Posted on 12/01/2004 10:58:47 AM PST by xsysmgr
Angel McClary Raich is seriously ill. Diagnosed with an inoperable brain tumor and several complicating conditions, Raich found traditional medical treatments to be of little use. Having exhausted every legal alternative, her doctor recommended that she try marijuana — and it worked. Like many individuals suffering from chronic pain or loss of appetite, Raich found that marijuana alleviated her symptoms substantially. Yet to continue with this treatment, Raich, and those who supply her with marijuana free of charge, had to break federal law. Under California law, Raich can possess and use marijuana pursuant to a doctor’s prescription or recommendation. Yet according to the federal government, even such minimal marijuana possession approved by a doctor remains illegal.
Fearing potential prosecution, Raich went to federal court seeking a declaratory judgment that, among other things, the federal government lacks the constitutional authority to prohibit simple marijuana possession for personal medical use. Represented by noted libertarian law professor (and sometime NRO contributor) Randy Barnett, Raich argued that, at least as applied to her situation, the federal Controlled Substances Act (CSA) is unconstitutional. This week, the Supreme Court heard oral arguments in her case, Ashcroft v. Raich. At stake is more than California’s effort to legalize the medical use of marijuana. A decision for the federal government could send federalism and the constitutional doctrine of enumerated powers up in smoke.
On behalf of Raich, Professor Barnett argued that the cultivation and possession of marijuana “solely for the personal medical use of seriously ill individuals, as recommended by their physician and authorized by State law” is simply beyond the reach of federal power. Under our constitutional structure, states retain “broad powers to define criminal law, regulate medical practice, and protect the lives of their citizens.” Federal power, on the other hand, is limited to the specific grant of enumerated powers in the Constitution, and does not reach mundane questions of criminal law. No matter how worthy the purpose of a given federal statute, it remains invalid if it exceeds the constitutionally proscribed bounds.
The federal government maintains that it has the power to prohibit the possession of any and all drugs, even in infinitesimal amounts, and therefore that California’s effort to legalize medical marijuana is preempted by federal law. Under the CSA, it is a federal crime to possess “schedule I” drugs like marijuana, with or without a doctor’s prescription. Like most federal regulatory statutes, the CSA was enacted pursuant to Congress’s power to “regulate commerce...among the several states.” As currently understood, this clause grants Congress the broad power to regulate commercial enterprises and other activities that have a “substantial effect” on interstate commerce. There is little question that this entails the power to regulate the production, distribution, and sale of pharmaceuticals, particularly insofar as medical markets are of national scope. Congress can empower the Food and Drug Administration to set conditions on the sale of approved pharmaceuticals and may authorize the Drug Enforcement Agency to arrest those who buy and sell drugs contrary to federal law.
In this case, the federal government also maintains that it can prohibit the simple possession of a drug for medical purposes, even when authorized and regulated by a validly adopted state law, and even if conducted in a wholly noncommercial fashion. Such power, the federal government asserts, is necessary to maintain a comprehensive federal regulatory system for the use and distribution of drugs. Moreover, even the mere possession of drugs can “substantially affect” interstate commerce, as there is a vibrant, albeit illegal, interstate drug market.
This argument proves too much. Under the government’s reasoning there is no activity beyond Congress’s grasp — a position the Supreme Court has repeatedly rejected over the past ten years. Essentially, the Justice Department maintains that the power to adopt broad economic regulatory schemes necessarily entails the power to reach the most inconsequential, noncommercial conduct that occurs wholly within the confines of a single state. Even at the height of federal power during the New Deal, the Supreme Court never authorized an assertion of federal power as expansive as is at issue here. Should the Court uphold the assertion of federal power in this case, constitutional limitations on the exertion of enumerated federal powers could well disappear.
Under the federal government’s logic, Congress could enact an omnibus child-care statute, regulating the care and feeding of children and infants in private homes, because child care is often an economic enterprise and the federal government could assert an interest in regulating the market for child-care services. Not even the infamous case of Wickard v. Filburn, in which the Supreme Court upheld Congress’s power to regulate the planting of wheat on an individual farm, reached this far. At least farmer Filburn was engaged in economic activity — planting wheat as part of a larger economic enterprise (his farm). Angel Raich’s marijuana possession, however, lacks even this passing connection to economic activity. It was on this ground that the Supreme Court struck down federal statutes prohibiting gun possession in or near schools and penalizing gender-motivated violence. In neither case could the activity be remotely considered “economic” — nor can the local marijuana possession at issue in Ashcroft v. Raich.
The importance of the case can be seen in the line-up of amicus briefs supporting Raich’s case. Noted conservative legal scholars, including former Reagan and Bush Assistant Attorney General Douglas Kmiec and former Bush solicitor general Charles Fried, signed or authored briefs urging the Court to recognize that federal power cannot reach this far. Several states have done the same. Few groups not directly involved in antidrug efforts have lined up on the Justice Department’s side.
Some drug warriors fear that a victory for Raich could hamper federal antidrug efforts because drug possession is much easier to prove than is the intent to distribute. Yet possession of small amounts of marijuana is rarely prosecuted under federal law as it is. State and local governments are responsible for most enforcement of low-level drug crimes. If petty possession needs to be prosecuted, it can be under state law. Just as the Supreme Court’s invalidation of the Gun Free School Zones Act did not produce a flood of firearms in the nation’s schools, striking down the application of federal law in this case won’t end marijuana prohibition. Even in California, marijuana possession for anything other than medical use remains illegal. If arrested, a medical-marijuana user bears the burden of proving that it was for medicinal use.
