Posted on 12/17/2004 9:12:14 AM PST by inquest
Ashcroft v. Raich, the Supreme Court's medical marijuana case, isn't really about medical marijuana. It's about power -- the power of Congress to exert control, and the power of the Constitution to rein Congress in.
The named plaintiff in this case is Angel McClary Raich, a California mother of two afflicted with an awful array of diseases, including tumors in her brain and uterus, asthma, severe weight loss, and endometriosis. To ease her symptoms, doctors put her on dozens of standard medications. When none of them helped, they prescribed marijuana. That did help -- so much so that Raich, who had been confined to a wheelchair, was again able to walk.
Raich's marijuana was supplied to her for free from two donors who grew it in California, using only California soil, water, and supplies. Under the state's Compassionate Use Act of 1996, which exempts the use of marijuana under a doctor's supervision from criminal sanction, all of this was perfectly legal.
But under the federal Controlled Substances Act of 1970, the possession of marijuana for any reason is illegal. The question for the court is which law should prevail in this case: state or federal?
Normally that wouldn't be an issue. Under the Constitution, a valid exercise of federal power trumps any conflicting state law. But is the application of the federal drug law to Raich a valid exercise of federal power? Does Congress have the right to criminalize the possession of minuscule amounts of marijuana, not bought on the illicit drug market, and used as medicine?
Americans often forget that the federal government was never intended to have limitless authority. Unlike the states, which have a broad "police power" to regulate public health, safety, and welfare, the national government has only the powers granted to it by the Constitution. Where does the Constitution empower Congress to bar pain-wracked patients from using the marijuana their doctors say they need?
According to the Bush administration, it says it in the Commerce Clause, which authorizes Congress to "regulate commerce . . . among the several states." And it is true that those words have long been treated as a broad grant of power allowing Congress to control almost anything it chooses.
The Supreme Court's most expansive reading of the Commerce Clause came in Wickard v. Filburn, a unanimous 1942 decision about a farmer who grew more wheat on his farm than was allowed under federal law. Roscoe Filburn argued that his excess wheat was none of Washington's business, since it all remained on his farm -- some of it he ground into flour, for his family, some he fed to his livestock, and some he planted the following year. None of it entered interstate commerce, so what right did Congress have to penalize it?
But a unanimous Supreme Court ruled against Filburn. It held that his 239 excess bushels of wheat affected the national wheat market whether he sold it or not, since wheat he produced for his own use was wheat he didn't have to buy elsewhere. If other farmers did the same thing, demand for wheat -- and its price -- would fall. That ruling threw the door open to virtually unbridled congressional activism. After all, if wheat that never left the farm it grew on was tied to "interstate commerce" and therefore subject to federal control, what wasn't? Not surprisingly, the years since Wickard have seen a vast expansion of federal authority.
Still, the Supreme Court has never actually held that congressional power under the Commerce Clause is unlimited. Twice in the past 10 years, in fact, it has struck down laws that could not be justified as commerce-related even under Wickard's hyperloose standard. But if the government gets its way in this case, the court really will have remade the Commerce Clause into a license to regulate anything. For unlike Filburn -- who was, after all, engaged in the business of running a farm and selling grain -- Raich is engaged in no commercial or economic activity of any kind. She is not buying or selling a thing. The marijuana she uses is not displacing any other marijuana.
But that point seemed lost on the court during last week's oral argument. "It looks like Wickard to me," Justice Antonin Scalia said. "I always used to laugh at Wickard, but that's what Wickard says."
Well, if Wickard says that Congress can ban or penalize Angel Raich's marijuana -- noncommercial, medically necessary, locally grown, and legal under state law -- then it says Congress can reach absolutely any activity at all. When I was a law student in the 1980s, I didn't laugh at Wickard, I was appalled by it. If Ashcroft v. Raich is decided for the government, future law students will have an even more appalling case to study.
If it works, is controlled and prescribed by a doctor, it wouldn't matter to me if they smoke it, inject it or by what means it eventually reaches the blood stream.
