More Con Law -- A Raich Effect on Gonzalez?

In personal correspondence, in response to my earlier post on Oregon v. Gonzalez, Armand, of Bloodless Coup, writes:

what kind of impact, if any, will the coming ruling in Raich v. Ashcroft have on the way that the Court will rule on this NEXT term.

Later, after for a few hours over a series of messages I did what all lawyers do when they don't have a clearly correct answer -- stall -- Armand added:

from what I remember of the coverage, the majority of reports of the argument figured the feds would win raich, though there were a couple of things on legal blogs that raised some point suggesting that wasn't a certainty.

To provide a very brief recap, in Raich, the DOJ contended that the federal government's Constrolled Substances Act (CSA) enforcement authority extended to prevent individual patients from cultivating, harvesting, and using their own medicinal marijuana supplies under a physician's prescription -- something California law would permit. Congress, however, is a body of enumerated powers, and all such exercises of federal power must have some source in the constition. The principal question -- and it's no small one -- thus is whether Congress's power under the Commerce Clause (providing some congressional authority to regulate interstate commerce) of the United States Constitution trumps California's own effort to regulate the practices of its own physicians. Much much more on Raich can be found here, and I won't attempt to restate it.

Regarding the degree to which the outcome is predestined, I think there are questions. Lawrence Solum at Legal Theory Blog lacks confidence in his own impressions:

So how will Ashcroft v. Raich come out? I don’t know. I got a sense that O’Connor, Ginsburg, and perhaps Stevens were quite sympathetic to the respondents. Based on his questions, Justice Kennedy seemed quite favorable to the government. One would guess that Justice Thomas will be the hardest member of the Court for the government to win. One might also guess that it will be hard for the petititoners to win Souter or Bryer, who both are very skeptical of Lopez and Morrison. Justice Rehnquist is hard to call. We didn’t hear from him. One suspects he is both pro-federalism/state power and pro-federal regulation of drugs. One can imagine this case coming out 5-4 either way. Before argument, I would have said it could be 9-0 either way, but if I allow myself the dangerous pleasure of reading the tea leaves, I now think that is unlikely.

Opinions, however, vary. Of course, the aforeprovided links are way more insightful, knowledgeable, and so on than I, but I did read the entire transcript of oral argument (see the Salon link for a link to the .pdf), and if anyone were to ask me, I'd have to say that it looked to me like Kennedy, Scalia, Breyer, and Souter were all pretty favorable to the government's position. Indeed, I think Breyer and Souter both were passingly nasty toward Randy Barnett, Volokh Conspiracy regular and Supreme Court counsel to respondents. That leaves Thomas and Rehnquist. The former, who as a matter of tradition (what tradition, no one knows) almost never participates in oral argument, predictably asked not a single question of the Raich parties. He is, however, a justice notably inclined toward minimization of federal authority -- even more stalwart on this, I dare say, than Rehnquist, whose name is destined to adorn the federalism revolution that has characterized his stewardship of the Court. Rehnquist, however, also is squeamish about permitting expansions in federal authority. His predisposition, if any, is hard to discern, since he failed to attend the Raich argument due to his illness and thus participated in oral argument precisely as much as Justice Thomas did.

After all of this, however, the basic answer to Armand's first question: it's hard to say. On the one hand, the federal authority at issue is different, even though both cases operate under the CSA's ambit. In Raich, as Armand correctly emphasized back in November, the question presented is a very narrow question of Congress's power under the Commerce Clause. Best I can tell, no Commerce Clause question is directly presented by Oregon v. Gonzales.

In order to rule for the government in Raich, the Supreme Court either will have to repudiate (or tacitly eviscerate) its prior decisions in Morrison and Lopez both of which appeared to reign in the Commerce Clause. In those two cases, the Court found too little effect on Commerce to permit Congress to pass laws governing, in the former case, violence against women and, in the latter case, possession of firearms near schools. Where guns are found to have an insufficient, or a sufficiently attenuated, connection to interstate commerce to permit Congressional intervention, then marijuana grown in someone's backyard for her own use appears to lack a sufficient connection as well.

In Gonzalez, on the other hand, what's in question is the federal government's authority under the CSA to rescind a physician's license to prescribe medication in the event the physician prescribes lethal medication to his patient in accord with Oregon's Death with Dignity Act. That's not about the Commerce Clause, or at least that's not the question presented.

Both questions, however, concern the coverage of the CSA. Finally, as Solum posits, the Raich decision may well be decided on very narrow grounds by a 5-4 vote, or perhaps even some more splintered coalition centered around a plurality rationale. For that reason alone, I think it's unlikely that its reasoning will bear directly on Gonzalez, where the question isn't whether a statute's reach as asserted by the government is consistent with the Commerce Clause, but rather whether the statute authorizes the federal government to deny physicians who follow state law (the traditional source of regulatory authority for the practice of medicine) their ability to prescribe pharmaceuticals, one of the most important tools of their trade. Roughly speaking, it's the difference between an attack on the CSA's validity (albeit in a narrow subset of its larger undisputed coverage area) vs. an attack on the DOJ's authority under the CSA to regulate, in effect, the practice of medicine to an extent preempting state law.

One very distinct difference is that, with Rehnquist perhaps casting the decisive vote in Raich, a role probably played by his successor in Gonzalez, any ego-driven concerns about Rehnquist's legacy as Chief Justice may affect his decision in the former but not the latter. His has been a tremendously influential run, rivaling in one commentator's view (can't remember which one) the import of the Marshall (Marbury v. Madison / judicial review) and Warren (civil liberties) eras. His legacy has been built redefining the relationship of the federal government and the states, largely in routing tremendous power back to the states reversing a trend toward broad federal regulation dating back to the New Deal. A decision for the government in Raich, at least debatably, would undue a great deal of his work in that area. That's a whole lot of quiet pressure that won't be on the shoulder of the new justice we are very likely to have next year. That's the X-factor.

All of that said, it is more than a little difficult to imagine this particular Supreme Court ruling in favor of homosexual sodomy and liberalization of marijuana laws in one twelve-month period. Here's hoping . . .

UPDATE: Pete Guither over at DrugWarRant also acknowledges the potential relationship between this year's pending decision in Raich and next year's consideration of Oregon v. Gonzalez. (He also links this post. Welcome, DrugWarRant readers. Make yourselves at home.)