Gonzales v. Raich – Oral Argument – November 29, 2004

Media for Gonzales v. Raich

Audio Transcription for Opinion Announcement – June 06, 2005 in Gonzales v. Raich

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John Paul Stevens:

We will now hear argument in Ashcroft against Raich.

General Clement.

Paul D. Clement:

Justice Stevens, and may it please the Court:

Through the Controlled Substances Act, Congress has comprehensively regulated the national market in drugs with the potential for abuse.

And with respect to Schedule I substances, like marijuana, that have both a high potential for abuse and no currently accepted medical use in treatment, Congress categorically prohibits interstate trafficking outside the narrow and carefully controlled confines of federally approved research programs.

Sandra Day O’Connor:

Well, Mr. Clement, the… I think it is reasonably clear that Congress spoke very broadly in the Act, and the question, for me, turns on whether Lopez and Morrison dictate some concerns with its application in this context.

Paul D. Clement:

Well, with respect, Justice O’Connor, I don’t think either Lopez or Morrison casts any doubt on the constitutionality of the Controlled Substances Act, and I think, in particular, that’s because the decisions in Lopez and Morrison cited, with approval, cases like Darby and Wickard, and preserved those cases.

And, of course, the concurring opinion of Justice Kennedy did so, as well.

Sandra Day O’Connor:

Well, but in Wickard, of course, you had a wheat grower, a small farmer, and his wheat did, in part, go in the national market.

You don’t have that here.

As I understand it, if California’s law applies, then none of this home-grown or medical-use marijuana will be on any interstate market.

And it is in the area of something traditionally regulated by states.

So how do you distinguish Morrison?

And how do you distinguish Lopez?

Paul D. Clement:

Well, Justice O’Connor, let me first say that I think it might be a bit optimistic to think that none of the marijuana that’s produced consistent with California law would be diverted into the national market for marijuana.

And, of course, the Controlled Substances Act is concerned, at almost every step of the Act, with a concern about diversion, both of lawful substances from medical to non-medical uses and from controlled substances under Schedule I into the national market.

Sandra Day O’Connor:

Well, in looking at this broad challenge, do we have to assume that the State of California will enforce its law?

I mean, if it turns out that it isn’t and that marijuana is getting in the interstate market, that might be a different thing.

Paul D. Clement:

Well, with respect, Justice O’Connor, on this record, I don’t think that there’s any reason to assume that California is going to have some sort of almost unnatural ability to keep one part of a fungible national drug market separate.

And I think Congress, here, made important findings that you’ve alluded to, not just that there’s a national market, not just that the intrastate and the interstate markets are linked, but that drugs are fungible, and that because drugs are fungible, it’s simply not feasible, in Congress’ words, to regulate and separately focus on only drugs that have traveled on interstate commerce.

John Paul Stevens:

Well, General Clement, what if we were to assume… I’m not saying this is… that the District Court could find that there is a narrow segment of the market in which they could prevent diversions, and they had… say they made such findings.

Would we have to disregard them, or say they were irrelevant?

Paul D. Clement:

I think you would say they were relevant, Justice Stevens, and that’s because–

John Paul Stevens:

But then why do you need to rely on the possibility of diversion?

Paul D. Clement:

–Well, because I think it is a reality, in responding to Justice O’Connor’s question… I think that in… obviously, in all of these commerce–

John Paul Stevens:

Yeah, but in my hypothesis, it’s a nonexistent reality.

Paul D. Clement:

–Well, in your hypothetical… and if I could turn to that… I still think the analysis would not turn on whether or not the truth of the supposition that diversion could be prevented, because this Court, in a series of cases, including Darby, Wickard, Wirtz, and Perez, has made clear that the relevant focal point for analysis is not the individual plaintiff’s activities and whether they have a substantial effect on interstate commerce, but whether the class of activities that Congress has decided to regulate has such a substantial effect.

And, in this case, there’s no question that the overall production, distribution, and possession of marijuana and other Schedule I substances has a profound effect on interstate commerce.

Antonin Scalia:

But it’s not an interstate commerce that you want to foster.

I mean, in these other… in these other cases, Congress presumably wanted to foster interstate commerce in wheat, in Wickard v. Filburn.

Antonin Scalia:

Congress doesn’t want interstate commerce in marijuana.

And it seems rather ironic to appeal to the fact that home-grown marijuana would reduce the interstate commerce that you don’t want to occur in order to regulate it.

I mean, you know, doesn’t that strike you as strange?

Paul D. Clement:

Well, no, it doesn’t, Justice Scalia, but let me respond in two ways.

First of all, I think it’s been clear, at least since the lottery case, that Congress’ authority to regulate interstate commerce includes the authority to prohibit items traveling in interstate commerce and to declare something contraband in interstate commerce.

Antonin Scalia:

Absolutely.

Paul D. Clement:

And I would suggest that it is a perfectly rational exercise of Congress’ judgement to treat marijuana and other Schedule I substances not just as contraband in interstate commerce, but as contraband simpliciter, as contraband for all purposes.

Antonin Scalia:

But that’s quite a different rational than Wickard v. Filburn.

I mean, it seems to me you’re not… you’re not appealing to the fact that it has a substantial impact on interstate commerce.

You’re appealing to the fact that the power which Congress has to prohibit the use of goods carried in interstate commerce cannot effectively be implemented without this law.

Paul D. Clement:

Well, I think there’s some truth to that, Justice Scalia, but let me say this.

I think what I’m saying is, I’m taking the rational that this Court accepted in Wickard, and I’m applying it to a different regulatory regime.

Here, Congress–

John Paul Stevens:

But you’re applying it to the opposite kind of regulatory… you’re applying it to a regulatory regime in which the government wants to prohibit this subject… substances from being sold or… in interstate commerce.

And if you just follow the litter… the letter of this law, this marijuana won’t get into interstate commerce.

In fact, it would reduce the demand for marijuana, because it would supply these local users and they wouldn’t have to go into the interstate market.

Paul D. Clement:

–Well, with respect, Justice Stevens, if you took a look at the Controlled Substances Act, itself, and read it literally, you’d assume that there was absolutely no market, period, in Schedule I substances.

But the reality is, there’s a $10.5 billion market… illegal market, albeit… but market in marijuana in the United States, on an annual basis.

So–

John Paul Stevens:

But to the extent that this statute has any impact, it will reduce the purchase in the interstate market and confine these to locally grown marijuana.

Paul D. Clement:

–Well, first of all, Justice Stevens, that’s only true if there will be no diversion, to get back to–

John Paul Stevens:

Then I’m assuming… my hypothetical is that California could pass a law that would prevent diversions from occurring.

Paul D. Clement:

–Well, in the same way that the Federal Government has had trouble stamping out the marijuana market entirely, I think California is going to have parallel problems in absolutely preventing diversion.

But just–

Anthony M. Kennedy:

I suppose some… one answer to that case is the Perez case, with loan sharking.

Paul D. Clement:

Oh, absolutely, Justice Kennedy.

