Balkinization: A Thought Experiment about Raich v. Ashcroft

A Thought Experiment about Raich v. Ashcroft

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.

Posted 1:02 PM by JB [link]

Comments:

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?

# posted by

bigmouth : 5:39 PM

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.

# posted by

Joe : 8:12 PM

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?

# posted by

M. Simon : 2:16 PM

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

here and here.and here.

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

# posted by

M. Simon : 2:28 PM

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

Link one space filler yyyyyyyyy

Link two space filler yyyyyyyyy

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# posted by

M. Simon : 2:40 PM

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.

# posted by

M. Simon : 2:46 PM

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Unknown : 10:48 AM