Posted on 05/10/2004 10:50:25 AM PDT by DaveCooper
The Federal war on drugs expands.
At a time when Federal officials should focus obsessively on crushing terrorists, they are expanding the disastrous War on Drugs into an even more pointless war on substances. From old bogeymen like marijuana to new “hazards” like Oxycontin, Washington busybodies are knocking themselves out combating compounds that, by themselves, do not threaten public safety.
The Justice Department has appealed a December 2003 Federal court decision that barred Uncle Sam from impeding Californians who use personally grown, locally cultivated, or charitably donated medical marijuana. In Raich v. Ashcroft, the Ninth Circuit correctly disallowed the Constitution’s commerce-clause rationale for Federal intervention. After all, how can interstate commerce include intrastate, noncommercial activity?
Rather than accept defeat and confront genuine dangers, Attorney General John Ashcroft seeks Supreme Court permission to keep raiding medical-marijuana suppliers and harassing people such as Angel Raich who has used medical marijuana to treat a brain tumor, wasting syndrome, seizures, and more.
Among many others, the Feds also are prosecuting Gary and Anna Barrett. This Victorville, California couple had state permission to grow marijuana to address their respective ailments. He suffers Crohn’s disease, a potentially lethal digestive disease. She uses marijuana to relieve the pain she has endured since surviving a five-story fall from a London hotel balcony during their 1995 honeymoon.
“We are disappointed, but not surprised, that Attorney General Ashcroft has chosen to ask the Supreme Court for what amounts to a license to attack the sick,” said Rob Kampia, executive director of the Washington-based Marijuana Policy Project. “Conservatives should be appalled that the Justice Department is arguing that two patients and their caregivers, growing and using medical marijuana within California — using California seeds, California soil, California water, and California equipment, and engaging in no commercial activity whatsoever — are somehow engaged in ‘interstate commerce.’”
On April 12, the Bush Administration became the first to prohibit a dietary supplement, yet another GOP triumph. Ephedra, an herbal stimulant, helped dieters lose weight — a healthy objective — and energized others, much as does currently legal caffeine. Alas, Sidney Wolfe of the liberal Public Citizen estimates that ephedra has contributed to some 155 deaths since January 1993. But as Reason magazine’s Jacob Sullum notes, “this number is remarkably low given how many people have used ephedra. Until the recent bad publicity cut into sales, the industry estimated that 12 million to 17 million Americans were taking around 3 billion doses a year.”
Sullum compares these 155 possible ephedra deaths spanning 11 years with the Federal Drug Abuse Warning Network’s survey of coroners’ reports. In 1999 alone, DAWN found 811 multiple-drug overdose deaths that included Valium ingestion, 427 fatalities that involved Tylenol, and 104 that entailed aspirin. Why not ban those drugs, too?
The Justice Department led a Federal grand jury to issue a 42-count indictment against: San Francisco Giant Barry Bonds’ personal trainer, Greg Anderson; track coach Remi Korchemny; and Victor Conte, Jr. and James J. Valente, executives of the Bay Area Lab Cooperative. They are accused of giving professional athletes anabolic steroids.
“Illegal steroid use calls into question not only the integrity of the athletes who use them, but also the integrity of the sports that those athletes play,” Ashcroft told reporters February 11. “Steroids are bad for sports, they’re bad for players, they’re bad for young people who hold athletes up as rôle models.”
There you have it: Uncle Sam has seized the responsibility for policing America’s hallowed sports teams and athletes. Who needs the commissioners of baseball and football? Even if steroids were Washington’s business, must the Attorney General spend even three seconds on this? Surely Ashcroft has more pressing items in his inbox. So does every other steroid cop. Ashcroft should scrap this project.
Hydrocodone (Vicodin) is America’s most widely prescribed drug. Doctors prescribed it 100 million times in 2002, according to Patrick Michaels, a senior fellow with the libertarian Cato Institute in Washington.
“Nowadays a physician can prescribe this drug and give patients multiple refills,” Michaels says. “Now, the Drug Enforcement Administration wants you to see your doctor before every refill. Its proposal will require 300 million more doctor’s office visits per year, assuming that one visit today covers two refills. That equals 150 million worker days lost.”
