Tuesday, April 26, 2005

Which Way Will They Go?

SCOTUS Blog gives links to today's Supreme Court opinions, and, more importantly, alerts us to the opinions still to come. This was the part that intrigued me though:
From the December sitting, four opinions are outstanding: three from important constitutional cases -- Ashcroft v. Raich (which was actually argued on November 29th, technically at the beginning of the "December" sitting), Granholm v. Heald, and Veneman v. Livestock Marketing -- as well as Miller-El v. Dretke (also important, but not technically a constitutional case). Of those four opinions, Justices Stevens, Kennedy, and Souter are likely writing at least one majority apiece, and Justice O'Connor almost certainly is not writing a majority.

Two of those three are most certainly in the liberal camp (and with what the rightwingers are saying about Kennedy, maybe he's now considered one of ours too). Now, I know nothing of Granholm, Veneman, and Miller-El, but Raich is something I have expressed thoughts on. For those of you who don't know, Raich is a Medical Marijuana case which deals with whether or not California's medical marijuana plan sufficiently implicates inter-state commerce such that it can be regulated (read: superceded) by the federal governments anti-drug statutory scheme. What makes this case particularly interesting is that it represents a conflux of liberal means to conservative ends. That is, if one accepts that there is a broad congressional power to regulate interstate commerce (as most liberals do), then one would be inclined to permit Washington's overriding of California's medical marijuana plan (a conservative outcome). Conversely, if one takes a narrow view of the ISC clause (as conservatives do), then Washington's efforts become more suspect and the marijuana plan might be saved (a liberal position). There might be some mighty fine hair-splitting in the opinions for this case.

Perhaps it is that difficulty which has caused the long delay in hearing from Raich (link: Randy Barnett, who represented Raich in the case).


Anonymous said...

Actually, the question is not whether the federal government's scheme can regulate California's medical marijuana laws, but whether the federal government has the power, through the Commerce Clause, to regulate the activities undertaken by Raich and Monson (the parties opposing the government). California's medical marijuana laws are merely part of the argument why the mere possession of pot in this case does not "affect" interstate commerce. The case is not about the preemption doctrine.

David Schraub said...

That's what I meant to say. I apologize if it seemed I was talking about the pre-emption doctrine, the rhetoric of "superceding" I used was merely to point out that if the federal government's interpretation was accepted, then California's law would immediately become irrelevant. This is indeed not a case where federal and state laws are playing on precisely the same "territory," so to speak.

Thanks for clarifying that for any readers who may have been confused.