2:50 - The definition of the term "commerce" in Gibbons is at issue. Also, the Necessary and Proper Clause is cited; does it support the legislation? RB says they discuss it in a footnote. There is some chuckling from the audience.
Judge asks whether anything done for gain is economic and charity is noneconomic. RB argues that this is true; feeding your kids breakfast and growing a backyard garden are the examples given.
Another question: could Congress bar the intrastate purchase of certain goods to be used to produce marijuana? Yes, says RB; an as-applied challenge could fail, then, if the seeds or other goods travelled in interstate commerce (Congress can reach those seeds). But judges want to know at what point (how many growing cycles) the effect would become too attentuated.
The as-applied theory has not been used to overturn statutes using a fact specific inquiry.
Judge wants to know the relevance of the fact of medical use. RB says it goes to negate the exception to the "essential to a broader scheme" theory. If a significant number of states adopt this approach, though, a judge says there will be a dramatic effect on the supply and demand for marijuana and thus substantially affect commerce.
RB scores with the audience by pointing out that his brief uses government numbers for the quantity of drug users while the government brief uses third party numbers.
3:00 - Why isn't this rational basis review; it's necessary to regulate noncommercial activity to regulate economic activity. RB says that sort of review would cause the Court to withdraw from the field and undermine Lopez/Morrison.
Judge asks about possession of nuclear weapons entirely assembled within a state. RB says he would treat that separately because it was a direct threat to the instrumentalities of commerce and national security.
The judge says to save Lopez/Morrison they must jettison McCulloch's rational basis scrutiny. RB claims that McCulloch is not inconsistent.
Judges ask, is this a special power of the state because regulation of health is a core state function? Where is the authority for that, Fried wants to know? RB cites some cases dealing with structure of state government. RB says the class is insulated from the larger market and thus Congress need not reach it. But judges doubt whether California regulations will actually insulate the class, given the number of current users of illegal drugs.
3:10 - RB wants the Court to recognize state power to act to preserve the health and welfare of their citizens. One judge thinks that might set off a race to the bottom. RB counters with the federalism as experimental laboratory point.
RB says any item that could serve as a threat to the channels and instrumentalities of commerce can be directly regulated. Judges then say this is about second-guessing Congress's assessment and compares Morrison.
(The actual 30 argument time is up. The judges grant RB 15 more minutes and say it shows they have little regard for precedent. Laughter from the audience.)
Judge asks whether asserting if an act of arson in Jones threatened the power grid or some other instrumentality of commerce, it could be regulated.
Query: if a federal officer learns that someone grows MJ at home, does he have probable cause to arrest? Does the medical provision change the probable cause determination? RB says the burden would be on the arrestee to prove that his use was okay. But judges ask if it is relevant that government might have to know a lot (where the seeds came from, etc.) and thus enforcement would be really hard.
RB says California is free to identify a list of noneconomic activities dealing with other controlled substances and permit them - but only if the home chemistry sets used to cook your meth aren't purchased in interstate commerce.
Judge notes the stress on the complete isolation from commerce in this instance. But wouldn't this mean the CSA is valid in Oregon but not California? RB says the medical classification is crucial to this case.
Fried asks if the government can outlaw prostitution, can it also outlaw "friendly fornication" since it bears on the market for prostitution? Gales of laughter.
Can we save possession laws, asks one judge? RB says even if we do that, it doesn't apply to the facts here.
Last question: judge says brief argues that the statute should not apply and thus the constitutional issue can be avoided; he doesn't buy this because the prescription or order cannot be valid given the Congressional determination that there are no acceptible medical uses. RB says this is a valid order under CA law because it's lawful under CA law. The judge is disbelieving; Jones does not seem to apply.