Ask the Professor

Medical Marijuana

How Will the Court Rule?

Richard Fallon
Professor Richard H. Fallon is author of "The Dynamic
Constitution" (Cambridge University Press, 2004).

This winter, the U.S. Supreme Court will hear arguments in a tug-of-war between the states and the federal government over drug policy. In Ashcroft v. Raich, the Bush administration is appealing the case it lost against two California women who sued after homegrown marijuana, prescribed for chronic pain under the state's Compassionate Use law, was confiscated under the federal Controlled Substances Act. The Ninth U.S. Circuit Court of Appeals held that the application of the act exceeded the power of Congress to regulate under the Commerce Clause. The administration is claiming that the ruling "seriously undermines Congress' comprehensive scheme for the regulation of drugs." We asked constitutional law expert Professor Richard H. Fallon to predict how the Court will rule.

"In recent years," said Fallon, "the Court has been conducting an ongoing debate about congressional power under the Commerce Clause, with five of the justices looking for opportunities to trim it back. In the context of that debate, I don't think it is going to matter much that a big public and political controversy surrounds the medical use of marijuana. The key question is likely to involve what other congressional powers the justices think are at stake and whether they would be happy or willing to see those other powers reduced.

"Of the five justices who have been most eager to limit congressional power under the Commerce Clause in other contexts (Rehnquist, O'Connor, Kennedy, Scalia and Thomas), I think at least some will see this as a case about congressional power to regulate the home cultivation or manufacture of extremely dangerous drugs for which there is an interstate market, including cocaine and LSD, and not just medical marijuana. I don't think they will want to throw the constitutionality of federal antidrug regulation generally into question.

"And my guess would be that the four justices who have generally defended broad congressional regulatory power under the Commerce Clause (Stevens, Souter, Ginsburg and Breyer) will stick to their position, even if they are personally sympathetic to medical marijuana users. For them, I think, this will be more a case about Congress' power to regulate such things as domestic violence occurring in the home and other individually private activities that have a cumulative effect on interstate commerce than about medical marijuana use.

"There may be a few votes for the view that Congress overstepped its powers here, but I would be surprised if there are more. Of course, I could easily be wrong. As Yogi Berra once said, 'Predictions are risky, especially when they are about the future.'"


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