Balkinization  

Wednesday, December 01, 2004

A Thought Experiment about Raich v. Ashcroft

JB

As I understand Randy Barnett's argument in Raich, it is that the cultivation and possession of marijuana “solely for the personal medical use of seriously ill individuals, as recommended by their physician and authorized by State law” is beyond the reach of the federal commerce power. For the purposes of this posting, I will accept that Randy's argument is correct, and that you can carve out classes like this for as-applied challenges to Congress's Commerce Clause power. I note that much of the force of the argument seems to turn on the fact that the carve-out of the class is not wholly arbitrary, but rather tracks California state law.

What then, of a statute that regulates the ability of doctors to prescribe Schedule I substances for their patients for medical treatment? Why wouldn't such a law, making it a crime for doctors to prescribe marijuana, be well within Congress's commerce powers? After all, the practice of medicine is a business, and therefore is economic activity. And there is no problem cumulating effects if the activity is economic in nature.

If Congress may make it a crime for doctors to prescribe marijuana for medical use, then it would, in effect, preempt California's law allowing cultivation of marijuana for personal use when recommended by a licensed physician, because no doctor could legally recommend the use of marijuana for a patient.

If that is so, then Raich's as-applied challenge to the commerce power would fall apart.

Thus, if Congress wishes to prevent the use of medical marijuana, it need only pass a law prohibiting doctors from prescribing marijuana. If that is so, the question becomes whether it is a good idea to require Congress to pass a new law each time a very smart lawyer comes up with a way to pose an as-applied challenge to a broad Congressional statute.

On this question, I am agnostic. On the one hand, it does make Congress go through lots of hoops to regulate what is already within its regulatory power. On the other hand, perhaps there is some legal process reason-- like a clear statement rule-- to require Congress to respond to each challenge to its authority, because in the long run, this will lead to less regulation. Of course, the effect of such a clear statement rule might be more federal statutes, regulating more features of everyday life, not fewer. Whether this is a good result I leave up to you to decide.


Comments:

Presumably this is why Barnett pushed for a decision that cultivating and consuming one's own plants is simply not economic activity. Of course, he may not get it, but it seems likely that a compromise decision would not be the last word.
 

Don't we have a free speech issue here? The federal government may regulate "prescribing" in a formal sense, but can it regulate "recommending" merely because California chooses to give recommendations legal effect? Suppose California did not require that a physician prescribe or recommend marijuana for a patient to be able to use it, but rather required that a patient possess a statement signed by a physician that the patient suffers from one or more particular ailments and has not benefitted from specified other drugs. The patient's medical chart will have this information independently of whether the physician thinks that the patient would benefit from marijuana. As an aside, I believe that it is disgusting for the federal government to lie about the medical benefits of marijuana, and for the Court to hold a debate about the reach of the Commerce Clause when a woman's life is at stake.
 

Henry, the Free Speech concern you raise was raised by Judge Kozinski in his concurring opinion in the Ninth Circuit's Raich decision. Indeed, he argued that the federal government's CURRENT application of its drug laws to patients possessing marijuana pursuant to physician prescriptions authorized under California law violate the First Amendment. No doubt that Judge Kozinski (who is a very clever man) anticipated the congressional reaction that Prof. Balkin raises here.
 

The U.S. Court of Appeals for the Ninth Circuit actually held, in 2002, that the federal government violated the First Amendment by threatening to withdraw physicians' right to prescribe controlled substances if they recommended that their patients use marijuana. (Indeed, the federal government was enjoined even from investigating such physician recommendations.) IMHO, the decision, Conant v. Walters, 309 F.3d 629 (2002), which can be found here: http://caselaw.lp.findlaw.com/data2/circs/9th/0017222p.pdf, is ridiculous (which might be fitting in light of the fact that the federal policy was uncommonly silly). Why shouldn't the government be able to deny doctors the right to prescribe drugs if, in the government's view, the doctor is advising patients to act in a way that is dangerous to their health? [Disclosure: While at DOJ, I worked on both McCaffrey and Raich.] The SCOTUS denied cert. in McCaffrey, 540 U.S. 946 (2003).
 

