Relentless Pursuit of Wisdom and Liberty

The weblog companion of, dedicated to pondering, "If Patrick Henry could see us now..."

Monday, June 06, 2005

SCOTUS rules on medicinal marijuana

Federalism takes another shot to the jaw:
Federal authorities may prosecute sick people whose doctors prescribe marijuana to ease pain, the Supreme Court ruled Monday, concluding that state laws don't protect users from a federal ban on the drug.
Any newspaper or TV news stories about this decision will most likely center on discussions about drugs - I doubt that many Average Joes will realize that this case isn't about drugs at all, but about the reach of the federal government. Justice Thomas in his dissent provides the money quote (and proves that he's the most reliable originalist and the most ardent defender of federalism on the Court):
If Congress can regulate this under the Commerce Clause, then it can regulate virtually anything--and the Federal Government is no longer one of limited and enumerated powers.
To catch up those who may not be fully aware of the case, a summary: 10 states, including California, have passed laws that allow people to grow, obtain, smoke and/or consume marijuana for medical reasons with a doctor's recommendation and/or prescription. The freedom of citizens of those states to exercise that ability faced a potential threat in the federal Controlled Substances Act. Two petitioners asked a federal court to rule that the CSA didn't apply to legal medicinal uses of marijuana and that federal authorities couldn't prosecute those legal uses. The DoJ said they could and would, the Ninth Circuit ruled that it couldn't, and now the Supremes have handed down their verdict, a 6-3 decision for the federal DoJ (overturning the Ninth's ruling) with Justice Scalia a notable and surprising member of the majority, and Justice O'Connor getting (at least from me) an atta-girl for leading the dissent, along with Justices Rehnquist and Thomas.

I'm far from being a legal or Constitutional scholar, but in case anyone's interested, here's my take. First, a few details about the ruling and the reasoning behind it, according to the majority opinion, written by 85-year-old Justice Stevens. It was based in large part on the precedent of Wickard v. Filburn, a 1942 case that ruled that the federal government could regulate non-commercial activities via the Commerce Clause if it in any way affected interstate commerce. In that case, a farmer was growing wheat on his own land for his own consumption, never intending to sell any of it, neither in intra- or interstate commerce. The Court upheld the federal government's power to regulate that activity (which is to say, to forbid the farmer from doing so), based on the argument that 1) the activity affected demand and 2) he might decide later to sell it, and wheat being a fungible commodity, it would be impossible to enforce existing regulations. The first argument is, IMO, specious because it's tantamount to the federal government unilaterally mandating certain points on the supply/demand curve, much like it does when it enacts price controls, only with a much more diabolical bent. The federal government is basically saying that should the farmer have a personal demand for wheat, he is required to purchase it from the pool of available supply that is subject to interstate commerce regulation. But how is the case of a farmer who doesn't want wheat at all (and therefore doesn't add any demand for the available supply) and isn't forced to buy any different from the case of a farmer who grows his own (and therefore doesn't add any demand for the available supply)? The second argument is no stronger - there the Court is in the business of guessing what might happen rather than interpreting the law according to what does happen. Selling unregulated wheat grown in that manner would be illegal and the farmer would do so at his own risk. Take the Wickard decision and those two arguments to their logical conclusion and you have just prohibited an individual from buying a few acres in Wyoming and becoming completely self-sufficient on that plot of land, never buying or selling anything from or to anyone else anywhere. As improbable as that situation sounds, shouldn't it be within the rights and abilities of Average American Citizens?

So Stevens and the majority applied Wickard to Reich, basically saying that it's the same situation. And for the most part, they are - and both Courts ruled incorrectly (again, IMO). Both Courts ruled that the federal government can, by use of the Commerce Clause, proscribe the possession and personal use of a commodity that's legal under state law to possess and personally use. Hence the damage to federalism and individual liberty, regardless of your stances on drug use and drug prohibition/legalization (two completely different things, by the way).

The conservatives/federalists/originalists I've read so far today are surprised at Scalia's concurring opinion, in which he used an "ends justify the means"-style argument:
Congress may regulate even noneconomic local activity if that regulation is a necessary part of a more general regulation of interstate commerce... Drugs like marijuana are fungible commodities. As the Court explains, marijuana that is grown at home and possessed for personal use is never more than an instant from the interstate market--and this is so whether or not the possession is for medicinal use or lawful use under the laws of a particular State.
This kind of appeal to the Necessary and Proper Clause is a huge surprise coming from a conservative judge, basically affirming the already overused Commerce Clause to encompass anything the federal government wants to regulate, as long as it can cite some kind of link, no matter how obtuse, indirect, and tenuous, to interstate commerce. Basically he's asserting that in order to make some larger regulatory scheme (assuming it's constitutional) effective, Congress has the power to regulate activities which by themselves it would be unconstitutional to regulate. Talk about loopholes. And this business about a legal product (marijuana, wheat, guns, etc.) being only "an instant from the interstate market" is bunk - more guessing what might happen rather than interpreting the law according to what does happen. Thomas takes Scalia to task for this in his dissent:
In Lopez [a case that overturned a federal statute instituting Gun-Free School Zones, which has since been reworded to include only guns "that had traveled in interstate commerce", essentially meaning all guns, and re-passed by Congress --JT], I argued that allowing Congress to regulate intrastate, noncommercial activity under the Commerce Clause would confer on Congress a general "police power" over the Nation. This is no less the case if Congress ties its power to the Necessary and Proper Clause rather than the Commerce Clause. When agents from the Drug Enforcement Administration raided Monson's home, they seized six cannabis plants. If the Federal Government can regulate growing a half-dozen cannabis plants for personal consumption (not because it is interstate commerce, but because it is inextricably bound up with interstate commerce), then Congress' Article I powers--as expanded by the Necessary and Proper Clause--have no meaningful limits. Whether Congress aims at the possession of drugs, guns, or any number of other items, it may continue to appropria[te] state police powers under the guise of "regulating commerce."

One particularly insightful comment I read earlier was that there was no way the Court was going to rule in favor of the individual because to rule that the CSA didn't apply, on Commerce Clause grounds, to medicinal users would have been indistinguishable from ruling that the CSA didn't apply, also on Commerce Clause grounds, to recreational (non-distribution) users - and that just wasn't going to happen. This strikes me as a very good explanation of why Scalia voted the way he did - and lends credence to statements by some libertarians (who aren't that surprised at his vote) that he's less a bona fide originalist as much as someone who sometimes uses originalist arguments to justify his own moral and political positions.

The most laughable quote of Stevens' majority opinion is of course this gem:
[B]ut perhaps even more important than these legal avenues is the democratic process, in which the voices of voters allied with these (California women) may one day be heard in the halls of Congress.
Why is a paean to the democratic process laughable? Because this very case, Raich v. Ashcroft, arose from a state law passed in California as a ballot measure - voted on and passed directly by the voters. The democratic process that Stevens lauds was followed by the people (and in 9 other states besides California) and the Court overturned the result. Heh.

More reading, with much more detailed and insightful comments than I can provide:
Excellent commentary at
More commentary at
Group blog experiment at SCOTUSblog
Another good one I just found via SCOTUSblog is Crime & Federalism
The readers at Reason's Hit & Run are, understandably, a tad miffed
NRO's The Corner is discussing it
Analysis from last December by NRO's Jonathan Adler


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