It appears that both sides of the argument did well, but (if Solum’s account is accurate) Randy Barnett did brilliantly (with the harder side). Here is the most interesting exchange for me:
Souter: Suppose that 100,000 people are in chemotherapy in California. Then couldn’t there be 100,000 users of medical marijuana?
Barnett: There could be.
Souter: If there are 34 million people in California, then there could be 100,000 people in chemotherapy.
Barnett: It is important to remember that the law confines medical cannabis use to the people who are sick and have a physicians recommendation. Wickard v. Filburn’s aggregation principle does not apply if the activity involved is noneconomic.
Souter: But isn’t the argument that it is economic activity if it has a sizeable effect on the market?
Barnett: No. The effect on the market is only relevant if it is market activity.
Souter: But in Lopez wasn’t the effect on the market much more remote than the effect involved in this case?
Barnett: The point is that economic activity and personal liberty are two different categories.
Souter: That is not a very realistic premise.
Barnett: The premise is that it is possible to differentiate economic activity from personal activity. Prostitution is economic activity, and there may be some cross substitution effects between prostitution and sex within marriage, but that does not make sex within marriage economic activity. You look at the nature of the activity to determine whether or not it is economic.
That is probably the best analogy I have ever heard. Period. If it isn’t clear already, this is the medical marijuana case, Ashcroft vs. Raich. The case focuses on the Justice Department’s overzealous prosecution of medical marijuana users in states where possessing marijuana for medicinal uses is legal. So, in short, it not only decides the legal fate of hundreds of terminally ill patients, but also the future of federalism in America. If the court rules in favor of Raich, it will significantly further the Rehnquist court’s recent push towards greater state’s rights (not a euphemism). If it rules in favor of Ashcroft, it will lead to the extreme interpretation of the commerce clause that has always been hoped for by non-traditional conservatives (i.e. Scalia). In short, it’s the autonomy of states vs. the power of the federal government to do whatever it pleases. So, good luck to Randy Barnett. Let’s hope he prevails.