Posted by Randy Barnett:
ACS blog on Medical Cannabis case:
Yesterday, the government filed its brief in [1]Ashcroft v. Raich, the
medical cannabis case I have been litigating, which is now before the
Supreme Court. It contained no surprises but it continues to be
disappointing to witness a Republican administration so completely
uninterested in federalism (just as it was disappointing when the
Clinton Justice Department brought suit in equity to shut down the
Oakland Cannabis Buyers Cooperative, another pro bono client of mine).
I realize that disappointment is only an appropriate response if one
expects something better or different, and I do know better.
Federalism diminishes the power of whichever party controls the
Congress or Presidency or both. (And elected Democrats apparently do
not think they can afford to look soft on drugs.) But it is still
sad--and yes even a bit disappointing--that neither of the two major
national parties has any genuine convictions in support of a principal
so central to our constitutional system.
Along these same lines, today the American Constitution Society has
[2]this post up about Ashcroft v. Raich on its blog:
In the wake of Morrison, Senator Joseph Biden compared the new
federalism to the pre-New Deal Lochner era:
"In both eras, the Court adopted these formalistic distinctions in
interpreting the Commerce Clause in service of broader political
theories shared by a majority of the Court's members. In the
pre-New Deal era, that broader political theory was laissez faire
economics; now it is the new federalism. In both instances, the
Court has been eager to substitute its own judgment for that of the
political branches democratically elected by the people to do their
business."
Raich has given the Rehnquist majority an opportunity to prove
Senator Biden wrong. By affirming the Ninth Circuit's decision, the
Court will demonstrate an ability to uniformly interpret the
Constitution, even when they dislike the outcome.
And so we shall argue.
References
1. http://www.raich-v-ashcroft.com/
2.
http://www.acsblog.org/federalism-91-when-conservative-doctrines-collide-medical-marijuana-meets-federalism.html
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