what will Supremes do re medical marijuana?

Tue Nov 30 11:49:46 PST 2004

How about this attempt to play devil's (or angel's) advocate:
	The statute in Wickard was intended to regulate the price and
distribution of a marketable commodity, thus any transaction (even one
without consideration) undermined Congress' commercial policy. However, both
the gun control law at issue in Morrison and the drug control law at issue
in this case are intended to prevent use of a class of items, not to control
the market price of those items or to ensure proper distribution of the
items through the market system.  
	In such non-commercial transactions, Congress may only control a
person's behavior regarding some specific item within the regulated class
when the person's specific behavior or the specific item used has a nexus to
interstate commerce.  Even if Congress has the right to make absence of the
nexus an affirmative defense, the drug users in this case have proven that
affirmative defense.
	Relatedly, the  Constitution does not give Congress either national
police power or national power over local medical care. 

Malla Pollack
Visiting Associate Professor 
Univ. of Idaho, College of Law
mpollack at uidaho.edu
208-885-2017 [please note change]

-----Original Message-----
From: conlawprof-bounces at lists.ucla.edu
[mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Earl Maltz
Sent: Tuesday, November 30, 2004 11:28 AM
To: lsolum at sandiego.edu
Cc: conlawprof at lists.ucla.edu
Subject: Re: what will Supremes do re medical marijuana?

I was obviously not clear.  I think the Court will rely on the 
economic/noneconomic activity dichotomy in the following way:

Wickard tells us that Congress can regulate the acquisition  of  products 
that are often/generally distributed through interstate economic 
transactions, even if the specific mode of acquisition is not an economic 
transaction and is not interstate.  Marijuana (like bread) is a product 
that is generally distributed through an economic transaction that often 
involves interstate shipment.  Darby tells us that if Congress can prohibit 
use as an incident of its power to regulate shipment in interstate 
commerce.  Therefore, Congress can prohibit the use of marijuana.

It is this class of cases that is distinguished in Morrison.

At 10:18 AM 11/30/2004 -0800, Larry Solum wrote:
>Earl's reading of Wickard (as interpreted by Morrison and Lopez) is
>plausible, but Guns are "clearly an article of commerce" as well.  As
>I understand Earl's argument, it gives no role to the
>economic/noneconomic distinction, which does seem to be the key to the
>Morrison/Lopez recharacterization of Wickard.  I am curious as to
>which passage in Morrison Earl has in mind when he says the court went
>of its way.
>
>
>On Tue, 30 Nov 2004 12:38:54 -0500, Earl Maltz
><emaltz at camden.rutgers.edu> wrote:
> > Distinguishing Wickard on the facts is not the point; as written, the
case
> > does not rely on the commercial nature of the specific farm at all.
Since
> > marijuana generally is clearly an article of commerce, the principles
> > enunciated in Wickard and Darby clearly would control.  Moreover, the
> > majority opinion in Morrison went out of its way to distinguish those
types
> > of cases.
> >
> > I wouldn't be surprised if the Ninth Circuit is reversed unanimously;
> > instead, I'd be surprised if Raich got more than two votes.
> >
> >
> >
> > At 11:39 AM 11/30/2004 -0500, you wrote:
> > >I think Barnett's brief did a fantastic job of distinguishing Wickard,
> > >though Scalia either wasn't persuaded or didn't read the brief closely.
In
> > >short, as I recall, Wickard has been portrayed through the years as a
case
> > >involving someone growing wheat on his own land for family consumption,
> > >but it actually involved a rather large commercial farm that sold much
of
> > >the wheat, and the family consumption involved included using the wheat
as
> > >feed for many farm animals. In other words, if Wickard had come out the
> > >other way, it might very well have truly undermined the federal
> > >government's ability to control wheat production and prices, while
> > >preventing sick individuals from getting marijuana via a doctor's
> > >prescription would be unlikely to undermine marijuana prohibition.
> > >
> > >Also, Greenhouse's piece seems tendentious to me.  She relies on
skeptical
> > >questions from Souter, Breyer,  Kennedy, and Scalia to suggest that the
> > >case is hopeless.  But no one expected Souter or Breyer to vote to
limit
> > >federal power, and Scalia said he "used to laugh at Wickard," so maybe
> > >he'll vote to overturn Wickard.  O'Connor seemed sympathetic to
Barnett,
> > >and Thomas is likely to be.  Kennedy is more troubling, but who knows
what
> > >Rehnquist will do, and there is always the Stevens (and maybe even
Souter
> > >and Kennedy) wildcard on the substantive due process issue.  Odds are a
> > >bit long, but not as bad as Greenhouse made out.
> > >
> > >In a message dated 11/30/2004 11:26:10 AM Eastern Standard Time,
> > >lweinberg at mail.law.utexas.edu writes:
> > >I haven't been following the medical marijuana case, but from Linda
> > >Greenhouse in this morning's times I glean that the women using and
> > >possessing medical marijuana (gift and home grown) were arguing Lopez,
and
> > >the U.S. was arguing
> > >Wickard v. Filburn.  But these arguments sort of slide past each other
and
> > >don't decide much.  To the extent they collide, my gut reaction is to
save
> > >the Wheat Case and dump Lopez, but on the facts my gut reaction is to
let
> > >the plaintiffs have their medical marijuana.  Who wants to strip
Congress
> > >of any more power?  But who wants these women to die with unnecessary
> > >pain?  And if there is simply an exception to preemption for a case
like
> > >this, why wouldn't that overrule Lopez?  What will the Court do?  And
dare
> > >they go with another let-stand after the same-sex marriage let-stand?
(In
> > >the marijuana case below, the patients got a federal injunction against
> > >enforcement of federal law and the 9th Circuit affirmed.)
> > >Louise
> > >
> > >_______________________________________________
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>
>--
>Lawrence Solum
>University of San Diego School of Law
>lsolum at sandiego.edu
>(619) 260-8876
>http://home.sandiego.edu/~lsolum/

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