June 06, 2005

Rational Basis For Upholding Raich

by Sean Sirrine

I have a post up over at Objective Justice that briefly describes the reasoning of the Court in the majority opinion. I don't want to repeat that here, but I do want to ask the same questions here as I did there:

I'd like to note that one things strike me as surprisingly absent in the discussion of the Raich opinion:

In Raich, the Constitutional right of medical necessity was not considered because it wasn't addressed by the 9th Circuit. I'm not advocating that the Justices should have ruled on this technically unadressable factor, but it does leave some room for rumination. If the 9th Circuit had found a Constitutional right to marijuana for medicinal purposes, would strict scrutiny have been applied? If strict scrutiny was applied, would the federal government lose this case?

Even if you can think of no way in which a Constitutional right could have been developed in the Raich case, there is no reason to believe that it won't come up in the future. So, when you hear or see someone say that this is the end of the medicinal marijuana argument, guess again.

Anyone who has any pointers as to why strict scrutiny could not be applied, or why the federal government would still win the case if it was applied, please leave some comments.

Also, my post the other day relating to dispute over the economic effect of medicinal marijuana becomes completely moot under a rational basis test. The fact that the economy would be changed in one-way or another, (which everyone seems to agree on), puts medicinal marijuana squarely under the authority of the Commerce Clause.

[Update: Medical necessity is not a defense as shown by the opinion in UNITED STATES v. OAKLAND CANNABIS BUYERSí COOPERATIVE et al. That doesn't mean, however, that there isn't a defense that could require strict scrutiny.]

[Update #2: Lawrence Solum has an excerpt from his posts on Raich over at the Legal Theory Blog at SCOTUSblog. In his post he discusses the rational basis test.]

June 6, 2005 08:14 PM | TrackBack
Comments

Regarding Oakland, Justice John Paul Stevens' concurring opinion, which was joined by Justices David H. Souter and Ruth Bader Ginsburg, argued that "[b]ecause necessity was raised in this case as a defense to distribution, the Court need not venture an opinion on whether the defense is available to anyone other than distributors."

So he's not being a complete jerk when he mentions the medical necessity defense as a possibility for people who are the consumers of marijuana, though I still think it's a crappy out because it's only a a defense against prosecution; it won't prevent the feds from destroying your plants, and if the people growing pot for Angel Raich have no defense, she still won't have access to it either.

Posted by: PG at June 6, 2005 11:48 PM
Post a comment









Remember personal info?






Sitting in Review
Armen (e-mail) #
PG (e-mail) #
Craig Konnoth (e-mail) #
About Us
Senior Status