Transcripts of U.S. Supreme Court Oral Arguments in the Case of Ashcroft v. Raich

 (Taken from transcripts and notes taken and presented by

Lawrence B. Solum, Esq., Professor of Law, University of San Diego)

Arguing for U.S.: Paul D. Clement, Acting Solicitor General of the United States

Arguing for the Respondent (Raich): Randy E. Barnett, Austin B. Fletcher Professor of Law, Boston University School of Law

Transcript Caveat by Professor Solum: "The following notes on the oral argument are only notes. In some cases, I was unable to transcribe a question or answer. In almost every case, my notes use some phrases from the actual exchange, but also substitute my own words to convey the “sense” of what I heard as I understood it."


Petitioner's Argument

"Paul Clement has the demeanor of a quiet and thoughtful man—an appellate lawyer’s appellate lawyer.... He begins by arguing that 'Congress has comprehensively regulated drugs through the Controlled Substances Act.' No sooner does he begin, than Justice O’Connor interrupts:
Justice O’Connor But do not our decisions in Lopez and Morrison dictate concerns in this context?
Clement But those decisions preserved this Court’s Darby and Wickard decisions, which validate the statute here.
Justice O’Connor But shouldn’t we assume that California will enforce its law against the sale or transportation of marijuana for nonmedical purposes?
Clement Marijuana is a fungible product and there is a national market in this drug.
Justice O’Connor Suppose there was a finding by the District Court that there was no diversion from the medical market to the illegal market?
Clement That would be irrelevant.
Justice O’Connor But what would happen in my hypo?
Clement This Court in a series of cases has made it clear that it is not the conduct of the individual plaintiff, but the class of activities that Congress has chosen to regulate that is relevant.
Justice Scalia But isn’t it the case that Congress doesn’t want interstate commerce in marijuana? How does this regulation serve that end?
Clement Since the Lottery Case, it has been clear that Congress has the authority to ban a contraband from interstate commerce.
Justice Scalia But that is not the same rationale as Wickard. You rely on Wickard to prohibit marijuana in order to reduce demand for the interstate market.
Clement The reality is that there is a 10.5 billion dollar market for marijuana.
Justice Scalia Suppose hypothetically, there was no diversion.
Clement The problems are parallel.
Justice Kennedy What about the Perez case in which Congress banned loan sharking?
Justice Ginsberg This not commercial activity, is it?
Clement This is economic activity, but not commercial activity. It is like the production of wheat.
Justice Souter We can’t generalize from these plaintiffs, can we? Other medical users may purchase their cannabis from the illegal market?
Justice O’Connor Wasn’t the wheat in Filburn in the interstate market? Not all of it was consumed on the farm.
Clement The wheat was consumed on the farm.
Justice O’Connor The disposition of the particular wheat at issue in Filburn was not certain, but the case involved wheat consumed by the farmer as his own bread.
Justice Kennedy Is this a harder or easier case than Filburn, given that the substance here is illegal?
Clement Easier, because Congress can prohibit contraband. Marijuana is fungible, and Congress could conclude that any island of lawful possession is a threat to regulation of the contraband. Moreover, the legitimate use has been made available to patients in the form of a THC pill, Marinol.
Justice Ginsberg But on this record, isn’t their evidence that the pill does not work. Would the patients have any defense if they were criminally prosecuted?
Clement The Oakland Cannabis Buyers Club case, as we read it and some members of this Court may disagree, rejects a medical necessity defense. But there is a deeper flaw in Respondent’s position: there is a mismatch between the California law and the argument that this conduct does not involve interstate commerce. California provides a defense even to those who purchase marijuana from the illegal interstate market.
Justice Stevens Yes, under the commerce clause, there can be no as applied challenge.
Clement Yes, under the commerce clause, there can be no as applied challenge.
Justice O'Connor In Morrison didn’t we say that the Commerce Clause does not reach noneconomic activity that only affects commerce through a “but for” causal chain?
Clement In Morrison, the activity was noneconomic.
Justice O'Connor Isn’t this activity noneconomic, because the marijuana here was grown for personal use?
Clement But Wickard v. Filburn is indistinguishable.
Justice Kennedy If we rule for the plaintiff’s wouldn’t the price for marijuana go down?
Clement Yes, the price would go down. Congress is trying to increase the price for marijuana by creating a black market. Marinol provides a safe version of THC, and that provides a hook for the application of Congress’s Commerce Clause power. The statute trumps the individual physician’s determination that raw marijuana is medically necessary. The federal regulations do not allow doctors to make such a determination.
Justice Stevens Can we ignore a district court finding that marijuana is medically beneficial?
Clement It depends. If the context is review of the scheduling decision, then the medical evidence would be relevant. The FDA has no inherent hostility to THC; it has rescheduled marinol from the schedule 2 to schedule 3.
Justice Ginsberg Have there been any challenges to marijuana’s position on schedule one?
Clement Yes. Efforts have been made. The Institute of Medicine Study made it clear that smoked raw marijuana has no future as a legitimate pharmaceutical. Rather, we would take the raw material and synthesize the medically beneficial ingredients. This is because smoking marijuana is harmful.
Justice Souter If the Respondent’s argument succeeds then we would have the question whether recreational use would be covered by our ruling. In deciding what the appropriate subclass might be, can’t we take into account the health benefits of medical marijuana?
Clement It would not be a good idea for the courts to second guess Congress."
Respondent's Argument

