Medical marijuana: The real stakes

TownHall.com ^ | 12-10-04 | Jeff Jacoby

[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.

[robertpaulsen]

"Few and defined" describe the number of powers, not the extent of each power.

The Commerce Clause is powerful. It has to be in order for Congress to fulfill their duties when regulating commerce.

If the Commerce Clause were weak, the individual states could run roughshod all over Congress. Why even give this power to Congress if the states could frustrate them at will?

[William Terrell]

ONLY IF Congress is regulating that interstate commerce to begin with.

The meaning of this sentence escapes me, when it is in response to, "Congress can prohibit any substance, item and activity because all those can be related to interstate commerce in some way."

What's with you? You'd restrict Congress to regulating interstate commerce only, since that's your interpretation of "among the several states". Then you'd allow the states to engage in commerce and activities that would frustrate or negate congressional efforts at their interstate regulation? Is that right?

The meaning of that paragraph escapes me, too. I'd restrict Congress to using 1-8-3 to the purpose for which it was designed and intended. The purpose has been posted to you, and on threads like this, probably two dozen times, in the framers' own words.

The current "interstate regulation" has nothing to do with the intention of 1-8-3. Using the SC expansion of 1-8-3, it can be used to federally prohibit any substance, item or activity in the United States. This is fact and not arguable.

What, do you think this is some kind of game? Some joke you can play with a supposed "loophole" in the U.S. Constitutiuon?

What in the world are you talking about? "Loophole" in the constitution? How about a "loophole" through which Congress can establish minute management of any individual's life.

Not very wise.

You'd turn the entire Constitution on its head just to get your precious marijuana legalized. If this were about regulating salt instead of marijuana I wouldn't be hearing a commerce clause peep out of you and most of the pro-marijuana legalizers.

The point is not whether cannabis should be legalized, but why it was illegalized and by what means. If this were about salt, or about wheat, you would be hearing from me, because a unconstitutional ruling by any court is as repugnant to the body public as homosexuality is to the way creatures are designed.

Yes, Congress has the power to regulate just about everything. Maybe everything. Time after time, the courts have said that this commerce clause power is awesome. But they've also added that it is not up to them to restrict it. It is up to the people who elected their congressmen in the first place.

No, that's not the way it works. Each branch is to keep constitutional watch on each other branch, per Marbury v Madison. The people come up with the constitutional as written limitations on these branches.

The courts can make unconstitutional rulings as easily as Congress can make unconstitutional legislation and the president can sign unconstitutional bills.

But, actually, we are moving ahead on cannabis and other drugs, in spite of the resistance. People with your agenda are vanishing as the devastation of the drug war is coming home to roost in more and more people families. The public sentiment has been growing for three decades against it, and has been accelerating for the last decade.

You are close to becoming a Dodo, my friend. Your time is rapidly passing, on the dope issue. It is becoming very plain just who the dopes are.

[inquest]

"Few and defined" describe the number of powers, not the extent of each power.

You have absolutely got to be kidding me.

"Hey, we're creating a new government, but don't worry - it only has one power (the power to regulate everything in sight)." Yeah, that would have gone over like a lead balloon in 1787.

[tacticalogic]

The Commerce Clause is powerful. It has to be in order for Congress to fulfill their duties when regulating commerce.

If the Commerce Clause were weak, the individual states could run roughshod all over Congress. Why even give this power to Congress if the states could frustrate them at will?

The Commerce Clause is quite sufficiently robust to empower Congress to impose whatever restricions are necessary on the states to fulfill their duties under the original intent of the clause. If they are being frustrated by the states it is because that have sought to use that power outside it's intended purpose.

If the rusty muffler won't budge, it's time to consider the fact that you're using the wrong kind of hammer. If you don't have the right kind of hammer then you shouldn't be messing with it in the first place.