And, in that context, what this Court said is, even though it was focused on what was going to be an… both in that case and generally, an interstate activity, Congress did not have to just look at the particular plaintiff’s effect on interstate commerce, but, rather, the effect of the entire class of activities.

And if I could–

Ruth Bader Ginsburg:

But, as Justice O’Connor brought out earlier, all those cases… Wickard, Perez… they all involved a commercial enterprise.

And, here, we’re told this is different, because nobody is buying anything, nobody is selling anything.

Paul D. Clement:

–Well, with respect, Justice Ginsburg, I think the whole point of the Wickard case was to extend rationales that it applied previously to commerce to activity that the Court described as economic, but not commercial.

And I think the production and distribution and possession of marijuana is economic in the same way that the production of wheat was in the Wickard case.

David H. Souter:

But you’re… no, I was going to… your whole point, I take it, is that the two particular patients in this case are simply… simply cannot be taken, for our purposes, as representative in the fact that they are getting the marijuana by, I think, growing it themselves or being given it.

You’re saying, you cannot take that fact as a fact from which to generalize in deciding this case.

Paul D. Clement:

That’s exactly right, Justice Souter, and that is the logic, not just of me, but of this Court’s cases, in cases like Darby and Wickard and Wirtz and Perez.

And I point to the Wickard case, in particular, only because it, too, involves a non-commercial enterprise or a non-commercial production of–

Sandra Day O’Connor:

Well, I do take issue with that.

As I read the record in Wickard, it involved a small farmer.

A portion of his wheat went on the interstate market.

It also was fed to cattle, which, in turn, went on the interstate market.

He used some of it himself, but part of it was commercial.

I think Wickard can be distinguished on the facts.

Paul D. Clement:

–Well, Justice O’Connor, it could be… I mean, any case can be distinguished on the facts, of course, but I think what’s important is, this Court, in Wickard, itself, recognized that the case was… it was only interesting because a portion of the regulated wheat involved wheat that was going to be consumed on the farm.

And–

Sandra Day O’Connor:

The other portion is a matter of xxx interstate commerce.

Paul D. Clement:

–Well, that’s true, Justice O’Connor, but this Court, basically, in its opinion, Justice Jackson, for the Court, put aside… to one side all of the grain that was going to go in interstate commerce, since that’s easy under our existing precedents.

This case is only interesting, he said, because it involves wheat that’s going to be consumed on the farm.

And he specifically talked about both the wheat that would be fed to the animals, but also the wheat that would be consumed by the family.

And what he said is, the intended disposition of the particular wheat wasn’t clear from the record of the case.

And, by that, I take him to mean that it wasn’t relevant to the Court’s analysis in upholding the Agricultural Adjustment Act to the wheat at issue there.

And it’s important to recognize that the way the Agricultural Adjustment Act worked is, it applied to all the wheat that was grown in excess of the quota, and so it applied to the wheat that was used by the family for consumption of their own bread.

And, nonetheless, this Court upheld that as a valid Commerce Clause regulation.

And so I think, by parity of reasoning, all of the marijuana that’s at issue and covered by the Controlled Substances Act, whether it’s lawful under state law, whether it’s involved in a market transaction or not, is fairly within the Congress’ Commerce Clause–

Anthony M. Kennedy:

And is–

Paul D. Clement:

–authority.

Anthony M. Kennedy:

–this a harder or easier case than Wickard when we know that, in Wickard, it was lawful to buy and sell wheat, and, here, it is unlawful to buy and sell marijuana?

Paul D. Clement:

Well, Justice Kennedy–

Anthony M. Kennedy:

Does this make your case easier, in a sense, or–

Paul D. Clement:

–I think it does, Justice Kennedy, because, as I said earlier, in responding to a question from Justice Scalia, I think if you’re talking about a context where Congress has the undoubted power to prohibit something in interstate commerce entirely, and has exercised that power, so it treats something as effectively contraband in interstate commerce, and then takes the complementary step, especially in light of the fungibility of the product, and says,

“We’re just going to treat this as contraband simpliciter. “

Paul D. Clement:

I think that judgement by Congress has a very definite link to interstate commerce and its unquestioned authority to regulate interstate commerce.

And I do think there’s a sense in which when Congress is regulating the price of something, there’s certainly a temptation to excise out relatively small producers and for Congress to say,

“Well, we can still have effective regulation if we regulate the vast majority of production. “

But with respect to something that’s unlawful to have and is… and has very significant risks precisely because it’s unlawful, any little island of lawful possession of non-contraband marijuana, for example, poses a real challenge to the statutory regime.

It would also, I think, frustrate Congress’ goal in promoting health.

And I think the clearest example of that is the fact that, to the extent there is anything beneficial, health-wise, in marijuana, it’s THC, which has been isolated and provided in a pill form, and has been available as a Schedule III substance, called–

Ruth Bader Ginsburg:

But there’s–

Paul D. Clement:

–Marinol.

Ruth Bader Ginsburg:

–but there is, in this record, a showing that, for at least one of the two plaintiffs, there were some 30-odd drugs taken, none of them worked.

This was the only one that would.

And it… Justice Souter asked you about these two plaintiffs.

The law can’t be made on the basis of those two plaintiffs.

But let’s suppose that you’re right, generally.

If there were to be a prosecution of any of the plaintiffs in this case, would there be any defense, if there were to be a federal prosecution?

Paul D. Clement:

Well, Justice Ginsburg, I think we would take the position, based on our reading of the Oakland cannabis case… and, obviously, different justices on this Court read the opinion differently and had different views on the extent to which the medical-necessity defense was foreclosed by that opinion… I would imagine the Federal Government, in that case, if it took the unlikely step of bringing the prosecution in the first place, would be arguing that, on the authority of Oakland cannabis, the medical-necessity defense was not available.

But I think, in any event, what is important, at this point, is that we don’t have a prosecution; we have an affirmative effort to strike down the Controlled Substances Act in an injunctive action.

And I think, in that context, certainly Justice Souter is right, that this Court’s precedents make clear that one doesn’t consider only the individual’s conduct, but the entire class of activities that’s at issue.

I think, in this regard, it’s also worth emphasizing that a deeper flaw in the Respondent’s argument, that California law is somehow relevant here or the fact that their conduct is lawful under California law, is that there’s a mismatch between what California law makes lawful and what might be considered relevant for arguing that there’s an attenuated effect on interstate commerce.

Because the California law makes the possession of marijuana for medical use lawful under state law, without regard to whether that marijuana has been involved in a cash transaction or has crossed state lines.

And so, if Respondents are right on their Commerce Clause theory, I don’t see how they can be right because their conduct is lawful under state law or because their… that marijuana use is medical.

If they’re right, then I think their analysis would extend to recreational use of marijuana, as well as medical use of marijuana, and would extend to every state in the nation, not just–

John Paul Stevens:

–Well, I think–

Paul D. Clement:

–those states that made it lawful.

John Paul Stevens:

–Doesn’t it depend on how you define the “relevant class of activities”?

