[T]he Supreme Court is in a bind in Raich. Either the Court has to follow the Constitution and strike down federal drug regulation of intrastate noncommercial uses of marijuana (a controversial decision to follow the rule of law), or it has to expand Wickard radically, rendering the Commerce Clause almost (though not quite) a dead letter. Stated another way, the Court either has to expand its federalism jurisprudence slightly (eg, Lopez & Morrison, but in the controversial drug area), or it has to limit Lopez & Morrison to their facts by radically expanding federal power under the Commerce Clause. It can't stand still. Perhaps that is why the Court has been so slow to render an opinion.
Here's my theory on why the Court is taking so long with Raich. The Court is going to uphold the application of the Controlled Substances Act, even to the users of homegrown marijuana California wanted to accommodate. It really is not such a difficult question because Congress is trying to regulate a commodity down to the very smallest components of a market, including the home supplying of a product that would otherwise be bought on the market.
The Wickard case, which Lindgren would discount as "weakly reasoned," establishes this principle, albeit in the context of a farmer, and a farmer is engaged in a commercial enterprise, even if the wheat the government regulated never left his farm. Lopez and Morrison support drawing a line between commercial and noncommercial, however, and a homegrowing, home-user belongs on the noncommercial side of the line.
But if you take that route, how do you treat medicinal home-users differently from recreational home-users? You have to say medical home-users are not the sort of persons who would use the illegal market as a substitute for homegrowing, and that recreational users are. Considering all the people who have been punished for the possession of homegrown marijuana, I find it very difficult to accept a constitutional line drawn between these two motivations for using the drug.
The distinction is entirely based on a speculative theory about how people in different situations behave. Somehow medical users are the sort of people who would refrain from seeking out an illegal seller? They'd switch to a legal drug of some kind? Why? Why isn't it more likely that recreational users would limit themselves to homegrowing if it was completely legal, and would switch to a legal substance if they'd neglected to grow their own? Aren't medical patients more in need of the substance than recreational users? They are the ones with the special need for appetite stimulation. Recreational users can just substitute alcohol. And medical patients are more likely to have difficulty doing their own gardening and to require a different source.
(But it’s easy to grow marijuana, isn’t it? No one really needs to switch to buying, do they?)
I simply don't understand any distinction between medical and recreational users that is relevant to the constitutional point. (I realize medical patients are more sympathetic.) Both groups must be treated the same under the Constitution.
Assuming the Court has to find for the federal government in Raich, the reason it's taking so long -- I'm speculating -- is that it is very hard to explain the Wickard concept in a way that will satisfy the general public, which finds it so easy to sympathize with the suffering cancer patients on the other side. The Court is just hung up crafting and recrafting its labyrinthine legalisms into a form suitable for public consumption.
Alternatively, the Court may have decided to give up on its recent effort to limit the Commerce Power. Maybe the line drawing it undertook in Lopez and Morrison is not worth the trouble, and one member of the majority from those two cases is willing to join the Justices who would re-introduce the simplicity of completely deferring to Congress about what "substantially affects interstate commerce" and thus falls within the Commerce Power.
Or maybe the Court will put all homegrown marijuana outside of the reach of the federal government, and we can all start tending our own little marijuana plants on our windowsills. I wonder how many people who never consider buying illegal marijuana would happily pursue the option of growing their own. A lot, I think. It's hard to imagine how much America would change if the Court made that little move -- one that is quite justifiable as a matter of constitutional interpretation.
We’ll find out soon enough.
UPDATE: Just to clarify on a point brought up by a commenter. If federal law for homegrowing home users were held unconstitutional, there would still be the layers of state and local law to deal with. We'd get a chance to see what the states would do in this newly cleared field of regulation. Some might choose to ban all possession, some would legalize only the medical use, but I think some would permit recreational uses. It would be quite interesting to see the states, those laboratories of democracy, "experiment with drugs."
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