[robertpaulsen]

For a like reason, I made no reference to the "power to regulate commerce among the several States." I always foresaw that difficulties might be started in relation to that power which could not be fully explained without recurring to views of it, which, however just, might give birth to specious though unsound objections. Being in the same terms with the power over foreign commerce, the same extent, if taken literally, would belong to it. Yet it is very certain that it grew out of the abuse of the power by the importing States in taxing the non-importing, and was intended as a negative and preventive provision against injustice among the States themselves, rather than as a power to be used for the positive purposes of the General Government, in which alone, however, the remedial power could be lodged.

Madison is talking about the "power to regulate commerce".

The Commerce Clause has only one power, and that one power is applicable to three areas:

The power to regulate commerce a) with foreign Nations, b) among the several States and c) with the Indian tribes.

Having only one power applying to three different areas bothered Madison. Paraphrasing, he says, "(T)he power to regulate commerce among the several States, (b)eing in the same terms with the power over foreign commerce, the same extent, if taken literally, would belong to it."

In other words, if you take the "power to regulate commerce" literally, you could apply it to the same extent over all three areas. Not good.

So, why was Madison concerned to begin with? Well, remember in his previous letter he told Cabell that the power to regulate commerce with foreign nations gave Cabell the authority to tariff imports for the good of local manufactures. Now Madison is thinking about that, and it dawns on him that Cabell could just as easily apply this same definition of "regulation" to commerce among the states or commerce with the Indian tribes.

Madison writes this second letter to remind Cabell that the power to regulate commerce "grew out of the abuse of the power by the importing States in taxing the non-importing, and was intended as a negative and preventive provision against injustice among the States themselves". He did not want Cabell to apply the "power to regulate commerce" to the states the same way he applied it to foreign nations (ie., tariffing a state for the positive purposes of the General Government).

That's the way I read it.

[robertpaulsen]

The power to declare war? The power to tax? The power to borrow money?

Those aren't scary?

[TKDietz]

"Yeah, kinda like the pre- and poet-1999 numbers in the NHSDA data, huh?"

At least those are both government surveys done by the same government agency using very much the same questions, survey methods, and using the same methods for finding people to survey. The University of Alaska survey was conducted by students who are not government employees. We don't know anything about their survey methods, how they came up with their lists for their survey samples, what questions were asked, how many people they surveyed, none of that. And we don't know how much more candid teens would be about illegal conduct with college student surveyors collecting data for a University than they would be for government surveyors questioning them about drug use for the government. I feel a lot more comfortable comparing SAMHSA's old numbers with their new numbers than I would comparing some one time college survey for the state of Alaska with SAMHSA's old national numbers.

The reason there is no state data from SAMHSA for 1990 or whenever it was that the college in Alaska did their survey is that apparently SAMHSA didn't start collecting individual state data and publishing the results until 1999.

[robertpaulsen]

"Congress can prohibit any substance, item and activity because all those can be related to interstate commerce in some way."

You're correct. I read it wrong. But it is better phrased as, "Congress can prohibit any substance, item and activity because IF all those can be related to interstate commerce in some way."

Lopez and VAWA are testaments to the fact that not all activities are related to interstate commerce.

"it can be used to federally prohibit any substance, item or activity in the United States. This is fact and not arguable."

That is a lie, and I provided proof above.

"I'd restrict Congress to using 1-8-3 to the purpose for which it was designed and intended. The purpose has been posted to you,"

What, to encourage commerce among the states? Not true, and I gave you a link to support that. Didn't you read it?

[robertpaulsen]

"If they are being frustrated by the states it is because that have sought to use that power outside it's intended purpose."

Then why not leave that power with the states if the states can frustrate it whenever they want? Not much of a designated power, is it? Just let the states vote on each regulation.

Oh, and keep in mind we're talking about just a few states here trying to screw things up for the rest of the country, just so they can smoke dope.