Is it the entire class that Congress ought to regulate, or is it a narrower class, in which the Plaintiffs contend that the statute cannot constitutionally be applied to a particular very narrowly defined class?

And is it ever permissible to define the class narrowly to escape a… the broad argument that you make?

Paul D. Clement:

Well, I don’t think that is permissible, Justice Stevens.

I think that’s what this Court’s cases in Wirtz, in Darby, in Wickard–

John Paul Stevens:

So you’re saying that this statute could never have an unconstitutional application.

Paul D. Clement:

–Under the Commerce Clause, I… that’s exactly right, that would be our position.

Paul D. Clement:

It is constitutional on its face, and it… and because of that line of authority, an as-applied challenge can be brought, but the legal test that’s applied in the as-applied challenge is one that considers the constitutionality of the statute as a whole–

Sandra Day O’Connor:

But, in Morrison, did the Court’s opinion not say that Congress cannot justify Commerce Cause… Clause legislation by using a long but-for causal chain from the activity in question to an impact on interstate commerce?

I mean, the Court certainly made that statement.

Paul D. Clement:

–Oh, absolutely, Justice O’Connor, but–

Sandra Day O’Connor:

Which cuts against what you’re saying.

Paul D. Clement:

–Well, with respect, I don’t think so.

And I’d say two things about it.

One, this Court, in Morrison and Lopez, was very important to emphasize… thought it was very important to emphasize two things: one, that the activity there was non-economic in a way that differentiated it, even from Wickard; and, second, the Court also made it clear that the regulation that there… there was not essential to the effectiveness of an overall regulatory scheme.

And I think, on both points, this case is on the constitutional side of the line that separates the Lopez and the Morrison case.

Sandra Day O’Connor:

The argument on the other side is that this limited exception is a non-economic use… growing for personal use, under prescription–

Paul D. Clement:

I understand that… I understand that’s their argument, Justice O’Connor, but I don’t understand how this Court, in Lopez, could have said that Wickard involved non-economic activity if this activity is not also covered.

You’re talking about–

Antonin Scalia:

Involved economic activity.

Paul D. Clement:

–I’m sorry if I misspoke.

Economic activity.

Because what you’re talking about here is the possession, the manufacture, the distribution of a valuable commodity for which there is a ready… unfortunately, a ready market, albeit an illicit market.

Anthony M. Kennedy:

–If we rule for the Respondents in this case, do you think the street price of marijuana would go up or down in California?

Paul D. Clement:

I would be speculating, Justice Kennedy, but I think the price would go down.

And I think that what… and that, in a sense, is consistent with the government’s position, which is to say, when the government thinks that something is dangerous, it tries to prohibit it.

Part of the effort of prohibiting it is going to lead to a black market, where the prohibition actually would force the price up.

And there is a sense in which this regulation, although not primarily designed as a price regulation… the Controlled Substance Act, I think, does have the effect of increasing the price for marijuana in a way that stamps down demand and limits the… and in a way that reduces demand.

And I think that’s all consistent with Congress’ judgement here.

And if I could return for a second to the point about Marinol, what’s important there is that the process of manufacturing of Marinol, and isolating the one helpful component, does two things.

One, the manufacturing process allows there to be a safe use for one of the components in marijuana.

But it also provides an unambiguous hook for Congress to exercise its Commerce Clause authority.

And yet the overall regime of trying to get people to use more healthful substances, and not use things like crude marijuana that have harmful effects, is undermined if Congress can’t also address that which is more harmful, but is distinct only because it is capable of being locally produced.

And that’s exactly what crude marijuana is.

John Paul Stevens:

In other words, the statute is… it trumps the independent judgement of the physicians who prescribe it for the patients at issue in this case.

Paul D. Clement:

Well, I think, in responding to that, Justice Stevens, I would say, obviously, for purposes of federal law, the idea of medical marijuana is something of an oxymoron, because the Federal Government treats it as a Schedule I substance.

Now, notwithstanding that, some doctors may make a different judgement about a particular patient; but that’s something that this Court, I think, has previously understood, that the federal regulatory regime does not allow individual patients or doctors to exempt themselves out of that regime.

John Paul Stevens:

Right.

Paul D. Clement:

I think that’s the import of the Rutherford decision with Laetrile.

John Paul Stevens:

Do you think there could be any state of facts on which a judicial tribunal could disagree with the finding of Congress that there’s no acceptable medical use?

Say they had a… say there was a judicial hearing on which they made a contrary finding.

Would we have to ignore that?

Would we have to follow the congressional finding or the judicial finding if that happened?

Paul D. Clement:

Well, it depends on the exact hypothetical you have in mind.

I think the… the judicial finding that I think would be appropriate, and this Court would not have to ignore in any way, is a finding by the D.C. Circuit that, in a particular case where there’s a rescheduling effort before the FDA, that the underlying judgement of the FDA refusing to reschedule is invalid, arbitrary, capricious.

That’s the way to go after the finding that marijuana is a Schedule I substance without a valid medical use in treatment.

This is not a situation in… and your hypothetical might respond to a different statute that raised a harder question, where Congress made such a medical finding, and then just left it there without any mechanism to adjust the finding for changing realities.

But, here, Congress made it clear that a process remains open to reschedule marijuana in a way that gets it onto Schedule II or Schedule III.

And I think it’s wrong to assume that there’s any inherent hostility to the substances at issue here.

I mean, the FDA, for example, rescheduled Marinol from Schedule II to Schedule III in a way that had the effect of making it easier to prescribe and more available.

But I think what’s going on with the FDA is an effort to try to counterbalance the risk for abuse, the risk for diversion, with these other considerations of getting safe medicine–

Ruth Bader Ginsburg:

Have there–

Paul D. Clement:

–available to patients–

Ruth Bader Ginsburg:

–have there been any applications to change the schedule for marijuana to the FDA?

Paul D. Clement:

–There have been a number of those petitions that have been filed.

There was one recently rejected, I think as recently as 2001; it may be 1999.

There was also a series of, kind of, a four or five-iteration effort to change the rescheduling that culminated in a D.C. Circuit opinion in the early ’90s.

So there’s definitely been these efforts.

But on the current state of the… of the record, there just is not a justification for changing the schedule.

And I think both of the briefs talked a little bit about the Institute of Medicine’s study about the medical efficacy of marijuana.

And I think one thing that’s important to keep in mind that that study comes to a conclusion about is, whatever benefits there may be for the individual components in marijuana, that smoked… smoked marijuana itself really doesn’t have any future as medicine, because… and that’s true, I think, for two reasons.

One, there’s something like 400 different chemical components in crude marijuana that one would smoke, and it’s… it just, sort of, belies any logic that all 400 of those would be helpful.

And a big part of the process of medicine, generally, is to take raw, crude material that somebody could grow in their garden, and actually have people who do this for a living get involved in a process of synthesizing and isolating the beneficial components, and then manufacturing and making that available.

The second reason that smoked marijuana doesn’t have much of a future as medicine is, as I think people understand, smoking is harmful; and that’s true of tobacco, but it’s also true of marijuana.