"Clement’s argument ended with his reservation of time for rebuttal. The oralist for the Respondent is Randy Barnett—familiar to many readers of Legal Theory Blog as a member of the Volokh Conspiracy and a distinguished constitutional law scholar. Barnett begins:
Barnett May it please the Court, I have two points. The first point is that the activity involved here is wholly intrastate and noneconomic in nature. The second point is that regulation of this activity is not essential to a broader regulatory scheme.
Justice Kennedy But isn’t simple possession part of the market.
Barnett It depends on the facts. Possession of marijuana for sale or after purchase is part of the market, but possession of home grown marijuana for personal medical use is not.
Justice Kennedy But isn’t simple possession part of the market.
Barnett It depends on the facts. Possession of marijuana for sale or after purchase is part of the market, but possession of home grown marijuana for personal medical use is not.
Justice Kennedy But isn’t marijuana fungible?
Barnett Fungibility is at issue in this case, but the fungibility of marijuana does not speak to the question whether possession of marijuana for personal medical use is economic activity.
Justice Scalia What about the Endangered Species Act? Can Congress reach possession of a individual member of an endangered species if there is no economic activity.
Barnett That might be essential to a broader regulatory scheme, but in this case the medical use of marijuana is isolated by state law from the interstate market.
Justice Scalia What is the basis for narrowing the category of activity in that way?
Barnett The State of California has narrowed the class of activity by authorizing only medical cannabis.
Justice Scalia But isn’t it true that among the users of medical cannabis are whole communes with lots of people in them smoking marijuana.
Justice Breyer I haven’t been able to understand why it would be that Congress has no power when the state acts. Why would state regulation limit federal power?
Barnett The federal government can only reach noneconomic activity if the state’s authorization of that activity would undermine a broader scheme for the regulation of interstate commerce. The state statute isolates medical cannabis from the larger recreational market.
Justice Breyer What if a state were to authorize use of cocaine or heroin or genetically modified tomatoes that Congress believed were harmful to health?
Barnett Congress could reach such noneconomic activity if it were essential to a broader regulatory scheme.
Justice Breyer So you are asking us to compare the state and federal schemes and to determine whether the it is essential to the federal scheme in light of what the state scheme does. That sounds difficult for this court to do. The government is arguing in this case that large numbers of consumers will use medical marijuana, and hence that lower prices will undermine the federal scheme. We won’t know what effect the state law will have on the federal scheme. Won’t that be a mess?
Barnett There are two points in your question. (1) whether numbers of medical users will be large, and (2) whether it will be possible to identify medical users and hence distinguish them from recreational users. On the first point, the numbers are very small. The government quotes the National Organization for Marijuana Laws for their figure of 100,000. We quote the official government figures showing the number is insignificant. These people are taken out of the illegal market by the California law.
Justice Breyer But isn’t the effect for Congress to decide?
Barnett There is a threshold issue. If this is noneconomic activity, then it can only regulated if essential to a broader regulatory scheme.
Justice Kennedy But isn’t this just like baking bread or washing dishes, which our cases show is an economic activity?
Barnett Those can be economic activities if they are part of a commercial enterprise, but the government’s position leads to the conclusion that washing dishes at home is economic.
Justice Souter Assume there are 100,000 users, under the California statute, can’t they buy it on the street? The statute does not differentiate between possession of homegrown and street-bought marijuana.
Barnett But medical users have every incentive not buy marijuana on the street. They can be prosecuted for buying it on the street.
Justice Souter Couldn’t it be the case that millions of medical users would be buying marijuana on the street?
Justice Ginsberg If we rule for you, why wouldn’t our ruling cover someone in a neighboring state who grew their own marijuana for medical use even though the state had not authorized it?
Barnett There are two different answers to this question. First, assuming this Court does not create an “essential to a broader regulatory scheme” exception to Lopez and Morrison, then your ruling would reach noneconomic medical use in states that have not authorized medical cannabis use. Second, if you do recognize the “essential to a broader regulatory scheme” exception, then the question is whether the lack of authorization makes a difference. California, for example, will issue ID cards that will help to isolate medical use from the interstate market.
Justice Ginsberg But there are no ID cards now.
Barnett But the Court should trust the state to take those measures necessary so that the state authorization serves its intended purpose.
Justice Breyer Now I think I understand your position. You are arguing that if the activity is noneconomic, then Congress can only reach it under the “essential to a broader regulatory scheme” exception. But then doesn’t the Morrison case go my way, on the theory that the regulations challenged there were essential to a broader scheme.
