Monday, June 06, 2005

No weed for the needy...

Gonzales v. Raich: the Supremes smacked down medicinal Mary-J today and with it any trace of Federalism left in America today. In the majority opinion, interstate commerce was (quite unnaturally, IMHO) sited as the main sticking point. Stevens wrote for the majority (thank the Volokhs):
As we stated in Wickard [v. Filburn, 317 U. S. 111, 128–129 (1942)], even if appellee’s activity be local and though it may not be regarded as commerce, it may still, whatever its nature, be reached by Congress if it exerts a substantial economic effect on interstate commerce.” Id., at 125.
The feds had blurry standing on the interstate commerce clause, so they went micro:
We have never required Congress to legislate with scientific exactitude. When Congress decides that the total incidence’ ” of a practice poses a threat to a national market, it may regulate the entire class. See Perez, 402 U. S., at 154–155 (quoting Westfall v. United States, 274 U. S. 256, 259 (1927)
No money was paid, the weed was grown in California, and the weed market in Nevada, Utah, and Oregon was not affected (er...a friend told me). The supremes argued that fears of the California weed hitting the black market was justification for the implementation of the commerce clause. Scalia wrote:
That simple possession is a noneconomic activity is immaterial to whether it can be prohibited as a necessary part of a larger regulation. Rather, Congress’s authority to enact all of these prohibitions of intrastate controlled-substance activities depends only upon whether they are appropriate means of achieving the legitimate end of eradicating Schedule I substances from interstate commerce. By this measure, I think the regulation must be sustained. Not only is it impossible to distinguish “controlled substances manufactured and distributed intrastate” from controlled substances manufactured and distributed interstate,” but it hardly makes sense to speak in such terms. Drugs like marijuana are ungible commodities. As the Court explains, marijuana that is grown at home and possessed for personal use is never more than an instant from the interstate market— . . . .

Scalia's remarks would hold water if I thought that people were really looking to funnel the Med Mary-J from California into the western weed market at large. This is hogwash. Weed can be had by anyone at almost anytime in almost anyplace in America. We are talking about a huge market. To suggest that Med-weed could even make a small dent in the many thousands of pounds of Owl toked by Americans is plainly naive. Stevens may think that throngs of sleepy-eyed hipsters are waiting at the gates of Cali for the gift of skunk-aplenty, but I think not. The Feds would be better served securing the southern border if they want to make a dent.

I should point out that many of my political leanings (mostly concerning land management) are fairly non-Federalist, but I also recognize that states rights to self-regulation in many areas. We currently have medicinal cocaine (codeine) and heroine (oxycontin), two drugs that are truly destructive if misused, yet we leave them on the market because they offer a benefit to those of us who are mature and responsible enough to use them without snorting them. That being said, I think fear of weed has just facilitated a federal power-grab.

P.S. I know jack shit about the law. Perhaps one of the cadre of lawyers here at INFDL would like to set me right.

Update: Here's a good breakdown. Thanks to Instapudit for the heads-up.

Noah Adds: This case is a tough loss for medical marijuana (a cause I support) and for federalism (a cause that I think is much more important). It’s disheartening that Scalia, the great proponent of originalism, fell for the horseshit theory that marijuana grown in my own backyard is somehow in "interstate commerce." (ALERT TO FEDERAL AGENTS: THIS IS A HYPOTHETICAL! THERE IS NO MARIJUANA IN MY BACKYARD! . . . IT'S ALL UNDER SUNLAMPS IN A BASEMENT CLOSET!)

Federalism is important because it maximizes freedom and allows states to experiment with different legislative schemes. If Oregon wants to allow assisted suicide, Nevada wants to legalize gambling and prostitution, and California wants to let sick people smoke “the pot,” the federal government should do nothing to prevent it. And if Utah wants to ban alcohol consumption, OK. These states have the right to pursue their own ideas and make laws based on local values. Their citizens have the right to order their society in the way they think best. If the federal government imposes its own vision on all of us, freedom is reduced. No matter what you think about medical marijuana, today’s Supreme Court decision represents a massive loss of liberty. The people of California (and other states) decided that they wanted to allow medical marijuana, but the Federal Government stepped in and said “mama knows what’s good for you!” This paternal dogoodery is absolutely sick-making.

The concept of federalism has been nearly completely destroyed by the commerce clause. The Supreme Court (beginning with the atrocious “Wickard v. Filburn”) has interpreted the clause in such a way that these days pretty much any activity can be included in “interstate commerce.” And this means that the federal government can stick their nose in anywhere they want.

There was hope for federalism a few years ago when the Court delivered the Lopez decision, which said that Congress did not have the right to pass a law regulating the possession of firearms in school zones because there was no conceivable connection between weapons possession in a school zone and interstate commerce. At the time I hoped that this would be the first in a string of decisions to reassert federalism, but I have since been disappointed.

If marijuana grown in my backyard and consumed only by myself is in interstate commerce, then pretty much everything is in interstate commerce, and federalism is in real trouble. It’s sad that Scalia doesn’t see this. Kennedy’s vote was almost as disappointing. He was with the majority in the Lopez decision, but decided to render that decision obsolete with today’s ruling.

The rest of the conservatives did well on this one at least. Thomas, Rhenquist and O’Connor all voted to protect state medical marijuana laws. It was the liberals on the court that voted to assert the power of the federal government and strike down medical marijuana.

My hope is that this decision, and others like it, will awaken liberals to the value of federalism. The libs have been crapping on federalism for years because they have had control of congress. It only got in their way. Now that Republicans are running things it’s possible that the importance of federalism will soon become perfectly clear. Someday we may get back to the form of government that the framers intended.

Update from Sean: I really wonder if the marijuana issue has the staying power of the states rights issue, as Noah points out. No doubt this will open the eyes of many in the lefty dope-smoker demographic, but the really perceptive ones will see what we've been talking about all along: the less the government stands on your sack, the better. The best quote to come of this is from Clarence Thomas:
Thomas said the ruling was so broad "the federal government may now regulate quilting bees, clothes drives and potluck suppers throughout the 50 states."
Well said.

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