Raich involved a challenge to the application of federal drug laws to those Californians who by state law are authorized to use marijuana under a doctor's care for relief of symptoms that do not respond to conventional medicines. Even though the marijuana provided was grown entirely within California and was provided to patients without being bought, sold, or bartered, six members of the Court said such patients could be federally prosecuted as a valid exercise of Congress' regulatory power over interstate commerce. But there was nothing either interstate or commercial. It's like the old saw, if we had some ham, we could have some ham and eggs, if we had eggs. Writing for the Court's majority, Justice John Paul Stevens relied heavily on Wickard v. Filburn, a 1942 decision, which federally limited the amount of wheat a farmer could grow on his own farm for his own family's consumption. By the Court's own characterization, Wickard pressed the outer limits of federal power. In Raich, the Court extended federal power even beyond those limits by holding that Congress could prevent a woman with a brain tumor from using a homegrown substance to survive.

Harsh? Yes. Unconstitutional? Apparently not to six members of the Court. What would a Justice Roberts do? His opinions on the D.C. Circuit suggest he would be respectful of Congress' judgment when it was warranted to meet a truly national problem beyond the individual competencies of the states. But where, as in the Raich case, Congress itself makes no findings about the effect of medicinal marijuana use on federal efforts to control the recreational use of marijuana, I suspect Justice Roberts would likely ask for more than conclusory assertion of power. It is not enough for the Court to conclude that Congress could have concluded there was a supervening national problem, even if it didn't and even if no actual proof was offered that it could.