Cert Granted in Raich v. Ashcroft

[Neil Cogan]

Hi, Randy.  My point is less a doctrinal point and more a practical one.
 Yes, importing drugs from Canada is commerce with foreign nations and
not among the states.  And yes, you argue that there is, in fact, no
commerce in Raich.  But if the Justices are considering the strength of
the national interest in drugs (what some are calling a drug exception),
the importation issue highlights what some assert is the significant
national interest in regulating the safe and informed use of
medications.  All best. N
>>> "Randy Barnett" <rbarnett at bu.edu> 06/28/04 12:00PM >>>
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)
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) 


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