2:17 - We are hanging out before the debate in Ames Courtroom. Randy Barnett is here already and chatting with the FedSoc leadership (the HLS Federalist Society is a sponsor of the event). The judges (Professors Fried, Parker, Meltzer, Shapiro, Young, and Steve Calabresi) are not all here yet. Only one side will be presented as Ashcroft didn't feel like coming. :)
2:35 - It begins. Ames Courtroom is about 3/4 full. The FedSoc wants to point out that it doesn't take a position on the outcome of the case. Background on the case is read aloud. The issue: does the CSA exceed Congress's Commerce Claus power as applied to medical cannabis use? The announcer wonders if the court will continue the federalist revolution or "retreat into impenetrable nuance." The format will be 45 minutes of oral argument and 15 minutes of critique.
2:41 - Within a minute of the oral argument's beginning, a judge asks whether determining if the activity is economic is the end of the case? Barnett says yes. The judges press him on the economic/noneconomic distinction. The "essential part of a broader scheme" exception only applies to economic activity, according to Barnett.
The Wickard distinction was between commerce and production, says RB. One judge thinks the exception in Wickard "covers this case like a blanket." But: RB says the nonaggregation principle never has been applied to noneconomic activity.
But, says Fried, until Lopez and Morrison, activity could simply affect interstate commerce and be regulated. Substantial effect is the doctrine here, according to RB.
One judge wants to know what criteria would be used to determine if an effect is substantial. RB has no hard answer, but says if the effect is too attenuated it doesn't count. A judge retailiates and says that the inquiry is not over with the economic/noneconomic distinction if they must determine the scope of the effect. RB says he would not disagree with this.