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.