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
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.