And so the idea that smoked marijuana would be an effective delivery device for medicine, I think, is also something that really doesn’t have any future as medicine.

What does have a future for medicine, of course, is an effort to synthesize and isolate the beneficial component.

That’s been done with Marinol.

Paul D. Clement:

It is true that some people have difficulty tolerating the pill form that Marinol is available in.

And there’s ongoing research to try to figure out different ways to deliver that substance.

But there is, in a sense, a little bit of a… and the Institute of Medicine’s study has about five pages discussing Marinol, and it makes the point that there’s something of a tradeoff.

Because one of the downsides of Marinol, as opposed to marijuana, is that it takes longer to get into the bloodstream.

But that’s also one of the reasons why the FDA has made a judgement that Marinol is less subject to abuse, because it takes longer to get into the drug-stream, and so it doesn’t have the characteristic of street drugs that tend to be abused, which is a very quick delivery time between the taking of the substance and the time that it has an effect on the system.

David H. Souter:

May I go back to your point a few minutes ago about… it was, sort of, a categoric point… you, in effect, said,

“If this argument succeeds with respect to medical use of marijuana, the next argument is going to be recreational use, and there’s no real way to distinguish between them. “

Wouldn’t this be a way to distinguish between them?

That in deciding what class you are going to… or what subclass you’re going to consider from which to generalize, you simply ask the question,

“What good reasons are there to define a subclass this way? “

In this particular case, the good reasons to define a subclass of medical usage are the benefits… whether you accept the evidence is another thing… but the benefits which the doctors say that, under present circumstances, you can get from smoking it, as opposed to taking the synthesized drug.

There’s no such argument, I would guess, in favor of recreational marijuana usage as a separate category.

And, for that reason, isn’t there a… isn’t there a good reason to categorize this as narrowly as the Respondents are doing here, just medical usage, without any risk of generalizing the recreational usage?

Paul D. Clement:

With respect, Justice Souter, I don’t think that it would be a good idea for this Court to get on a path of starting to second-guess Congress’ judgement about defining a class of activities–

David H. Souter:

That may… oh, that may be, but it seems to me that that’s a separate argument, because you’re… you were arguing before that if you recognize medical usage, you don’t have any way of drawing the line against private recreational usage.

And I’m suggesting that you do have a reason for drawing that line, and it’s the benefit for medical usage, if you accept the evidence; whereas, there is no reason to categorize recreational usage separately, and that seems to me a category argument, rather than a respect-for-Congress argument.

Paul D. Clement:

–Well, Justice Souter, I have no doubt that this Court could draw a line.

I think it would find it very difficult to police that line over the broad variety of cases.

I think it would find it every bit as frustrating as policing the line in Hammer against Dagenhart that this Court abandoned in Darby.

With that, I’d like to reserve my time for rebuttal.

John Paul Stevens:

Mr. Barnett?

Randy E. Barnett:

Justice Stevens, and may it please the Court:

I have two points to make.

First, the class of activities involved in this case are non-economic and wholly intrastate.

Second, the federal prohibition of this class of activities it not essential… is not an essential part of a larger regulatory scheme that would be undercut unless the intrastate activity were regulated.

If you accept the government’s contrary contentions on either of these two points, Ashcroft v. Raich will replace Wickard v. Filburn as the most far-reaching example of Commerce Clause authority over intrastate activity.

Anthony M. Kennedy:

Well, on your first point, can’t we infer from the fact that there’s an enormous market, commercial market, for any given commodity, that simple possession of that commodity is a form of participation in the market?

Randy E. Barnett:

It can be, or it might not be.

If you possess an item that came from the market or is going to the market, simple possession could easily be a part of the marketplace.

But if you’re in possession of an item that you’ve made, yourself, that is disconnected from the market… it didn’t come from the market and it’s not going to the market–

Anthony M. Kennedy:

Well, but it’s fungible.

Randy E. Barnett:

–That… the fungibility issue is in this case, but the… but a… the fact that a good is fungible does not make it a market good, and it does not make the possession of that good an economic activity.

Or–

Antonin Scalia:

Well, you know, Congress has applied this theory in other contexts.

One is the protection of endangered species.

Congress has made it unlawful to possess ivory, for example.

It doesn’t matter whether you got it lawfully, or not; or eagle feathers, the mere possession of it, whether you got it through interstate commerce or not.

And Congress’ reasoning is,

“We can’t tell whether it came through interstate commerce or not, and to try to prove that is just beyond our ability; and, therefore, it is unlawful to possess it, period. “

Now, are those… are those laws, likewise, unconstitutional, as going beyond Congress’ commerce power?

Randy E. Barnett:

–Not if they’re an essential part of a larger regulatory scheme that would be undercut, unless those activities are reached.

Antonin Scalia:

Well, why is that different from this?

Randy E. Barnett:

Because this class of activities… because it’s been isolated by the State of California, and is policed by the State of California, so that it’s entirely separated from the market–

Antonin Scalia:

Isolated and… I understand that there are some communes that grow marijuana for the medical use of all of the members of the communes.

Randy E. Barnett:

–That class of activities is not before the Court.

That is actually before–

Antonin Scalia:

No, but it’s before the Court when you… when you raise the policing of the problem by California, and saying it’s not a… it’s not a real problem, you brought it before the Court.

Randy E. Barnett:

–But that class of activities could be… could be… if this Court limits its ruling to the class of activities that is before the Court, that class–

Antonin Scalia:

Which is… which is what?

Randy E. Barnett:

–Which is–

Antonin Scalia:

An individual grower?

Randy E. Barnett:

–An individual who is growing it for her… him or herself, who has… or has a caregiver growing it for her–

Antonin Scalia:

Gee, what basis–

Randy E. Barnett:

–for–

Antonin Scalia:

–what basis is there to draw it that narrowly? I mean, I guess if we… we could say people whose last name begins with a Z.

You know, that would narrow the category, too.

But why does… why does that make any sense?

Randy E. Barnett:

–Justice Scalia, we believe it makes sense because we are talking about a classification of activities that has been identified by the State of California, and which is rational to distinguish from–

Antonin Scalia:

Oh, but California hasn’t identified individual growers.

Communes are okay, as far as California law is concerned.

Randy E. Barnett:

–Well, it’s not entirely clear whether communes are okay, as far as the California laws are concerned.

Antonin Scalia:

Why wouldn’t it be?

Randy E. Barnett:

Because if, in fact, commercial activity is taking place, if buying and selling is taking place–

Antonin Scalia:

No, no, they’re not buying and selling.

I mean, you can’t prove they’re buying and selling.

There are just a whole lot of people there, with alleged medical needs.

Stephen G. Breyer:

I mean, I don’t understand. Is there any authority in the commerce cases for… an X, which is there in the middle of a state, and it doesn’t move one way or the other… now, Congress’ power does extend to the X if the state doesn’t say something about the X.

But if the state says something about the X, then Congress’ power does not extend to it.