Barnett That’s why the “essential to a broader regulatory scheme” exception must be interpreted narrowly—so that it is consistent with Morrison.
Justice Breyer But isn’t the connection to the market closer than in Morrison?
Barnett But here, unlike Lopez where the gun was from interstate commerce, the marijuana is wholly intrastate.
Justice Scalia If there had been an interstate connection in Lopez, wouldn’t we come out there other way?
Barnett But here there is no interstate connection.
Justice Scalia That sounds like Wickard v. Filburn, where the family was eating the wheat they grew on their own farm.
Barnett If the only activity relating to wheat on the Filburn farm was eating it at the family dinner table, the case would never have been brought.
Justice Scalia Isn’t that exactly what Wickard v. Filburn was about? I don’t think you’ve characterized that case fairly.
Barnett The phrase 'home consumed' in context meant consumed on the farm, by feeding to livestock, etc.
Justice Breyer But wasn’t homegrown and consumed wheat still regulated, irrespective of the particular use? The question was whether it 'exerted substantial economic effect'.
Barnett At that time, the Court was using the narrower definition of 'commerce' that Justice Thomas has argued for. What we would call it today is 'economic activity.' Filburn was engaged in economic action as part of a commercial farming enterprise.
Justice Scalia So why isn’t this economic activity?
Barnett In Wickard v. Filburn the wheat was grown as part of a commercial enterprise and fed to livestock sold on the market.
Justice Stevens What is your view on the effect of the state law on the interstate market? Increase prices, no effect on prices, or decrease in prices?
Barnett Can I choose trivial reduction of price?
Justice Stevens If you reduce demand, then you will reduce prices? Wouldn’t it increase prices?
Barnett No, if you reduce demand, you reduce price.
Justice Stevens Are you sure?
Barnett Yes.
Justice Souter Suppose that 100,000 people are in chemotherapy in California. Then couldn’t there be 100,000 users of medical marijuana?
Barnett There could be.
Justice Souter If there are 34 million people in California, then there could be 100,000 people in chemotherapy.
Barnett It is important to remember that the law confines medical cannabis use to the people who are sick and have a physicians recommendation. Wickard v. Filburn’s aggregation principle does not apply if the activity involved is noneconomic.
Justice Souter But isn’t the argument that it is economic activity if it has a sizeable effect on the market?
Barnett No. The effect on the market is only relevant if it is market activity.
Justice Souter But in Lopez wasn’t the effect on the market much more remote than the effect involved in this case?
Barnett The point is that economic activity and personal liberty are two different categories.
Justice Souter That is not a very realistic premise.
Barnett The premise is that it is possible to differentiate economic activity from personal activity. Prostitution is economic activity, and there may be some cross substitution effects between prostitution and sex within marriage, but that does not make sex within marriage economic activity. You look at the nature of the activity to determine whether or not it is economic.
Justice Breyer If marijuana is medically helpful, can’t your clients go to the FDA and get it rescheduled. Then if the FDA rules against them, they can go to court and the FDA ruling can be reviewed for abuse of discretion. And if there is no abuse of discretion, then wouldn’t I believe as a judge and an individual that it is doubtful there is a medical benefit? Is medicine by regulation better than medicine by referendum?
Barnett I would simply ask you to read the account of obstruction of research in the amicus brief and the Institute for Medicine report cited by both us and the government. It is true that marijuana is smoked, but that is because it saves the lives of some sick people.
Justice Kennedy Are prescriptions limited to cases where marijuana is life saving?
Barnett It is limited to a list of illnesses.
Justice Ginsberg I have procedural question. You’ve asked for an injunction against criminal prosecutions. Isn’t there an equitable principle against enjoining criminal prosecutions?
Barnett We’ve also asked for an injunction against the seizure of marijuana, which has occurred in this case. Such seizures put the supply at jeopardy."
Petitioner’s Rebuttal


Clement "Respondent wishes the Court to believe that medical cannabis is hermetically sealed, but the state law is not designed to limit the class of authorized activity to the intrastate noncommercial marijuana. We have cited the NORML figure which indicates that there are 100,000 users. The Respondent’s brief indicates that .5% of the population uses medical marijuana; that translates into 170,000 users."

[Professor Solum's Note: "This was an embarrassing error on Clement’s part. The government figure cited by Respondent’s was .05% (not .5%)."]

"As to what conditions are covered, the last item on the list includes any other condition that gives rise to chronic and serious harm to physical or mental health. That is a very broad definition. In real world cases, the defense provided by the California law was made available to a defendant who had 19 ounces of marijuana and a scale. That case was allowed to go a jury. In a Santa Cruz case, a 250 person cooperative claimed the benefit of the law. The line between the illegal market and authorized medical use is not practical."