[tacticalogic]

Madison writes this second letter to remind Cabell that the power to regulate commerce "grew out of the abuse of the power by the importing States in taxing the non-importing, and was intended as a negative and preventive provision against injustice among the States themselves". He did not want Cabell to apply the "power to regulate commerce" to the states the same way he applied it to foreign nations (ie., tariffing a state for the positive purposes of the General Government).

That's the way I read it.

The text doesn't seem to support that interpretaion. Madison didn't say there were differences in the way it should be applied for the "positive purposes of the General Government". He said it wasn't intended to be applied for the "positive purposes of the General Government", period.

[robertpaulsen]

"He said it wasn't intended to be applied for the "positive purposes of the General Government", period."

In his first letter, he told Cabell that it could be used that way (with foreign nations).

Are you saying he wrote this letter to retract the first letter?

[tacticalogic]

Then why not leave that power with the states if the states can frustrate it whenever they want? Not much of a designated power, is it? Just let the states vote on each regulation.

As long as they don't enact regulations that result in a direct or contrived tariff on interstate commerce, they can do that. If they do, Congress has the power to stop them. Can you show me a single instance where as state has enacted such a tariff or equivalent contrivance that has been damaging to the flow of interstate commerce and Congress has been powerless to stop them without reliance on the New Deal Commerce Clause?

[tacticalogic]

In his first letter, he told Cabell that it could be used that way (with foreign nations).

In the second letter, he told Cabell that it can't be used that what (among the several states).

[tacticalogic]

(*&^% what=way.

[robertpaulsen]

I agree.

The only thing left is to define "used that way".

IMO, Madison was saying that the commerce clause could not be used to regulate the commerce among the states unequally for the "positive purposes of the General Government".

[tacticalogic]

IMO, Madison was saying that the commerce clause could not be used to regulate the commerce among the states unequally for the "positive purposes of the General Government".

Once again the text of the letter doesn't support that interpretation. With regards to regulating commerce among the several states, he said the commerce clause could not be used for the "positive purposes of the General Government", period.

[William Terrell]

"Congress can prohibit any substance, item and activity because IF all those can be related to interstate commerce in some way."

Everything of any note and use to individuals can be prohibited under the substantial effects doctrine, because any item of any note and use to individuals can be made fit the substantial effect doctrine.

You totally miss the point.

That some may not be deemed substantially affecting interstate commerce is at the whim of Congress and the Supreme Court and not unilaterally banned from their pens and rulings in spite of whether they may want it deemed so.

Otherwise is the rule of men and not of law. And you celebrate it!

What, to encourage commerce among the states? Not true, and I gave you a link to support that. Didn't you read it?

You haven't given anything to me.

Let ask you something, do you believe we have and are meant to have a "living constitution", so that it may be melted and bent to fit the prejudices of the mob at any given time?

[robertpaulsen]

I don't agree.

Here you have "to regulate commerce" in three areas (with foreign nations, among the several states, and with the Indian tribes).

You pick just one of those, "to regulate commerce among the several states", and say that such regulation cannot be used for the "positive purposes of the General Government". But in the other two areas it can, huh?

I don't buy that at all.

[robertpaulsen]

"at the whim of Congress and the Supreme Court"

Yeah, 535 members of Congress must vote in the majority, The President must sign it, and the legislation must survive a Supreme Court challenge.

Other than that, yeah, the Commerce Clause is simply out of control.

" You haven't given anything to me."

I gave you the link in my post # 327 which refutes your "the commerce clause was meant to encourage commerce" fallacy.

[tacticalogic]

You pick just one of those, "to regulate commerce among the several states", and say that such regulation cannot be used for the "positive purposes of the General Government". But in the other two areas it can, huh?

I didn't pick one, Madison did, and by his account this was the general consensus among those who drafted and ratified the Constitution. They considered the federal government's relationship with the states to be of substantially different nature that it's relationship with foreign governments, and rightly so.

I don't buy that at all.

So? You can "buy" or not whatever you want, just don't expect anyone else is going to join you without a better argument than you've been able to come up with so far.