That’s hard for me to accept, because I don’t see… whether it’s commerce or not commerce, whether it affects something or doesn’t affect something, doesn’t seem to me to have much to do with whether the state separately regulates it, and I can’t find any support at all for that in any case.

Randy E. Barnett:

–The support would come from the exception to Lopez and Morrison that the government is urging that the Court adopt, that the Congress can reach non-economic activity that’s intrastate, that’s wholly intrastate, if doing so is essential to a larger regulatory scheme that would be undercut if they can’t reach it.

Stephen G. Breyer:

Well, here, they say… look, I take it you’re using this because I was going to ask you.

You know, he grows heroin, cocaine, tomatoes that are going to have genomes in them that could, at some point, lead to tomato children that will eventually affect Boston.

You know, we can… oil that’s never, in fact, being used, but we want an inventory of it, federally.

You know, I can multiply the examples–

Randy E. Barnett:

Well–

Stephen G. Breyer:

–and you can, too.

So you’re going to get around all those examples by saying what?

Randy E. Barnett:

–By saying that it’s all going to depend on the regulatory scheme, what the–

Stephen G. Breyer:

Yeah.

Randy E. Barnett:

–purpose of the–

Stephen G. Breyer:

So now what you’re saying is, in a Commerce Clause case, what we’re supposed to do is to start to look at the federal scheme and the state scheme and see, comparing the federal scheme and the state scheme, whether, given the state scheme, the federal scheme is really necessary to include this.

That’s a task, and I’m trying to make it as complicated as I can in my question.

[Laughter]

But I see it very well.

Here is what they say.

They say that,

“By the way, a hundred-thousand people using medical marijuana in California will lead to lower marijuana prices in the nation. “

“Bad. “

“And, second, when we see medical marijuana in California, we won’t know what it is. ” “Everybody’ll say, “Mine is medical”.”

“Certificates will circulate on the black market. “

Stephen G. Breyer:

“We face a mess. “

“For both those reasons, it does have an impact. “

they say.

Now, what’s your response?

Randy E. Barnett:

–Well, you’ve raised at least two different practical issues.

One is the fact… the number of people who are in the class, and the second is the ability to identify whether they properly belong in the class.

As for the number of people, we are talking about a very small number of people.

They say a hundred-thousand.

They get their figures from the National Organization from Reform of Marijuana Laws.

Our figures in our brief come from the government.

The figures show it’s a very small fraction of persons that would be involved.

And their argument is basically… and the logic of your hypothetical is premised on… the more people that go into the illicit market, the better for federal drug policy, because that will drive the price up.

You have to… what we’re take… we’re doing is, we’re taking people out of the illicit drug market, which then, under your hypothetical, would lead to a reduction… and Justice Kennedy’s suggestion… would lead to a reduction in the price of the illegal market, which, the opposite would be, they’re… it’s good for federal policy to have more people in the illicit drug market, because that’s going to drive the price up.

Stephen G. Breyer:

No, no, we don’t want more people–

Randy E. Barnett:

Of course not.

Stephen G. Breyer:

–in the illicit drug market.

[Laughter]

Randy E. Barnett:

Of course not.

Stephen G. Breyer:

And we don’t want low prices, either.

[Laughter]

Randy E. Barnett:

But the… but the… but the scheme of… but the class of activities that have been authorized by the State of California will take people out of–

Stephen G. Breyer:

So, normally I would have said, it’s up to Congress to figure out how to… the way that… you have one going one way, one going the other way, and balancing those factors would be for Congress.

That’s what we’d normally say.

Randy E. Barnett:

–Well–

Stephen G. Breyer:

And you say all that stuff is not for Congress; that’s for us.

Randy E. Barnett:

–Well, within this exception… the threshold issue… I do want to make sure that I focus on this… the threshold issue, which is the issue that has occupied most of our time so far, is whether the activity here is economic or non-economic.

The government claims it’s economic, we claim it’s non-economic.

Stephen G. Breyer:

Well, what it is, is, it’s non-economic, and it affects the economic.

Randy E. Barnett:

Right.

So the threshold issue that is… that… upon which Lopez and Morrison terms… turns is whether it’s economic or non-economic.

Anthony M. Kennedy:

Well, I should have thought that regular household chores of… say, performed in an earlier time mostly by women, was classically economic… washing dishes, making bread.

And now you say growing marijuana isn’t?

Randy E. Barnett:

If you accept the government’s definition of economic, then every… then washing dishes, today, would be economic, and that–

David H. Souter:

No, but even–

Randy E. Barnett:

–would be within the… within the power of Congress to reach.

David H. Souter:

–But even if we accept your definition of economic, I don’t see that it is a basis upon which we ought to make a category decision.

You say it’s non-economic because one of these people is a… is a self-grower, another one is getting it from a friend for nothing.

But I don’t see what reason that you have given, or any reason that you haven’t given, for us to believe that, out of… now I’m going to assume, for the sake of argument, a hundred-thousand potential users… everybody is going to get it from a friend or from plants in the backyard.

Seems to me the sensible assumption is, they’re going to get it on the street.

And once they get it, under California law, it’s not a crime for them to have it and use it.

But they’re going to get it in the street.

Why isn’t that the sensible assumption?

Randy E. Barnett:

Well, they have an… they have a very strong incentive not to get it on the street, because getting it on the street is going to subject them to criminal prosecution, under both California and federal law, as well as the–

David H. Souter:

Yeah, but the… it’s also the case that approximately 10 percent of the American population is doing that every day, if I accept the figures in the government’s brief, and they’re not getting prosecuted.

Randy E. Barnett:

–But we’re talking… in that case, we’re talking about people who are using it for sport, for recreation.

We are talking about a class of people here who are sick people, who don’t necessarily want to violate the law.

David H. Souter:

And if I am a sick person, I’m going to say,

“Look, if they’re not prosecuting every kid who buys, what, a nickel bag or whatever you call a small quantity today, they’re not going to prosecute me, either. “

I mean, there’s not going to be any incentive, it seems to me, to avoid the street market.

Randy E. Barnett:

The government, in their brief, asserts that the… that the possession statute that currently exists provides a deterrent effect, which is why they… which is their explanation for why they failed to enforce the possession statute that they say is so essential to the–

Ruth Bader Ginsburg:

If one–

Randy E. Barnett:

–regulatory scheme.

Ruth Bader Ginsburg:

–if one takes your view, that this is non-economic activity, so it’s outside Congress’ commerce power, then explain to me why, if you have someone similarly situated in a neighboring state, somebody whose doctor says,

“This person needs marijuana to live. “

but that state doesn’t have a compassionate-use act… it’s just as isolated… no purchase, no sale, grown at home, good friend grows it… and yet you say Congress could regulate that, if I understand your brief properly.

Randy E. Barnett:

Yes, Your… yes, Your Honor, because there’s the… that’s the second step of the analysis.

The first step of the analysis is the economic/non-economic.

If you don’t… if the Court stops there, then they could also apply in these other states.

