All marijuana law reformers recall the case Raich v. Gonzales. This is the Supreme Court’s decision that invokes the Interstate Commerce Clause to support the federal power to ban medical use of marijuana, even if the states allow it. Angel Raich argued that she was growing California marijuana with California seeds in California soil using California water, California sun, California shovels, pots, and implements, for a single Californian (herself) to use solely for medical (i.e. non-commercial) purposes. There was no “interstate” and there was no “commerce”.
Sadly, the Supreme Court, with the concurrence of Justice Antonin Scalia, disagreed, arguing a precedent from Wickard v. Filburn, a 1940s case where a wheat farmer wished to grow a personal store of wheat over what was then a federal rationing program of wheat for the war. In that case, and in Raich, the Supreme Court considered wheat and marijuana both to be fungible – that is, you can’t tell personal wheat or marijuana from commercial wheat or marijuana, and the mere possibility that the personal stash could hit the interstate market puts regulation of both in federal jurisdiction.
Unfortunately, the uber-conservative Justice Scalia is now being penned in by the precedent of his decision. The Obama Administraion, as part of its health care package, included a mandate that requires people to buy health insurance, with fines as punishment for failure to comply. This is anathema to conservatives, who feel (at least when it’s not marijuana) that the federal government has no right to dictate what people buy and sell.
Talking Points Memo reports that Raich may be the petard by which Justice Scalia has hoisted himself:
[Angel] Raich claimed that Congress could not regulate her cultivation of marijuana for personal use because she was ‘entirely separated from the market. The Court rejected that artificial limit on Congress’s commerce power, because “marijuana that is grown at home and possessed for personal use is never more than an instant from the interstate market,” (Scalia, J., concurring in the judgment). The same principle applies here. Because of human susceptibility to disease and accident, we are all potentially never more than an instant from the ‘point of consumption’ of health care.
The Obama administration claims that the exercise of federal power in Raich is at least as legitimate as the insurance mandate, arguing that letting people remain uninsured undercuts regulation of interstate commerce by passing medical costs onto taxpayers. Georgetown legal scholar and outspoken Affordable Care Act opponent Randy Barnett, who represented the plaintiffs in Raich, fears Scalia may buy into this.
Others believe he’ll find a way to oppose the mandate. Their argument goes that Scalia’s decision in Raich was motivated by a partisan desire to “punch some pot smoking hippies in the face,” and that he won’t hesitate to take a different tack when it comes to the health care reform law.
Adam Serwer noted at the time that Scalia may well have an escape hatch: as Judge Henry Hudson noted in his ruling to strike down the mandate, Raich was about regulating “activity” (i.e. growing marijuana in one’s backyard) while the mandate is about regulating “inactivity” (i.e. not buying health insurance). Invoking this could help Scalia fend off charges of inconsistency.