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On Septeber 17th, Randy Barnett will argue before the U.S. Court of Appeals for the Ninth Circuit, that federal laws prohibiting the intrastate possession, use, and distribution of medical marijuana exceed the scope of the commerce clause and are therefore unconstitutional. He outlines the claims here, and documents related to the case are posted here. As Randy rightly notes, this case could test whether judicial federalism is for real.
DOES THE FEDERALISM REVOLUTION SWING BOTH WAYS? [Randy Barnett] The oral argument for the OCBC medical cannabis case before the Ninth Circuit has been scheduled for September 17th. I am in San Jose today for a moot court at Santa Clara Law School to prepare for the argument. The case raises three significant constitutional issues: 1. Has the government exceeded its powers under the Commerce Clause by trying to prohibit the wholly intrastate acquisition, use, and distribution of medical cannabis that is lawful under California state law-- without any showing that this class substantially affects interstate commerce?
2. Does the injunction in OCBC improperly interfere with the police power of the State of California to protect the health and safety of its citizens--a power that the national government lacks. The police power includes the power to say YES as well as NO, with respect to activities that take place wholly within its borders and that do not interfere with interstate commerce?
3. Does the injunction violate the fundamental rights of the OCBC members to ameliorate unnecessary pain and suffering and to consult and follow the recommendations of their physicians?
Ultimately, if we prevail in the Ninth Circuit, this will put the conservatives on the Supreme Court to the test: is their federalism revival applicable to issues of policy where they may strongly disapprove with what the states are doing? Does the federalism door swing both ways? But first, of course, we have to win in the Ninth Circuit.
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