As I'm sure everyone knows by now, the Supreme Court has ruled in Gonzales v. Raich, the medical marijuana case in which the real question was one of federalism and the reach of the interstate commerce clause. California passed a law allowing patients with certain illnesses who would benefit from the use of marijuana to do so with the advice of their doctor. John Ashcroft, as attorney general, asserted the primacy of the federal Controlled Substances Act, arguing that it in essence trumped the state law. Further, he ordered DEA agents to arrest those in California who followed that law. Two of those arrests resulted in this court challenge, with the plaintiffs represented by Randy Barnett.
The real legal argument here was the meaning of the clause of the Constitution which gives Congress the authority to regulate "interstate commerce". The plaintiffs argued that because the marijuana was grown in their home and was never bought or sold, especially not across state lines, that clause does not apply and does not grant Congress the authority to regulate it, hence it was purely a matter of state police power and the California law should precede Federal law. The Supreme Court today rejected that argument in an unusual 6-3 alignment. John Paul Stevens wrote the majority opinion, which was joined by Justices Kennedy, Scalia, Souter, Breyer and Ginsburg. Sandra Day O'Connor wrote the dissenting opinion, which was joined by Chief Justice Rehnquist and Justice Thomas, who wrote his own separate dissent. And this is an excellent example of why so many of the criticisms aimed at Thomas are entirely unjustified, and why, despite some obvious differences of opinion, I regard Thomas as the most consistent and coherent of the 9 justices on the court and, oddly enough, the closest to being a libertarian (though Kennedy has real potential here as well). Thomas' dissent is far more lucid than the other opinions, and it cuts right to the chase immediately:
Respondents Diane Monson and Angel Raich use marijuana that has never been bought or sold, that has never crossed state lines, and that has had no demonstrable effect on the national market for marijuana. 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.
Respondents' local cultivation and consumption of marijuana is not "Commerce...among the several States." By holding that Congress may regulate activity that is neither interstate nor commerce under the Interstate Commerce Clause, the Court abandons any attempt to enforce the Constitution's limits on federal power.
Right on the money. It's also good to see that Thomas directly cites Barnett's work several times, particularly in noting that the meaning of "commerce" at the time of the founding, as consistently used, was solely used to mean trade or exchange, "not all economic or gainful activity that has some attenuated connection to trade or exchange." Another great example of how Thomas is a far more consistent originalist than Scalia is.
Who knows where this precedent will reach? Will the feds now try to regulate the tomatoes I grow in my backyard, because by growing them there rather than buying them at Safeway I have had some barely definable effect on "interstate commerce?" It's ridiculous to even suggest that two people who grow their own dope with no intent to ever move it beyond the bounds of their property have ANY remotely measurable impact on interstate commerce.
With this latest bashing of the states by SCOTUS, do you think we'll hear cries of outrage from the right-wingers who rail against "activist judges"? I mean, they're opposed to judicial interference in public policy, right?
I don't believe this decision sets a precedent in commerce clause jurispudence. This court has been fairly consistent up to now in limiting commerce clause reach. I believe that the courts just didn't have the stones to rule in a way that might eventually lead to the legalization of marijuana.
Hard cases do make for interesting jurisprudential bedfellows, huh? For the most part I think I can make sense of the alignments by viewing them through different lenses. The liberal bloc -- Breyer, Ginsberg, Souter, and Stevens -- generally favor economic regulations. All dissented, for example, in both Lopez and Morrison. The O'Connor, Rehnquist, and Thomas block can be explained on federalism grounds. While I've only glanced at it, Scalia's concurrence seems to work way too hard to justify the outcome. I have a hard time seeing what remains beyond the Commerce Clause power if his reasoning is correct. The cynic in me is tempted to chalk Scalia's opinion up to: (1) a preference for the state over criminal defendants; or (2) part of the ongoing "Scalia for Chief" campaign.
The big surprise in this for me is Kennedy. Of all the Justices, I figured he'd be the most inclined to buy Barnett's argument. About the most that can be said is that Kennedy's libertarian streak does have its limit. He sees pot regulation as rational, but saw sexual orientation discrimination, correctly, for the naked bigotry it so often tends to be.
I think they were just setting up the "Feds can criminalize drug X and the states cannot do anything about it" so that they can rule against Oregon's assisted suicide law down the road.
The interesting thing about assisted suicide is that it is people in extreme unmedicated pain who are interested in that option.
So by limiting access to pot which some users say works better than other drugs for relieving their pain the Feds are increasing the (small) demand for assisted suicide.
Not to worry. The Feds stated explicitly in the case that if the sick and dying want to take the risk of the blaclk market the Feds would encourage that option over home grown. In fact that was their purpose.
Way cool, huh?