Michaels badly injured his neck in a softball mishap, leaving him in such agony that he wanted to die.
“Unremitting and severe chronic pain creates a very logical decision on the part of the patient not to want to live,” Michaels recalls. “I remember thinking it was stupid to be alive.... Along with 38 million other people, my life was made a heck of a lot more livable with hydrocodone.”
The DEA wants to make hydrocodone a Schedule II drug, track how much of it doctors prescribe, and monitor the amount each patient receives.
“I can assure you,” Michaels warns, “this is going to make doctors reluctant to prescribe the world’s most popular pain reliever.”
“The sanctity of the doctor-patient relationship is being destroyed by Federal bureaucrats, who have turned the Drug War into a war on pain relief,” Rep. Ron Paul, M.D. (R., Tex.) lamented in an April 19 commentary. The Feds have threatened prosecution and loss of medical licenses for physicians who prescribe strong painkillers such as Oxycontin. While some abuse these pharmaceuticals, many more rely on them to ease pain. Nonetheless, Rep. Paul wrote, some doctors no longer prescribe these pharmaceuticals while others “have even posted signs in their waiting rooms advising patients not to ask for Oxycontin and similar drugs.”
Assistant U.S. Attorney Gene Rossi encapsulated Justice’s profound disdain for pain specialists when he declared: “Our office will try our best to root out certain doctors like the Taliban.”
Adults should be free to stimulate, fortify, or medicate themselves however they wish, so long as they simultaneously respect the rights and safety of others. As al Qaeda prepares bloody surprises, it is simply surreal for federal officials to exert even one calorie of collective energy to battle American citizens who trim their waistlines, boost their batting averages, or soothe their pounding nerve endings.
That's what's known as the "aggregation principle". Part and parcel of the New Deal Commerce Clause. There in nothing in the Constitution, or early commerce clause cases to support such an application.
The dissenting judge is still wrong, FDR is still wrong, and you're still wrong right along with them.
And if you do, then why did they give Congress this power in the first place?
I thought the bottom line was "What will help insure that Robertpaulsen's kids never smoke pot?"
Do you really believe that the founding fathers intended Congress to have to power to control everything that an individual citizen might do or own that they imagine might have some conceivable material value to someone else?
Justice Clarence Thomas said the following about the New Deal and the Commerce Clause--
I am aware of no cases prior to the New Deal that characterized the power flowing from the Commerce Clause as sweepingly as does our substantial effects test. My review of the case law indicates that the substantial effects test is but an innovation of the 20th century.
Put simply, much if not all of Art. I, §8 (including portions of the Commerce Clause itself) would be surplusage if Congress had been given authority over matters that substantially affect interstate commerce. An interpretation of cl. 3 that makes the rest of §8 superfluous simply cannot be correct. Yet this Court's Commerce Clause jurisprudence has endorsed just such an interpretation: the power we have accorded Congress has swallowed Art. I, §8.
supct.law.cornell.edu/supct/html/93-1260.ZC1.html
I wouldn't bet the farm on Justice Thomas voting on the side of the government in this case.
Yeah hopefully. That's why they call it "freedom." And that's all it is. Freedom. It is not a panacea and it doesn't guarantee medical practices which you or anyone else deems optimum. But it is what many of us--although obviously not all FReepers--think is the bedrock of our society and Constitution.
Congress was given the power to regulate commerce "among the several states". This has been interpreted by the USSC to mean interstate commerce into the state. Although Congress has this power, it doesn't mean they must use this power.
I hope we're in agreement up to this point.
For the first 100 years of our country's existence, there was very little "interstate" commerce; most commerce was local. As interstate commerce increased, it was found that local, intrastate commerce could have an effect, in some cases a substantial effect, on the interstate commerce that Congress was attempting to regulate.
One early example that I found was the 1914 Shreveport Rate Case. Congress was regulating interstate rail shipping charges (it is irrelevant why or if this was a good idea). States were complaining that intrastate rail rates were kept artificially low and were being offset by higher interstate rates -- that, in effect, outside states were subsidizing local traffic. The USSC ruled, "It is for Congress to supply the needed correction where the relation between intrastate and interstate rates presents the evil to be corrected, and this it may do completely, by reason of its control over the interstate carrier in all matters having such a close and substantial relation to interstate commerce that it is necessary or appropriate to exercise the control for the effective government of that commerce."
