
out a "women's exception" in Muller v Oregon
but
not change its
jurisprudence.
Paul Finkelman
Randy Barnett wrote:
Cert. was granted today in Raich v.
Ashcroft. In Raich, the Ninth
Circuit held that the application of
the
Controlled Substance Act to
persons who cultivated their own
cannabis for medical use, or had
caregivers cultivate it for then at no
charge, was unconstitutional
because it exceeded the power of
Congress under the Commerce Clause.
Assuming a normal briefing schedule,
the
oral argument
should be some
time after mid-October.
Raich will represent the third great
Commerce Clause case in
15 years.
They seem to come in five year
intervals. Lopez in 1995, Morrison in
2000 and now Raich in 2005. A ruling
for
the government in
Raich would,
in my view, represent the effective
repudiation of Lopez and
Morrison,
for the government's reasoning would
allow Congress it to reach
whatever activity it chooses provided
that its statutory scheme was
sufficiently large enough. In other
words, by the
government's theory,
the more power that Congress claims,
the
more justified is
its claim of
power. Therefore, if the Court reaches
the merits, whatever
it decides
in Raich v. Ashcroft will be a landmark
decision with enormous
importance for the future of
federalism.
Full disclosure: I have been one of
the
principal attorneys in the
case since its inception.
_____________________________________________
Randy E. Barnett
Austin B. Fletcher Professor
Boston University School of Law
765 Commonwealth Ave.
Boston, MA 02215
617-353-3099 (phone)
617-353-3077 (fax)
http://www.RandyBarnett.com
http://www.LysanderSpooner.org
(Lysander
Spooner page)
http://pup.princeton.edu/titles/7648.html (Restoring the Lost
Constitution page)
http://www.RandyBarnett.com/SOL.htm (Structure of
Liberty page)
-----Original Message-----
From: conlawprof-bounces at lists.ucla.edu
[mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of
Marty Lederman
Sent: Monday, June 28, 2004 10:48 AM
To: conlawprof at lists.ucla.edu
Subject: Today's SCOTUS Decisions
Importance: High
The Court issued opinions today in the
following argued cases:
No. 02-1183, United States v. Patane,
per Justice Thomas,
reversed and
remanded.
No. No. 02-1371, Missouri v. Seibert,
per Justice Souter, affirmed
Nos. 03-334, Rasul v. Bush, and 03-343,
Al Odah v. United
States, per
Justice Stevens, reversed and remanded
No. 03-6696, Hamdi v. Rumsfeld, per
Justice O'Connor, reversed and
remanded
No. 03-1027, Rumsfeld v. Padilla, per
the Chief Justice,
reversed and
remanded
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--
Paul Finkelman
Chapman Distinguished Professor of Law
University of Tulsa College of Law
3120 East 4th Place
Tulsa, OK 74104-3189
918-631-3706 (office)
918-631-2194 (fax)
paul-finkelman at utulsa.edu
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To subscribe, unsubscribe, change options, or get
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--
Paul Finkelman
Chapman Distinguished Professor of Law
University of Tulsa College of Law
3120 East 4th Place
Tulsa, OK 74104-3189
918-631-3706 (office)
918-631-2194 (fax)
paul-finkelman at utulsa.edu
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