Cert Granted in Raich v. Ashcroft

[Randy Barnett]

In answer to Paul's question, I argued in the Ninth Circuit on behalf of
Diane Monson and Angel Raich and have been one of the principal lawyers
on their behalf since the inception of the case.  I am also one of the
principal attorney's in the U.S. v. Oakland Cannabis Buyer's Cooperative
case, and argued that case in the Ninth Circuit last September.  (Last
week OCBC was remanded to the district court for reconsideration in
light of the Raich decision whenever the Supreme Court completes its
review.)

Earl writes:  "Certainly, as a factual matter the situations are
different.  However, I don't think that the reasoning of the Wickard
Court depended upon this distinction."

The holding of Wickard concerns the aggregation principle.  The Court
then offered its reasoning in defense of adopting this principle.  In
Lopez, the majority opined that the aggregation principle had previously
been applied only to economic activities.  Without rehashing the opinion
in Wickard here, clearly Filburn's **enterprise**, of which his
intrastate production was a part, was economic in nature.  I reiterate
that even the New Deal Congress did not purport to reach very small
commercial farms, much less noncommercial home gardens.

I realize that some on this list have questioned the cogency of the
economic-noneconomic distinction adopted in Lopez--and I do not mean to
reopen that debate now.  My point was that the Court's acceptance of the
government's argument in Raich would be the effective repudiation of the
distinction and would therefore be a landmark limitation of Lopez and
Morrison.  And allowing Congress to reach a home garden for home
consumption would entail a considerable extension of Wickard, especially
in light of the gloss placed on Wickard by Lopez.  

As for Rick's question, the principle of Lopez and Morrison to which I
was referring was that there was an effective and judicially enforceable
limit to the Commerce Clause power.  If the government's reasoning is
accepted in Raich--whether motivated by the fact it is a drug case or
not--this principle will effectively be rejected, regardless of whatever
fig leaf the justices choose to distinguish Raich--and Lopez and
Morrison will then become the sport cases that some before Morrison
considered Lopez to be.  The era of Commerce Clause limits will be over.

Finally, in response to Neil's query, I see no immediate implication for
Raich of the drug reimportation cases, but I am simply not familiar with
the nuances of that litigation.  Off the top of my head--always a
dangerous place from which to speak--I would say that drug reimportation
involves commerce with foreign nations.  Raich involves neither that
type of commerce nor commerce among the several states.  It involves
activity that is not commerce in itself and is completely disconnected
from the interstate trade in illicit drugs.

_____________________________________________
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)
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http://www.RandyBarnett.com/SOL.htm (Structure of Liberty page)