Ashcroft v. Raich

Is a farmer who raises a crop for personal use subject to federal regulation? This question was first raised in Wickard v. Filburn
in 1941 and is the question before the court in Ashcroft v. Raich (the medical marijuana case).  Leaving aside the emotional appeal of Raich's and Monson's plight, this is a case progressives should be wary of. This case could have as much an impact as a case overturning Roe v. Wade.  Watch this case closely.

Wickard is the seminal commerce clause case of the 20th century. It stands for the proposition that Congress may regulate local activity that was an essential part of a larger regulation of economic activity where the regulatory scheme could be undercut by the local activity unless the intrastate activity was regulated. Putting it another way, if the activity affects the stream of commerce in the aggregate, congress may, under the interstate commerce clause of the constitution regulate the local activity.   Lawyers are taught in studying this case that Roscoe Filburn was an Ohio farmer who raised wheat for personal consumption and the court found that he was subject to congressional regulation (the Agricultural Adjustment Act of 1936). Wickard is the foundation that Congress used to  resolve such matters as public accommodation issues in the civil rights acts of the 1960's, which resulted in landmark cases requiring hotels and restaurants to serve all regardless of race ( Heart of Atlanta Motel and McClung ).  

If you accept the premise that government economic regulation is not per se a bad thing (i.e. you are not Grover Norquist or Stephen Moore) and that national government economic regulation may be beneficial or even necessary, then Wickard as commonly understood is a precedent that progressives should embrace. The Rehnquist, Thomas, Scalia faction  (and the large corporate interests they represent) despise government economic regulation and needless to say, Wickard.

Their aim is to undermine Wickard and their efforts have come to fruition with Virginia v. Lopez
 (regulation of carrying guns near schools) and US v. Morrison (Violence Against Women Act).  Justice Souter dissented vigorously in the latter case and argued that the majority had implicitly overruled Wickard, a claim the majority denied.

This brings us to Raich. Ashcroft has been placed in the position of arguing that Wickard is good law and gives the federal government the power to ban by regulation all marijuana use. Raich and Monsoon, are arguing that Morrison is controlling and there is no interstate commerce connection in their production and personal consumption of marijuana.  Raich's attorneys have not called for overruling Wickard and have gone to some lengths to distinguish their case from Wickard, pointing out, that the common understanding of Wickard, not withstanding, Roscoe Filburn was not a raising wheat for his personal consumption (to consume the excess 239 bushels of wheat Filburn had grown, the Filburns would have to eat 44 one pound loves of bread everyday for the following year).  If the court rules in favor of Ashcroft, they will breathe life into a doctrine of law that is near dead, if not dead. Ruling in favor of Raich, will not endear them to most conservatives. The liberal faction (if they can be called that) have the opposite problem.