But, the court added that Congress had no authority to regulate purely intrastate commerce: "Congress thus defined the scope of its regulation, and provided that it was not to extend to purely intrastate traffic. It did not undertake to authorize the Commission to prescribe intrastate rates, and thus to establish a unified control by the exercise of the rate-making power over both descriptions of traffic."
The judge made one other point, which really sums up my understanding of the commerce clause as it relates to state activity: "It is unnecessary to repeat what has frequently been said by this court with respect to the complete and paramount character of the power confided to Congress to regulate commerce among the several states. It is of the essence of this power that, where it exists, it dominates. Interstate trade was not left to be destroyed or impeded by the rivalries of local government. The purpose was to make impossible the recurrence of the evils which had overwhelmed the Confederation, and to provide the necessary basis of national unity by insuring 'uniformity of regulation against conflicting and discriminating state legislation'."
So, to answer your question (finally). Congress has no power over any intrastate activity (commerce) that does not or may not have a substantial effect on the interstate activity (commerce) that Congress is attempting to regulate. There were two recent USSC cases where it was ruled that Congress over-reached their use of the Commerce Clause: The Violence Against Women Act (VAWA) and the Gun-Free Schools Act (Lopez) were both ruled unconstitutional.
Congress may be regulating something you think they shouldn't be regulating. Fine. But that doesn't make it unconstitutional. Every two years we elect the people who write the laws. That is where we have the most impact, not sitting at our keyboards saying that the USSC is out of control.
Well, duh. Since there was very little interstate commerce before the 20th century, I would expect very little commerce clause case law before the 20th century also.
I mean, I could say, "My review of the case law indicates that the rulings by the FCC is but an innovation of the 20th century." C'mon.
The judge made one other point, which really sums up my understanding of the commerce clause as it relates to state activity: "It is unnecessary to repeat what has frequently been said by this court with respect to the complete and paramount character of the power confided to Congress to regulate commerce among the several states. It is of the essence of this power that, where it exists, it dominates. Interstate trade was not left to be destroyed or impeded by the rivalries of local government. The purpose was to make impossible the recurrence of the evils which had overwhelmed the Confederation, and to provide the necessary basis of national unity by insuring 'uniformity of regulation against conflicting and discriminating state legislation'."
Apparently, it is relevant as to why, and wheather it was a good idea.
Actually, we're not. The common meaning of the word "regulate", circa 1780 was "to keep in good working order". "To regulate commerce among the several states" was as much an establishment of responsibility as an enumeration of power.
Medical marijuana will have my support if and when it passes FDA approval. I see no reason to make an exception for this drug over any other potentially beneficial drug.
Just because you wish to live in a society that looks like Clan of the Cave Bear doesn't mean the rest of us do.
The leading New Deal utopian on this site - unmasked!
'As a society', indeed! What sort of Hegelian rubbish do you believe?
Methinks you are the ghost of Harry Hopkins...or Frances Perkins. ;^)
Purely within the confines of the commerce clause, I believe that is correct. Banning commerce with foreign nations over national security concerns, for instance would be a different matter.
I defer to your judgment. ;^)
Excuse me, but as a society, "we" (the Founders) decided that the federal government staying the hell out of intrastate business was the best way, overall, to prevent or minimize the harm caused by busybodies. When you want to repeal the IC clause, then do so and the FDA may be given jursidiction there. Until then--with the votes to back it up, you cannot maintain that as a society, we decided that on an intrastate basis.
Food and drugs are interstate business, not intrastate, and the Founders specifically gave Congress the right to regulate that commerce.
"to prevent or minimize the harm caused by busybodies"
The harm caused by busybodies? What's that? How about the harm caused by manufacturers?
"In 1937, a Tennessee drug company marketed a form of the new sulfa wonder drug that would appeal to pediatric patients, Elixir Sulfanilamide. However, the solvent in this untested product was a highly toxic chemical analogue of antifreeze; over 100 people died, many of whom were children."
Busybodies, my a$$.
Willow bark tea was used as a pain reliever for headaches looong before aspirin was available.
And yes, it works.
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