Given the arguments Barnett makes in Restoring the Lost Constitution, I would expect an argument that the prescription is not commerce because it is neither manufacture nor trade (of goods). But it would be miraculous for the Court to accept that line.
 

Why not a law requiring federal licensing of physicians (or lawyers) on the same logic? I'm sure Randy would say such a law would run afoul of the commerce clause.
 

If this is so, then California could just as easily make an end run around the new federal statute by removing the physician recommendation requirement. Why would Congress even bother?
 

The free speech/recommendation issue is a separate case, not Raich, as noted by another comment.

Balkin's discussion, as suggested by a few comments, somewhat misses the point. Barnett refers to "interstate commerce" not "commerce" alone. And, the drugs here were argued not to "affect interstate commerce." See Mark Kleiman's blog for the lack of economic effect.

And, prescriptions and doctors are involved already. I don't see how Balkin's scenario changes much.
 

The proposed statute would not reach the physician activities that California law authorizes. California law uses the word "recommendation" for a reason -- federal law already regulates the *prescription* of any controlled substance. 21 U.S.C. 802 defines "dispense" to include "prescribe," and 21 U.S.C. s 822(a)(2) requires anyone who "dispenses" or "proposes to dispense, any controlled substance" to register with the DEA. Using the word "recommendation" (or "recommend"; I can't recall which word the California laws use) effectively makes an end run around the federal regulation of prescriptions.

Now, if the federal government tried to regulate "recommendations," it would seem to run into the Conant free speech problem identified by some of the others who have posted comments. Moreover, regulating a mere "recommendation" -- which has no legal effect under federal law -- might run into a Commerce Clause problem very similar to the one in Ashcroft v. Raich. Physicians who "recommend" the use of home-grown marijuana aren't linked to interstate commerce any more than are the Respondents in Raich.

One response is that the medical profession is a business, but surely Congress can't use its Commerce Clause power to regulate doctors -- who are traditionally regulated by the states -- any more than it can use that power to regulate other state-regulated professions, such as teachers in local schools and lawyers who practice exclusively in state courts.
 

Wouldn't it be wise to go back and review how the theory of expanding the application of the commerce clause came about?

i.e. FDRs threat to pack the court.

If we go back to how the Commerce clause was originally interpreted lawyers will be carving out vast swaths of Federal Law. I do not see why sticking to the Constitution as written is a bad thing. Unless you are a fan of unchecked Federal Power.

The original purpose of the commerce clause was to enhance liberty. i.e. facilitate commerce. It is now being used to pervert that intent.

Do you think that is a good idea?
 

Marty,

What if chronic drug use is caused by chronic pain that is currently unrecognized medically?

It has happened before.

Under those circumstances and the theory of personal liberty shouldn't the government defer to the individual?

I have way more to say here with links to some recent research showing chronic drug use (what we currently call "addiction") is linked to PTSD.

Science: Endocannabinoids extinguish bad memories in the brain.I discuss that and more with links to the research

hereand here.and here.

The research is starting to show that "addiction" is a fiction. People chronically use drugs to relieve chronic pain.
 

Let me see if I can make the links a little easier to use.

Link one space filler yyyyyyyyy

Link two space filler yyyyyyyyy

Link three space filler yyyyyyyyy
 

BTW the most common cause of PTSD in America is child abuse.

If we really want to solve the drug problem we must deal with the child abuse problem.

Of course that gets you into issues of parental autonomy.

I do not think we need more laws. More information might be good.
 

Regarding the claim that the (hypothetical) law would violate free speech:

Isn't this a verbal act that falls outside purview of free speech? Where California by statute (hypothetically) permits dispensation and possession of schedule I drugs upon issuance of a formal written statement by a physician, doesn't the physician's formal written statement have the status of a verbal act, tantamount to a license? Looked at this way, the federal law would be prohibiting conduct, not speech. By way of analogy, federal law regulates disclosure of medical records, viewing disclosure as conduct rather than speech.
 

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