I find it an illogical premise that this whole desire for medical use of marijuana is just a way to open the gates for a bunch of dope smokers.
OK Ok RP - please produce your reference to this interesting little pharmacology factoid.
Or did you just invent this to support your totalitarian bent?
If the government's argument that there can be no "as applied challenge" to commerce clause legislation prevails, it may be the last one.
Heh. Follow the money.
This has been interpreted as commerce from the point of origin within the state to its final destination within another. It does not, however, give Congress the power to regulate commerce that is entirely within one state.
BUT, if Congress IS regulating interstate commerce and some intrastate activity "substantially effects" Congress' interstate regulatory efforts, the Necessary and Proper Clause gives Congress the power to write laws covering that particular intrastate activity.
Think about it. Do you believe the Founding Fathers would give Congress the power to regulate interstate commerce, yet allow the individual states to undermine and subvert their regulatory efforts? Why give Congress the power to begin with?
As many a court have said, "this is not our domain". This is between the people and their elected representatives.
And I agree. If the people don't like the drug laws, don't like what Congress is doing with their authority, it is up to the people to remedy that, not the courts.
If he used to laugh at Wickard, presumably that was because it was so ridiculous and unbelieveable a decision. "...but that's what Wickard says"???!!! So bleeding what - is Scalia a robot? He is in exactly the perfect position to do something about it, which none of us can - he's on the Supreme Court, for crying out loud. He's not bound by precedent - if he was, then the Court could never have overruled Plessey v. Fergusen with Brown v. Board, and segregation would still be the law of the land. The Court is constantly interpreting the law, and finding that old decisions are either incorrect or inapplicable. What makes this case any different?
Well, if Wickard says that Congress can ban or penalize Angel Raich's marijuana -- noncommercial, medically necessary, locally grown, and legal under state law -- then it says Congress can reach absolutely any activity at all. When I was a law student in the 1980s, I didn't laugh at Wickard, I was appalled by it. If Ashcroft v. Raich is decided for the government, future law students will have an even more appalling case to study.
I couldn't agree more. This case is perhaps the single most important case that most of us will ever see, not because of the marijuana/War on Drugs issue (the MJ is merely a vehicle for deciding the larger issue), but because this will determine, for decades or longer into the future, what the role of the fed.gov will be vs. that of the states. Is it to be the Lord and Master, dictating to the states and people because of its outrageously expanded Commerce Clause powers, or is it to return to its traditional and intended role as a regulator of INTERSTATE commerce? We all are waiting and watching.
I don't see how. All you have to do is examine the activity in question, and inquire whether regulation of that activity is within the constitutional purview of the federal government. Anything else just unnecessarily muddies the issue.
There was no need for the 18th. The temperance reformers thought it would be harder to overturn than a federal statute.
Once the 18th was passed, the 21st was necessary to repeal it. Read Section 2 of the 21st amendment -- it turns the legalization power over to the states from the federal government.
Amen. To the hypocrites WOD supporters who think otherwise, then at least be consistent with your fascism and outlaw alcohol, cigarettes and caffeine. I don't argue the case anymore because talking with WOD supporters is like reasoning w/ Rats; name calling and false "facts" is all they can come up with, not logic.
If you're going to take an originalist approach to the issue, it's abundantly clear that that power was listed in the Constitution so as to take it away from the states, not to give Congress any new powers. There isn't a scintilla of evidence from the writings of either federalists or anti-federalists at the time that the purpose of the clause was to give the federal government any restrictive power over actual commercial transactions within the country. And accordingly Congress never tried to exercise such a power until 100 years after the Constitution went into effect.
PS, no one buys it.
Fine. Pass an amendment similar in wording to the 21st which, in Section 2, turned the alcohol legalization decision over to the states.
Soory, I stutter . . .
Uh, oh... I can feel the inrush of Freeper pot-heads flocking here to post their "Legalize Marijuana NOW!!!" rants. It's not a good feeling...
Perhaps you should do your homework and read up on Soros and his quest for total drug legalization and how he is using the medical marijuana scam as the "camel's nose under the tent" toward total drug legalization.
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