The Corner

Also Today in California…

The recall is not the only exciting thing happening in California. Today I am

in San Francisco to argue another medical cannabis case before the 9th Circuit

Tuesday morning. This one is Raich v. Ashcroft and you can read

about it here. Three weeks ago (the

day the petition for en banc review of the recall decision was due in the 9th

Circuit), I argued the case of <a

href=””>U.S. v. Oakland Cannabis Buyers

Cooperative. The issue in both cases is whether the enforcement of

the Controlled Substance Act–as applied to these parties–exceeds the powers

of Congress under the Commerce Clause, improperly interferes with the

traditional police power of the State of California to protect the health and

safety of its citizens (thereby violating the Necessary and Proper Clause),

and improperly infringes the fundamental rights of seriously ill people to

alleviate their pain and suffering and preserve their lives without any

compelling justification. While this case was made possible by the Rehnquist

Court’s Commerce Clause jurisprudence (e.g. U.S. v. Lopez and

U.S. v. Morrison) and its willingness to protect state sovereignty

from federal encroachment, it illustrates how the state experimentation

protected by federalism is not just for one particular ideology.

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