But then if the Court adopts–

Ruth Bader Ginsburg:

But if you… if you buy that… so your first answer is, yes, on your first argument, it would be equally impermissible for the feds to regulate medical use anywhere.

Randy E. Barnett:

–Yes, Your Honor.

Ruth Bader Ginsburg:

All right.

Now you’re going to have some limiting–

Randy E. Barnett:

But a limiting principle is the one that I… was identified by the Court in Lopez in which the government is asserting that if it’s an essential part of a broader regulation of economic activity to reach this activity, then it may be reached.

And the difference between states in which there is a state law enforcement that’s confining the class, and that there is a discrimination between legal and non-legal use, is completely different from a practical enforcement standpoint than a state in which there is no differentiation.

Just think of the existence, for example, of identification cards, which the State of California is going to be issuing, like driver’s license cards.

Ruth Bader Ginsburg:

–Yeah, but it doesn’t right now, and that doesn’t make the scheme less valid, in your view.

Randy E. Barnett:

Well, because… but this is the sort of regulation… the sort of effectiveness of the regulation that will be at issue and which is, in fact… I believe the Court should be in the position of trusting the State of California to be able to administer its regime.

There is no regime in other states to trust, and, therefore, the argument that it is necessary to reach that activity, and a lot of other activity in states in which the states are not attempting to pursue the health of their citizens… the goal of preserving the health of their citizens this way, that would fall under the exception which this Court suggested in Lopez–

Stephen G. Breyer:

So this is a new framework, I take it, and it’s very interesting.

And one of the things that interests me… I guess, on your framework, Lopez should have come out my way.

[Laughter]

Randy E. Barnett:

–Well–

Stephen G. Breyer:

Because it’s essential to regulate guns in schools as part of a national gun-control regulatory scheme.

Randy E. Barnett:

–Justice Breyer, that’s the reason why that exception has to be narrowly treated, so it doesn’t reach your result.

[Laughter]

If that exception were treated as broadly as you suggested that it should be in your dissent in Morrison, then the game is up, the exception will swallow the rule, and Lopez and Morrison will be limited to their facts.

Stephen G. Breyer:

Well, I thought we didn’t need to reach all that here, for the reason that the connection here, which is an enforcement-related connection and a market-related connection, is actually, I have to confess, a little more obvious and a little more close than what I had to… what I had to say in Lopez to… was the connection between guns, education, communities, and business.

So I would have thought, given the… and I believe that, you know… but, I mean… but that was far further than this, which is just direct.

Randy E. Barnett:

But this case is completely unlike those cases.

This case is completely isolated.

In Lopez, that gun probably did come through interstate commerce, not that I believe it should have made any difference, but it probably did.

Here, we’re talking about substances that don’t.

So there’s just no literal connection between this class of activities and this interstate market.

Antonin Scalia:

Well, we didn’t decide that, in Lopez, on the basis of whether the gun had come in interstate commerce.

If the statute in question had applied only to guns that had been transported in interstate commerce, the case might have come out differently.

Randy E. Barnett:

I… no doubt, Your… I… and I wasn’t suggesting otherwise, Justice Scalia.

I’m just suggesting that, here, we have… exactly, that if there had been that interstate connection in Lopez, the case might have come out different.

There is no interstate connection whatsoever in this class of cases.

None.

Randy E. Barnett:

The only way to make it an interstate connection is through some sort of hypothetical economic substitution effect in which somebody who’s doing something over here is going to have an affect on somebody else who’s doing something over there.

There is no connection.

Antonin Scalia:

Sounds like Wickard to me.

Randy E. Barnett:

Well, Wickard, Your Honor–

Antonin Scalia:

I always used to laugh at Wickard, but that’s… that’s what Wickard said.

Randy E. Barnett:

–Wickard–

Antonin Scalia:

Had he not eaten the wheat, it would have been in interstate commerce.

Randy E. Barnett:

–Had that case been about eating wheat, that case would never have arisen.

Antonin Scalia:

Well, that’s what it was about, as far as the Court’s analysis was concerned.

To be sure, there were a lot of… there was a lot more use of the wheat on his farm, other than just human consumption, but it seems to me the analysis of the case said,

“You take it… you take it out of the stream of commerce by growing it yourself, you make it unnecessary for your… to buy it in interstate commerce. “

Randy E. Barnett:

It’s… the entire analysis… the entire proof that the court relied upon in Wickard was proof of the economic impact of home-consumed wheat on the farms.

And by “home-consumed”, it did not mean eating at the family… at the family table; it meant feeding to your livestock and then putting it… your livestock–

Antonin Scalia:

Strange phrase, to mean “feeding to livestock”?

Randy E. Barnett:

–But the–

Antonin Scalia:

“Home-consumed” is feed it to your pig?

Randy E. Barnett:

–But, yes, that’s exactly what–

Antonin Scalia:

I don’t think so.

Randy E. Barnett:

–that’s exactly what that general term… how that general term was used in this case.

Stephen G. Breyer:

But what the Court said, I take it… and I have quoted a lot of the language there… it says that the wheat farmer’s consumption of home-grown wheat, not the part that went in… quote,

“though it may not be regarded as commerce– “

Randy E. Barnett:

Yes, Your Honor.

Stephen G. Breyer:

–end quote, still can be regulated, quote, “whatever its nature”, so long as, quote,

“it exerts a substantial economic effect on interstate commerce. “

Now, that’s the language, and I take it that Justice Scalia is exactly right, I thought, from that language, it’s about the analysis, home-grown wheat, which is not economic, having an effect on something that is.

Randy E. Barnett:

With all respect–

Stephen G. Breyer:

Which is not commerce.

Sorry, not commerce.

Randy E. Barnett:

–With all respect, what… that’s… I was about to make that–

Stephen G. Breyer:

Well, the Commerce Clause speaks in terms of commerce.

Randy E. Barnett:

–Right.

Right.

What the Court was using here was the narrower… the traditional definition of “commerce” that Justice Thomas has been urging this Court to adopt.

And they were saying that,

“We are not going to limit ourselves to that narrow definition of “commerce”. “

It would include, for example, agriculture and production.

That’s all going to be reachable, even though it’s not commerce, in the traditional sense.

But what we would call it today, and I believe what the Court correctly called it, in Lopez, was “economic activity”.

Production is economic activity.

Manufacturing is economic activity.

But… it’s not commerce, but it’s economic activity that can be reached.

And that is the activity… that’s not only the activity that Farmer Filburn was engaged in; that was the activity that the statute was aimed at.

The statute–

Antonin Scalia:

Well, why is this not economic activity, if you use the term in that broad sense?

This marijuana that is grown, just like the wheat that was grown, in Wickard, since it’s grown on the farm, doesn’t have to be bought elsewhere, and that makes it an economic activity.

Randy E. Barnett:

–What made it an economic activity in Wickard was the fact that it was part of commercial enterprise, that it was being used on the farm… not in interstate commerce, but part of the commercial enterprise of the farm.

Antonin Scalia:

Again, I don’t think that’s… that faithfully represents what the opinion said.

