Yesterday, the Supreme Court heard the oral arguments for the medicinal marijuana case Ashcroft v. Raich. You can read Larry Solum's detailed account (he was sitting in the court) of the arguments here and you can read about Angel Raich here. Basically, this is a question of whether the commerce clause gives congress power to regulate, and in effect make illegal, the personal use of medicinal marijuana. For those of you wondering how non-commercial marijuana that is prescribed, home-grown, and privately smoked in California can be deemed to affect interstate commerce, this is the key provision: The federal government can only reach non-economic activity if the state's authorization of that activity would undermine a broader scheme for the regulation of interstate commerce, this rational coming from Jones & Laughlin Steel and Wickard v. Filburn.
The Times doesn't seem too optimistic about the outcome, but people who probably know a little more seemed to be a little more optimistic. Solum says, "One can imagine this case coming out 5-4 either way. Before argument, I would have said it could be 9-0 either way, but if I allow myself the dangerous pleasure of reading the tea leaves, I now think that is unlikely." And Jim Linddren, from the Volokh Conspiracy, reiterates, "It's still a difficult case for the Court, but Randy's argument was strong enough that I now think the odds for his side are almost even."
This case will surely have serious consequences for medicinal marijuana, but it could also have serious implications for federalism in general if the Justices give it a broad ruling. We will not hear a ruling until July 2005; however, we can hope that the Justices continue their recent support of state's rights.
For the record, I really enjoyed how the government ended its argument:
Souter: If the Respondent's argument succeeds then we would have the question whether recreational use would be covered by our ruling. In deciding what the appropriate subclass might be, can't we take into account the health benefits of medical marijuana?
Clement: It would not be a good idea for the courts to second guess Congress.
UPDATE: Randy Barnett's thoughts, "I truly believe that there is no way to rule for the government without essentially limiting Lopez and Morrison to their facts. There will never be another successful Commerce Clause challenge to a federal statute in the Courts of Appeals if the Supreme Court accepts EITHER of the government's two theories: (1) that the activity here is really economic so that Lopez/Morrison does not apply or (2) an exception for regulations of noneconomic activities as part of a broader regulatory scheme that could be undercut unless they are reached applies to this state identified and policed class of activities." [emphasis in original