Alabama solicitor general Kevin Newsom filed a particularly powerful brief on behalf of several states with strong antidrug policies, maintaining that California’s medical-marijuana law poses no threat to those states, such as Alabama, where marijuana remains illegal. Alabama prosecutes drug crimes vigorously, including pot possession, and has some of the harshest drug-possession penalties in the country. Yet Alabama and other states intervened to “support their neighbor’s prerogative in our federalist system to serve as ‘laboratories for experimentation.’” While agreeing with drug prohibitionists that California’s medical-marijuana policy is “profoundly misguided,” Alabama argued that upholding the federal prosecution of medical-marijuana users is a greater threat than letting sick people get high in California pursuant to a validly enacted state law.
From the earliest days of the Republic, the Supreme Court has emphasized that the Constitution creates a federal government of “limited and enumerated powers.” There is no federal “police power” authorizing Congress to cure every injustice or right every wrong. Rather, the federal government was entrusted with those limited and discrete powers necessary for national cohesion. Matters of truly national import — matters that cannot be handled by state and local governments acting alone or in concert — are entrusted to the federal government. As made explicit in the Constitution’s texts, all others powers remain in the hands of the states and the people.
Despite its apparent importance to drug warriors, Ashcroft v. Raich is not about medical marijuana or drug prohibition. Nor is it about the wisdom, or lack thereof, of allowing chronically ill individuals to smoke weed for medicinal purposes. Rather, it concerns the limits of federal power under the Constitution. Federalism does not play favorites. It limits the scope of federal power to pursue liberal and conservative ends alike. If a majority of the Court remembers this lesson, Angel Raich will get to keep her medicine. More important, the nation will keep the constitutional limits on federal power.
— Jonathan H. Adler is an associate professor and associate director of the Center for Business Law and Regulation at the Case Western Reserve University School of Law. He is an NRO contributing editor.
commerce clause is a gaping hole through which evil spews bump
That guy is probably more interested in the entertainment value than any other characteristic of MJ.
IF we're going to have "medical marijuana," then at least let's treat it like all those medicines you see on TV, such as Nexium. It may have some medical benefits for some people, but it carries a wide assortment of risks, whichi must be disclosed, and yoou should only be able to get it by prescription from a legitimate doctor.
I can see the TV ad now: "Talk yo your doctor about pot today."
By the way, isn't the existance of a state pot law irrelevant as to whether or not the activity is reachable by the commerce clause? If pot is grown at home for home use--medical, therapeutic, or recreational--what difference does it make as to whether or not it is economic activity? Seems to me it doesn't factor in at all, which is why I am wondering if a decision for Raich here means home grown is outside federal, if not state, jurisdiction. Thoughts?
Did you read the article? I am definitely interested in legalized marijuana, but it's almost beside the point in this case. The real issue, the big impact of this case, has to do with the commerce clause and the reach of the federal regulators according to the enumerated powers of the Constitution. As interested as I am in being able to legally do what I do anyway, this case is much more important than eliminating my exposure to risk.
I was just thinking the same thing!
Heck, everyone is told how dangerous smoking tobacco is. I'm sure marijuana smoke has some (not all, I know) of the same nasty stuff.
I don't know all the details of the case, and I'm not an expert on "state vs federal" issues, but I suppose if federal regulation of marijuana is not allowed then maybe the Food and Drug Administration is unconstitutional as well.
Again, I don't have all the facts and will try to check the thread later to learn something. (Thanks in advance!)
But there are some in the media who are just too anxious to see this as some kind of dilemna for conservatives - pitting two of their stereotypes of conservatives against each other.
You can see why I'd be skeptical of that kind of approach . . .
:)
I bet it would if it made gun possession in schools legal.
What a stupid comparison.
This is a slam dunk. No way the SC tears down the whole facade of the Federal leviathan over medical marijuana, of all things.
Homegrown pot is dangerous, take one of these synthetic mind altering pills My company produces.
-Your friendly neighborhood drug company
They could as easily have regulated MJ on the basis of "purity" under that clause as any other.
You really have to read through all the court decisions and legislation passed over the years to get a real feel for the federal power to "regulate" drugs ~ this is the tip of a very large iceberg.
Frankly, I think what ought to be done is to take all the druggies out on the side of Mt. St. Helens. Stuff them full of MJ. Let them do a fullbody toke, and be done with it.
Bet some of them would like that eh?!
It may be forced to choose between that and keeping the Republic.
I agree.
"Under our constitutional structure, states retain “broad powers to define criminal law, regulate medical practice, and protect the lives of their citizens.” Federal power, on the other hand, is limited to the specific grant of enumerated powers in the Constitution, and does not reach mundane questions of criminal law. No matter how worthy the purpose of a given federal statute, it remains invalid if it exceeds the constitutionally proscribed bounds."
This is your brain on drugs. The federal government routinely imposes its will on the states in every 'mundane matter', from abortion to penology, private property rights, the environment, health care, transportation, employment-you name it. The idea of a limited federal government is, unfortunately, absolutely archaic and purely academic. Ever since the surrender at Appamatox, the federals will use every device, from funding to armed force, to regulate the conduct of and within the several states. That's just reality. The Supremacy Clause IS the Constitution and Enumerated Powers are only a memory.
Keep marijuana safe, green, and illegal!
No d*mn taxes!
Without the "commerce clause", the Republic (such as it has become) will most definitely not stand.
Not exactly: it's the MISUSE & MISINTERPRETATION of the commerce clause that is causing this problm.
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