Yesterday, the Supreme Court heard oral arguments in the case of Ashcroft v. Raich. The issue is whether the federal government can override state statutes which allow individuals to use marijuana for medical reasons. Professor Jonathan Adler has an excellent discussion of the case and its ramifications here.

Adler mentions several of the legal heavyweights who have weighed in on the case, but omits JLF friend Richard Epstein. He, along with Chip Mellor (the president of the Institute for Justice) argue strongly in their amicus curiae brief that the Court should overrule the New Deal era case that the feds are relying on: Wickard v. Filburn. Wickard is the case that allows Congress to regulate just about every kind of activity, no matter how localized, on the grounds that if enough people did what they wanted to do, that could have some impact on interstate commerce. In Wickard, a farmer in Ohio was penalized for growing more wheat than he was allowed to, even though all of the wheat was consumed on his own farm. The Supreme Court, then at the apogee of its anti economic freedom and property rights jurisprudence, said that if farmers were permitted to grow as much wheat of their own as they wanted to, they would purchase less wheat elsewhere, and that could have a “substantial impact” on the interstate wheat market. Therefore Congress was regulating “interstate commerce” and within its constitutional powers.

This is an awful decision that pulls the rug out from under the notion of federalism. Whenever the Court gets around to ruling, it will be both interesting and important. I don’t know what effect the absence of Chief Justice Rehnquist will have.