I think the opinion covered… including the amount that he consumed himself, and his family consumed.

Randy E. Barnett:

The… look, I… for whatever it’s worth, it’s worth remembering that the statute exempted small commercial farms.

People who had backyard gardens weren’t even included within the regulatory regime.

The regulatory regime was about regulating or stopping or restricting the supply of wheat that got into the market, or that could have–

Antonin Scalia:

Did the opinion make a point of that?

Randy E. Barnett:

–Pardon me?

Antonin Scalia:

Did the opinion make a point of that?

Randy E. Barnett:

It… it was mentioned in the opinion.

It was not… it was not a major point of this opinion.

But–

Antonin Scalia:

I don’t think it was a point of the Court’s analysis at all.

Randy E. Barnett:

–This–

Antonin Scalia:

Could I… could I–

John Paul Stevens:

Let me ask this question.

What is your view with respect to the impact of the activities concerned in this case on the interstate market for marijuana?

Is it your view that it will have no impact, that it will increase the interstate demand, or decrease the interstate demand?

So there are three alternatives.

Which is the one we should follow?

Randy E. Barnett:

–Can I pick “trivial impact”?

[Laughter]

John Paul Stevens:

No, but if it… “trivial impact”, is it a trivial impact that enhances the price of marijuana or decreases the price of marijuana, in your view?

Randy E. Barnett:

The only effect it could have on the price would be a slight trivial reduction, if it has any effect at all, because it’s going to withdraw users from the illicit drug market.

And to the extent that they are now in the illicit drug market… and we don’t know whether they are or not–

John Paul Stevens:

Well, that would reduce demand and increase price, it seems to me.

It’s the other way around.

Randy E. Barnett:

–Well, it would reduce demand and reduce prices, I think.

But–

John Paul Stevens:

If you reduce demand, you reduce prices?

Are you sure?

Randy E. Barnett:

–Yes.

[Laughter]

John Paul Stevens:

Oh, you’re right.

You’re right.

Okay.

Yeah.

David H. Souter:

Your whole argument for triviality, though, goes… your whole argument for triviality, though, goes back to your disagreement with the government about how many people are involved, because I take it you accept the assumption that the more people who are involved… if there are millions and millions, it is unlikely that this licensed activity is going to be without an effect on the market.

So the whole argument boils down to how many people are going to be involved.

You don’t accept the government’s 100,000-dollar figure.

Let me ask you a question that would… that would get to, maybe, a different number, and that is, Do you know how many people there are in California who are undergoing chemotherapy at any given time?

Randy E. Barnett:

I do not know the answer to that.

David H. Souter:

Isn’t that number going to be indicative of the demand for marijuana?

Randy E. Barnett:

It could be, Your Honor, but that also illustrates–

David H. Souter:

But if you… if you accept that, then there’s nothing implausible about the government’s hundred-thousand number, is there?

Randy E. Barnett:

–But whatever… I don’t know, because I don’t know the number of people using chemotherapy.

But whatever the number–

David H. Souter:

How many people are there in California?

What’s the population?

Anthony M. Kennedy:

Thirty-four million.

Randy E. Barnett:

–Thank you, Justice Kennedy.

David H. Souter:

Lots… lots–

[Laughter]

–lots and lots.

They… a hundred-thousand cancer patients undergoing chemotherapy does not seem like an implausible number.

And, in fact, if that number is a plausible one today, its plausibility reflects, among other things, the fact that there is a controversy as to whether California’s law, in fact, is enforceable, or not.

And the reason… there is reason to assume that… if we ruled your way, that that number would go up.

So, if you accept that line of argument, then your argument, that the effect, whatever it may be, is going to be trivial, seems to me unsupportable.

Am I missing something?

Randy E. Barnett:

Well, two things.

First of all, whatever number it is, it’s going to be confined to people who are sick, who are sick enough to use this.

That is not an infinitely expandable number, the way, for example, recreational activity is, where lots of people could just decide to do it.

We’re talking about people who qualify, on a physician’s recommendation, for this particular activity.

That will limit the number.

But the amount of the people… the effect on commerce only matters if the Wickard v. Filburn aggregation principle applies to the class of activities in this case, and it does not apply to the class of activities in this case if they are non-economic, as we assert that they are.

David H. Souter:

Well… but that is circular reasoning, because the whole… your whole argument that it’s non-economic is based on the claim that there are… the numbers are so few… the number of people involved, from what you could generalize, are so few that it would not be reasonable to infer an effect on the market.

If there would be a large market effect, it makes no more sense to call this non-economic than Filburn’s use, non-economic.

Randy E. Barnett:

Lopez and Morrison stand for the proposition that activities that simply have an effect on the market are not necessary… that does not make them economic.

This Court rejected that proposition, that just because an activity has an effect… an economic effect makes the activity, itself, economic.

It adopted a principle that’s less than–

Antonin Scalia:

–Remote, remote, remote economic effect.

David H. Souter:

It was inference upon inference upon inference.

That’s not what we’re talking about here.

Randy E. Barnett:

–But just… just have it… just… whether an activity is economic, you have to look to the activity, itself, and an economic activity is one that’s associated with sale, exchange, barter, the production of things for sale and exchange, barter.

This whole Court’s jurisprudence since The New Deal has been premised on the ability to tell the difference between economic activity, on the one hand, and personal liberty, on the other.

David H. Souter:

Your whole jurisprudence in this case is premised on the assumption that we have got to identify the entire range of potential effect based on the particular character of two individuals in their… in their supply of marijuana.

And the whole point of this argument is that that does not seem to be a realistic premise on which to base constitutional law.

Randy E. Barnett:

The premise of our… the premise of our economic claim is the nature of the activity involved, not necessarily its effect, but the kind of activity it is.

The idea… for example, you… prostitution is an economic activity.

Marital relations is not an economic activity.

We could be talking about virtually the same act.

And there is a market overhang for… from private sexual relations to prostitution, but we don’t say that because there is a market for prostitution, that, therefore, everything that is not in that market is economic.

We look at the activities, and we–

Stephen G. Breyer:

I’d like to ask you one question about the activity–

Randy E. Barnett:

–Yes.

Stephen G. Breyer:

–which was brought up before, and I just… I’ve never understood this.

I’m not an expert.

I don’t honestly know, if I really think about it, despite all the papers and so forth, whether it’s true that medical marijuana is helpful to people in ways that pills are not.

I really don’t know.

So I would have thought that the people, like your clients, who have a strong view about it, would go to the FDA, and they would say to the FDA,

“FDA, take this off the list. “

“You must take it off the list if it has an accepted medical use and it isn’t lacking in safety. “

The FDA will say yes or it will say no.

If they say no, they can come right into court and say, “That’s an abuse of discretion”.

The Court says yes or no.

If it says yes, they win.

If it says no, it must be because it wasn’t an abuse of discretion, in which case, I, as a judge, and probably as a person, would think it isn’t true that marijuana has some kind of special use.

So that would seem to me to be the obvious way to get what they want.

