Up In Smoke

Here is the full SCOTUS opinion in Gonzalez v. Raich in which the Court upheld the authority of Congress under the Commerce Clause to prohibit the local cultivation and use of "medical marijuana" as permitted by California law. Don't worry about reading the full opinion, we have an edited version in our casebook supplement.

Here is the oral argument transcript.

Here is an article that suggests that as a result of the case it is federalism that has gone up in smoke. Here is an article written by Pl's counsel, Randy Barnett, and here is an interesting excerpt:

It comes as no surprise that I admire Justice Thomas's opinion. His opinion now establishes that there are not two principled originalist justices on the Court today, but one. To me, this means that when it comes to enumerated federal powers, there is only one justice who is clearly willing to put the mandate of the Constitution above his or her own views of either policy or what would make a better constitution than the one enacted.

And here is an interesting post from the Volokh blog:

Raich and Prosecutorial Discretion: Bloomberg has an interesting story about the consequences (or lack thereof) of yesterday's Raich decision:

Federal law enforcement officials in San Francisco said they don't intend to crack down on medical pot users, who under California state law are allowed to buy and smoke marijuana with a doctor's permission. About 40 marijuana clubs in the city, which operate without interference from local police, are likely to continue in the wake of the Supreme Court decision that federal drug laws ban use of medical pot. "We respect the state law," said Javier Pena, special agency in charge at the San Francisco office of the U.S. Drug Enforcement Agency. "I can't tell you we are going to shut down all those clubs tomorrow. Our efforts will remain targeted at the trafficking organizations. We've never targeted the user, the sick people, the dying people." The DEA in San Francisco has shut down two of the city's pot clubs and arrested two people in connection with club operations in the last two years, said Casey McEnry, an agency spokeswoman. . . . California Attorney General Bill Lockyer said the U.S. has always been able to prosecute medical marijuana users for violating federal drug laws and has rarely done so. "This doesn't represent a big change for the potential for federal enforcement," Lockyer said in a telephone interview. "Our medical marijuana users were always exposed to the possibility of federal prosecution; there haven't been that many."

This is an important point, I think. The idea of the federal government going after very ill people who are growing marijuana for medical purposes strikes many (including me) as an obvious misuse of power, if not an outrageous one. But the reality is that prosecutions, while not nonexistent, are rare. Giving the feds the power to bring cases doesn't mean that they actually will, and history suggests that they usually don't. As a result, Raich doesn't mean the difference between a world with home-grown medical marijuana for the very ill and a world without it. Rather, it means a world in which home-grown medical marijuana is advertised and public versus a world in which the practice is more quiet and the feds mostly look the other way.

And here is an interesting post from Lyle Denniston over at the SCOTUS blog:

Monday, June 06, 2005

Commentary: Justice Kennedy and the "war on drugs"

Posted by Lyle Denniston at 08:30 PM
Justice Anthony M. Kennedy's role in Monday's 6-3 decision in Gonzales v. Raich, upholding sweeping power for Congress to criminalize even personal, medical use of marijuana, may be baffling from the perspective of his accustomed role in supporting state power against overreaching congressional legislation. But there is perhaps a different, and simpler, explanation for his vote with the majority (his silent vote, as Ann Althouse points out in her post below). Kennedy, it has been clear for some time, has little tolerance, judicial or otherwise, for those who are users of drugs, or who resist drug control measures.

Three fairly recent examples suggest that the Justice has a zero-tolerance point of view.

Two are other "silent" votes he has cast: joining the opinion written by Justice Clarence Thomas in U.S. v. Oakland Cannabis Buyers' Cooperative, decided May 14, 2001, finding no medical necessity exception to the Controlled Substances Act, and joining Thomas' 6-3 opinion in Board of Education of Independent School District No. 92 of Pottawatomie County v. Earls, decided June 27, 2002, upholding the most sweeping drug-testing policy yet to come before the Court -- a testing requirement for any public school student seeking to take part in any extracurricular activity, the near-equivalent of a universal testing policy.

The third example is perhaps the most telling: when the Earls case came before the Court, there was evidence that the young woman who challenged the policy, Lindsay Earls, had never used drugs herself. But that did not deter Kennedy at the oral argument on March 19, 2002. Turning red, he told Ms. Earls' attorney: "No parent would send their child to a 'druggie' school, except perhaps your client." He likened a drug test to a rule requiring students to wear a school uniform. With evident sarcasm, he also remarked: "It is hardly a revelation that the government is concerned about drugs among our youth. This is not exactly rocket science."
Perhaps there are some sacrifices of federalism doctrine the Justice is willing to make, as he may have done on Monday.