That seems to me to be relevant to the correct characterization.

And while the FDA can make mistakes, I guess medicine by regulation is better than medicine by referendum.

Randy E. Barnett:

Well–

Stephen G. Breyer:

So that’s… I just want to know why.

Randy E. Barnett:

–Well, Your Honor, first of all, that whole process wouldn’t dictate what the power of Congress is to reach this activity–

Stephen G. Breyer:

That’s all true, but as long as that hasn’t been done, don’t I have to take this case on the assumption that there is no such thing as medical marijuana that’s special and necessary?

Randy E. Barnett:

–I would–

Stephen G. Breyer:

If has been done, maybe I shouldn’t make it.

Randy E. Barnett:

–I would simply ask Your Honor to read the amicus brief by Rick Doblin, in which it describes the government’s obstruction of scientific research that would establish the safety and efficacy of cannabis by denying supplies of cannabis… of medical… of cannabis for medical experimentation.

And then I’d ask Your Honor to read the Institute for Medicine’s report, that both the government and I… and we have relied upon in our briefs.

There has been no impeachment of this report by the National Academy of Sciences on the medical effect.

And what they say is that the… that what information we have is that cannabis does have a substantial medical effect.

Smoked cannabis does carry with it harms associated with it, as the… as General Clement correctly pointed out.

It does carry with it these ancillary harms.

But when people are sick and people are suffering and people are dying, they may be willing to run the risk of these long-term harms in order to get the immediate relief, the life-saving relief that cannabis has demonstrably been able to provide.

I’d just ask Your Honor to look at that, which is in the record.

Anthony M. Kennedy:

Are prescriptions, under California law, limited only to those people with life-threatening illnesses?

Randy E. Barnett:

They are limited to a list of illnesses that are in the statute.

Ruth Bader Ginsburg:

Some of the illnesses–

Randy E. Barnett:

Some of which are life-threatening and some of which are not, Your Honor.

Ruth Bader Ginsburg:

–In one… in one plaintiff’s case, I think, there isn’t a life-threatening–

Randy E. Barnett:

That’s correct, Your Honor.

She has… she has severe back spasms and pain that cannot be controlled by conventional medicines.

She’s a law-abiding citizen.

This goes back to the issue of what the… incentives there are that are created by this.

This is a law-abiding woman, who has never been interested in the illicit-drugs market.

Ruth Bader Ginsburg:

–May I just ask you one procedural question?

Randy E. Barnett:

Yes.

Ruth Bader Ginsburg:

And this is… this is a suit for an injunction.

And it… basically an injunction against a criminal prosecution.

Randy E. Barnett:

And seizure–

Ruth Bader Ginsburg:

And–

Randy E. Barnett:

–of these plants.

Ruth Bader Ginsburg:

–and there’s an old saying, in equity, that courts don’t enjoin criminal prosecutions.

So how is your injunction suit appropriate, given that old saying there that you have to make your defense in the criminal proceeding and not enjoin this operation?

Randy E. Barnett:

Well, it is… it is an… we’re seeking an injunction to prevent the enforcement of the statute against these two persons, which includes forfeiture, which has already happened in this case.

We’ve already had Diane Monson’s plants seized by the Drug Enforcement Authority.

Randy E. Barnett:

That is not something that we… that we… that has anything to do with criminal prosecution, and yet that puts at risk her supply of medicine, the supply of medicine she needs to get by, to relieve her suffering.

I see my time–

John Paul Stevens:

Thank you.

Randy E. Barnett:

–is up.

John Paul Stevens:

Thank you, Mr. Barnett.

General Clement, you have four minutes.

Paul D. Clement:

Thank you, Justice Stevens, and may it please the Court:

As I understand Respondents’ position, it’s effectively that their clients, and clients like them, in their use of medical marijuana, is somehow so hermetically sealed from the rest of the market on marijuana that it has no effect on that market on marijuana and no effect on the government’s overall regulatory regime.

And I understand that to be true largely because of state law.

And one of the many problems with that mode of analysis is that the state law is not designed only to carve out those transactions that have no effect on interstate commerce or no effect on the federal regulatory regime.

Proposition 215 was not tasked as an exercise in cooperative federalism; it was passed as an effort to make medical marijuana lawful to possess, whether you bought it in interstate commerce, whether you bought it with the marijuana having traveled in interstate commerce, whether you bought it, whether you grew it yourself.

There’s a fundamental mismatch with their theory that really, I think, undermines their theory.

Now, there’s the question now about what kind of impact this would have on the federal enforcement scheme.

Now, we, in our reply brief, try to use the numbers from one of Respondents’ own amici, and we suggest that there’s a hundred-thousand people that might be lawful medical users, if their position prevails.

Now, obviously, this is all an effort in, sort of, counter-factual speculation, so the numbers may be a bit off.

But they suggest that our own government numbers are somehow better, and they cite them on page 18 of the red brief.

But the only numbers on the red brief for California suggest that, in the four counties for which there are data, there was….5 percent of the people use marijuana.

Now, if you extend that out statewide to the 34 million people in California, that gives you 170,000 people.

So their numbers… using the government numbers actually give you more potentially affected people.

I think in trying to figure out how many people would be affected, it’s worth considering what medical conditions are covered.

And this responds to Justice Kennedy’s last question, Is this just limited to AIDS or people with terminal cancer?

And it’s not.

And if you want to look at what is covered as serious medical condition under the statute, you can turn to page 7(a) of the red brief, in the appendix to the red brief, and it suggests that a serious medical condition… there’s a catchall at the end that includes subsection 12…

“Any other chronic or persistent medical system that, if not alleviated, may cause serious harm to the patient’s safety or physical or mental health. “

Now, I think that is an exceedingly broad definition of a serious medical condition for which somebody could be… get a recommendation for marijuana for medical uses.

Another point worth considering, in considering the impact on the federal regulatory regime or the effectiveness of California in preventing any diversion, is to take a look at two cases we cite in our reply brief.

One is the People against Wright.

There’s somebody who’s arrested with 19 ounces, over a pound, of marijuana.

They’re packaged such that he has one small bag in his pocket, six other small bags wrapped with a scale in his backpack, two other larger bags in that backpack, and then a pound wrapped in a shirt in the back of his truck.

And yet the Appellate Court in California said that he was entitled to go to the jury with the theory that that was for medical use.

Paul D. Clement:

The fact that he had a scale, and the fact that it was packaged the way it was, could be explained to the jury because he had just boughten it, and that he used the scale to make sure he wasn’t ripped-off.

I think that shows that it’s going to be very hard to enforce the regulatory regime.

The other case in the reply brief worth mentioning is the Santa Cruz case, because that’s a case where a Federal District Court, after Raich came out, said that it could not enforce the DA and the Controlled Substances Act against a 250-person cooperative.

And that just shows that this is not something that will be limited to one or two users at a time, but will have a substantial impact on the government’s ability to enforce the Controlled Substances Act.

Thank you.

John Paul Stevens:

Thank you, General Clement.

The case is submitted.